11 December 2013

Dear Readers,

Priorities in this Jusletter IT are issues of data protection, copyright laws, e-commerce, the judiciary computer science (e-Justice), public procurement, human rights and media law.

Privacy is – since the submission of the draft of the new General Data Protection Regulation by the European Commission on 25 January 2012 – a very current issue of legal informatics. At present, the question, whether an adoption is still possible in this term of Parliament, arises. «Big Data» stands for the new challenges in privacy and gives priority to the economic value of the data. A property right could help here, especially for improving the question of the usefulness.

With Rolf H. Weber, an outstanding author has touched the problem of Big Data (Big Data: Sprengkörper des Datenschutzrechts?). Renate Riedl takes the important issue of practical handling of requests for information (Praktischer Umgang mit Auskunftsbegehren gemäß § 26 DSG 2000 für Unternehmen). Ursula Uttinger deals with «private regulation through certification»: Datenschutzzertifizierungen – Entwicklungen im deutschsprachigen Raum. Alex Schweizer discusses the new General Data Protection Regulation (Die neue EU-Datenschutzverordnung wird kommen: Ein Kurzüberblick über markante Eckpunkte). Christian Tautschnig brings a first analysis of Data Protection Implications of E-Disclosure in (Online-) Arbitration.

The new media brings new problems that must be solved with old concepts. This requires increased jurisprudential analysis in the transitional period. Three articles deal with such topics: Peter Studer: Das Öffentlichkeitsgesetz (BGÖ) ist heute ein Werkzeug für investigative Journalisten; Clemens Thiele: Scripted Reality – Alte Persönlichkeitsrechte gegen neue Fernsehformate; Verena Stolz: Bekannte Marke als zulässiges Keyword?

Elisabeth Hödl discusses electronic helpers: Software-Agenten: juristische Praxis und rechtliche Einordnung.

Nicole Beranek Zanon discusses the liability according to civil law about copyright infringement under Swiss law (Zivilrechtliche Haftung bei Urheberrechtsverletzungen nach Schweizer Recht) and takes a closer look at paralleles to the ruling of the German Federal Court relating to File-Hosters.

The judgement «Delfi» brings developments in the appropriate liability for Internet Service Providers: Joanna Kulesza: Delfi v. Estonia before the ECHR – editorial liability for Internet service providers? Based on media law approaches for publishers, the ECHR comes to a liability, if no convincing measures are taken to prevent the deterioration of any individual right.

Nuscha Wieczorek deals with legal aspects of school «gossip» among students: Voraussetzungen zulässiger schulischer Disziplinargewalt über Meinungsäusserungen von Schülern im Internet.

A Swiss specialty are the terms and conditions of SIK (Swiss computer science conference), an association of computer science users in the field of public administration: Urs Egli and Michael Merz: Die Bedeutung der AGB SIK bei Informatikbeschaffungen der öffentlichen Hand.

The increasing use of IT in e-Justice opens the discussion of impairment of their decision-making autonomy: Christoph Spindler: E-Justice im Verhältnis zur richterlichen Unabhängigkeit (secondary publication following «Justice - Justiz - Giustizia» 2013/3).

Two contributions are focussing on technical legal informatics: Fritjof Haft treats the information aspect: Von der Akte zur Information and Andreas Glarner and Stefanie Debrunner are attending to 3D printing technologies: 3D-Drucktechnologien (secondary publication following Jusletter 2 September 2013).

Furthermore, Vytautas Čyras and Friedrich Lachmayer are applying to the Extended Legal Thesaurus: Legal Terms as a Modally Indifferent Substrate.

Having said this, we hope you enjoy reading this issue

Wien/Bern, in December 2013

Erich Schweighofer and Franz Kummer

DATA PROTECTION

Big Data: Sprengkörper des Datenschutzrechts?

Rolf H. Weber

This article addresses data protection problems arising out of the use of Big Data technologies. In particular risks associated with complex analytical tools which allow for the identification of an individual as well as the loss of control over one’s personal data are highlighted. The main focus is thereby placed on developing new concepts to ensure data protection in the context of Big Data analysis.

Praktischer Umgang mit Auskunftsbegehren gemäß § 26 DSG 2000 für Unternehmen

Renate Riedl

The article gives an overview for private controllers, especially companies, on dealing with the right of information according to Section 26 DSG 2000. In this regard, it explains the most important issues such as receipt of a request, preconditions giving rise to the right to information, the extent of information to be provided and the possibilities to limit a request.

