This time, the digital lawyer in the global knowledge and network society is the main theme of this editorial.
You may have already asked yourself what we want to achieve with Jusletter IT. A lot of IT, much law, many «side issues» of the knowledge society: But where is the «Red Thread»?
There are now five years of Jusletter IT, supplemented by the soon available archive of IRIS Proceedings, going back for another 10 years. This is already the most comprehensive corpus of knowledge on IT and Law, accessible by search engine and metadata worldwide anywhere at any time. Legal services are created with more and more technological support (up to the so-called «expert system») and are directed to a global market, with many regional submarkets. As a result, many new questions of law arise or are present in an altered context. Worldwide, IT is seen as the most relevant factor for cost savings and quality improvement in the law: Outsourcing is seen especially in German-speaking markets as a very limited option.
Our «Red Thread» is the lawyer in the global digital knowledge and network society. We have and will cover in the future the topics in an interdisciplinary and comprehensive way as best as possible.
2014 was a landmark for the main themes of these years. Legal services have to adapt to the digital society. Records are kept only electronically, documents are exchanged electronically and teleconferences are an option for less important negotiations. An essential skill of the lawyer must be to be a digital lawyer; to move in a proficient way and with ease in this digital world.
The Internet with its legal issues always presents new questions to lawyers; now the next wave is observed. The monitoring of the Internet was the focus of the issue in May 2014. Concerning the intended aim of the transfer of the stewardship function of the US-Government of the ICANN (Internet Corporation for Assigned Names and Numbers), the question arises whether the more difficult and imperfect multi-stakeholder process constitutes a viable alternative to the usual state-dominant International Organization. Human rights were and are comprehensively applicable to cyberspace; this is emphasized by the digital fundamental rights. Transparency, participation and accountability are the catchwords of this new development, which will not be limited to the Internet (such a solution suggests itself for sports). The growing penetration of life by the new technologies makes these questions a topic of mainstream lawyering – and there’s no end in sight. Undoubtedly, data protection is a key issue, but also in e-commerce, e-government and e-democracy, the legal framework is to be redesigned. Intellectual Property in the knowledge society is and remains a controversy, despite largely determinate legal solutions, but there is by far not a sufficient consensus. The ECJ judgments «Google Spain» and «Digital Rights Ireland / Seitlinger, Tschohl et al.» are milestones in a fundamental rights discussion, but not the end of this. «Google Spain» reflects the not yet optimal balance between privacy and other fundamental rights, such as freedom of expression. The «right to be forgotten» has already become a household dictum in public. By November 2014, Internet giant Google have already reached 170'000 cancellation requests by private users, but what about the right to freedom of expression on other people or the right to history?
Rolf H. Weber and Ulrike I. Heinrich critically consider the «Google Spain» decision of the ECJ and ask in particular with regard to the maintenance of a free uncensored Internet, the extent to which the newly created right to be forgotten violates the freedom of expression. Verena Stolz also takes this decision of the ECJ as an opportunity to comment on the possibility of deletion of personal data on the Internet. She compares the situation after the Austrian Data Protection Act and the still negotiated EU General Data Protection Regulation.
Can (household) devices be «intelligent»? What risks are due to the technical complexity of today’s devices? What information and personal data are collected and utilized through them? Which requirements should manufacturers meet such as in the form of «privacy settings», thereby protecting of the user can be ensured? Sandra Husi-Stämpfli illuminates the risks to the personal rights of users using various devices, and submits solutions taking into account the latest developments in the EU data protection revision.
Takashi Izumo deals with copyright in Japan. In Japan, the government leaves it at the moment to the authors to determine whether violations of their rights will be prosecuted or not. He discusses the option whether this possibility should be available to third parties in the future. Who should be the guardian of copyright – the author or the state? Thus opens a door by the state of legal supervision?
Also in Switzerland, a 14-day right of withdrawal in the phone and distance selling trade should be introduced. Political discussions are still ongoing. Flavio Delli Colli and Leo Rusterholz compare the current legal situation with the planned revision and come to the conclusion that because of the diversity of telephone and distance selling business, an adjustment should only be done on the phone trade.
Rehana Harasgama summarizes legal challenges caused by web and mobile payment systems, reporting of a conference with the same name that took place on 29 October 2014 in Zurich.
Armin Horn reviews the 4th edition of the juris PraxisKommentar Internetrecht – Telemediengesetz, ECommerce, E-Government (juris Practice Commentary Internet Law – Telemedia Act, E-Commerce, E-Government) of Prof. Dr. Dirk Heckmann, while Joanna Kulesza in a very compact form discusses the current problems of Internet governance in international law on the example of the authorisation of new gTLDs («generic Top Level domain Names»).
Fritjof Haft takes a look on the legal informatics training in law schools, noting that even today many law students lack a proper understanding. He proposes to use the available technical resources to make the law training more relevant to practice. Haft’s picture is partially exaggerated – the situation in Austria is not so great and in Germany not so bad; little-known but important AI & law research was insufficiently considered. However, it is a good start for a discussion about IT as a core competence of the digital lawyers, that, of course, is to be trained by the law schools. We hope to be able to push this discussion further.
Martin Stabauer and Johann Höller present an approach for an integration of semantic models and traditional software engineering for modelling of legal texts. This makes it possible to close the gap between highly abstract and generic representations for very specific implementations and with relatively little opportunity for reuse on the other.
Norbert Brunner and Christoph Tschohl finally present quite theoretical considerations on the situation of human rights of sex workers in Europe. Their conclusions are based on extensive data analysis using indicators.
As usual, you can also find in this issue the TechLawNews of Daniel Ronzani and Simon Schlauri and other interesting news about IT and law.
At this point we want to say farewell to a great man – Lothar Philipps, jurist, mathematician and legal logician – and thank him for a valuable time together. A scholar’s life has come to an end; in his extensive works, he will be our continued presence.
We wish you a good year-end rally, a great start to the new year and of course a fascinating reading.