Datenschutzzertifizierungen – Entwicklungen im deutschsprachigen Raum

Ursula Uttinger

The EU’s general data protection regulation stipulates in article 39 a certification for data protection. It is interesting to compare what data protection certifications already exist in German speaking countries. The differences are large: Austria has nothing, in Germany Schleswig Holstein developed in 2000 the basis for a data protection certification. In Switzerland a private data protection seal has existed since 2002 and the Principality of Liechtenstein will soon have a regulation for data protection certification in place.

Die neue EU-Datenschutzverordnung wird kommen: Ein Kurzüberblick über markante Eckpunkte

Alex Schweizer

The proposed EU Data Protection Regulation will have a significant impact on businesses operating in Europe. And it will even affect Swiss and American firms and many other non-European companies that have EU customers. It sounds almost unbelievable, but all non-European companies, when offering goods and services to European consumers, will have to apply the EU Data Protection Regulation. This contribution provides an overview of some of the salient points of the future EU Data Protection Regulation.

Datenschutzrechtliche Implikationen von E-Disclosure im (Online-) Schiedsverfahren

Christian Tautschnig

The increasing digitisation of international commercial transaction is beginning to require dispute resolution mechanisms such as arbitration to be technologically «upgraded». In this context «E-Disclosure» stands for the integration of IT and the boundless possibilities of the internet in the conduct of arbitral evidentiary hearings. Due to the borderless nature of the internet in conjunction with the fact that documents produced or to be produced in the course of arbitral proceedings in most cases contain personal data, this development is to be considered in the light of data protection laws. This article will assess the impact of European Data Protection Law on the use of E-Disclosure in international arbitration.

Das Öffentlichkeitsgesetz (BGÖ) ist heute ein Werkzeug für investigative Journalisten

Peter Studer

Swiss Parliament approved a new Law on Access to Documents of the Federal Administration (Öffentlichkeitsgesetz) in 2004. The media was sceptical initially about the effectiveness of the law because there were too many exceptions and the access process was considered too long. The law set out to replace the principal of a reserved administration with only a few glimpses of openness by that of an open administration with only a few secrets. Today, it is recognised that this law, modelled after the sunshine laws in the US and in several western countries, has greatly helped Switzerland’s investigative journalism and NGO-activities. Under the law, Federal authorities are requested to grant access to written documents in their archives whenever possible even if this requires extensive research and certain costs. If the documents involve private interests, individuals or companies have to be informed by the approached authority. And if they resist public access, a lengthy procedure follows whereby journalists can appeal to the Delegate for Data Protection and Public Access (EDOEB -Eidgenössischer Datenschutz- und Öffentlichkeitsbeauftragter). The EDOEB then can either suport the negative answer or recommend granting access to the document. If access is still refused, journalists can appeal to the Federal Administrative Court, eventually even to the Swiss Supreme Court. A non-government organisation, supported by major publishing houses, helps access seekers find their way through the federal bureaucracy. In the last few years, most cantons have followed the federal example and imposed similar procedures on their own administrations.

COPYRIGHT

Scripted Reality – Alte Persönlichkeitsrechte gegen neue Fernsehformate

Clemens Thiele

Everything looks deceptively real – as if the camera would be right in the middle of real life. The so-called «scripted reality» enjoys not only on commercial TV increasing popularity. «Farmer Wants a Wife», «The school investigators» or similar reports provide mere pseudo-documentaries. Their dialogs are predetermined, spoken by real actors. The documentary style is merely simulated and explained by a short, very small written note at the beginning: «All persons involved are fictitious.» A spectator who switches on in between does not take any notice of the deception. This new television format poses next to the question whether this is simple viewer delution, also some copyright, media, unfair competition, and personal rights issues.

Zivilrechtliche Haftung von Filehostern bei Urheberrechtsverletzungen nach Schweizer Recht

Nicole Beranek Zanon

According to the decision of the German Supreme Court (BGH) dated August 15, 2013 – I ZR 80/12 file hosting services are generally allowed as long as they do not favor legal breaches. A legal breach is enabled when the download of data is linked to benefits, an anonymous service for free is offered and a service with higher download connectivity and storage capacities is offered. According to German law in this case only is the file hoster obliged to have controls of the link collections linked to third parties checked on a regular basis. The author assesses filehosting services according to Swiss law also under the premises of the latest decision of the Federal Supreme Court 5A-792/2011 dated January 14, 2013, (Tribune de Génève) and checks whether a civil liability may exist based on liability for created risk for filehosting services such as liability for interference in Germany.

E-COMMERCE

Bekannte Marke als zulässiges Keyword?

Verena Stolz

With reference to the case law of the ECJ the German BGH has ruled that the use of a well-known trademark as a keyword is not an unfair practice in itself. In case that an alternative product and/or service is recommended, this is to be seen as part of fair and healthy competition and is thus justified. Neither the ECJ nor the German BGH have however specified under which exact circumstances the use of a well-known trademark as a keyword is justified. This article thus examines this question against the backdrop of the case law of the ECJ and the German BGH in order to find out under which specific circumstances the use of a well-known trademark as a keyword is permissible.

Software-Agenten: juristische Praxis und rechtliche Einordnung

Elisabeth Hödl

In ubiquitous computing, software agents take over an increasing number of tasks. Software agents are referred to as computer programmes that are capable of appropriating a certain independent, or one could also say autonomous, “behaviour”. In doing so, the human user is represented by an agent who can take over the completion of a contract and a potential negotiation about legal user preferences. It is to consider what legal standards in the future may be of importance for software agents. What legal solutions are possible if they are to be representatives of the people?

INTERNET LAW

Delfi v. Estonia before the ECHR – editorial liability for Internet service providers?

Joanna Kulesza

The article discusses the significance of the recent ECHR decision in the case of Delfi v. Estonia, where the Court introduced editorial liability of an online service provider for content produced by its users. The case seems a pivotal point in the European perception of Internet service providers liability with respect of the notice-and-takedown procedures and mere conduit exceptions present in EU and national acts of law, freeing service providers from liability for content other than its own.

Voraussetzungen zulässiger schulischer Disziplinargewalt über Meinungsäusserungen von Schülern im Internet

Nuscha Wieczorek

The article examines whether schools can discipline students’ off-campus Internet speech (particularly in social networks) without violating the guarantee of free speech. For this purpose the article draws on U.S. case law dealing with the question in order to inform the Swiss legal debate. The article proposes that schools should be allowed to discipline students’ off-campus online speech on rare occasions and discusses the necessary conditions.

PUBLIC PROCUREMENT LAW

Die Bedeutung der AGB SIK bei Informatikbeschaffungen der öffentlichen Hand

Urs Egli

Michael Merz

When public authorities call for tenders they usually require tenders to be submitted on the basis of the standard terms and conditions of SIK (Schweizerische Informatikkonferenz). Suppliers should therefore be familiar with the provisions of the SIK T&Cs and either include the resulting effects into their commercial calculation or exclude or amend selected terms. The paper points out and explains the important clauses and provides drafting suggestions.

E-JUSTICE

E-Justice im Verhältnis zur richterlichen Unabhängigkeit

Christoph Spindler

In 2011 the Consultative Council of European Judges (CCJE) in its 14th Opinion to the Committee of Ministers focused on the relationship between justice and information technology. The CCJE discusses chances and risks occurring from the spread of information technology, and points out that IT can indeed strengthen judicial independence, however, should not be allowed to undermine it in any way. The present contribution addresses this topic from a Swiss perspective and relates it with debates about e-Government, IT strategy and powers of supervisory control, as they repeatedly emerged also in Switzerland in recent years.

LAW INFORMATICS

Von der Akte zur Information

Fritjof Haft

Judiciary and legal professions in Germany are currently busy with the detachment from paper to bits. However, the file had arisen in the early modern times and it is bound to the medium of paper since then. For the task of coping with complexity, this media is ill-suited. Taking this as the starting point of digitization in the right is like the effort to build locomotives that run on legs instead of driving on wheels. The author points out that the information – instead of the file – is the right approach for digitization in the right.

3D-Drucktechnologie

Andreas Glarner

Stefanie Debrunner

Since the beginning of the millennium the protection of intellectual property rights has been put under pressure by the digitalisation of information: photos, music, videos as well as texts became reproducible without restrictions, at almost no cost and may be spread worldwide through digital channels. 3-D print technology takes this idea one step further: by allowing the digitalisation and reproduction of physical objects, the technique connects the digital with the tangible world. Anyone shall be able to print its own designer furniture – or so at least the vision. What challenges does the new technology imply on intellectual property rights?

Extended Legal Thesaurus: Legal Terms as a Modally Indifferent Substrate

Vytautas Čyras

Friedrich Lachmayer

In this paper we hold that the two modes of obligation, in the same way as legal terms, constitute the subject matter of a legal thesaurus. Moreover, we propose to consider three more relations while developing a legal thesaurus and ontology. These are three types of weak relations: dialectical relations, context relations and metaphorical relations. They augment the five types of strong logical relations of synonymy, semi-synonymy, antonymy, hyperonymy/hyponymy and thematic relations. We begin with combinations of ought modes, which result in obligation, permission, liberty and vetum. Then we explore the types of norms by combining structural parts such as condition, ought, which includes subject, modus, action, and object, and also purpose (telos). Thus the types of norms To-Do and To-Be are distinguished.

EDITORIAL

Editorial

Franz Kummer

Erich Schweighofer