24 September 2015

Dear Readers,

Jusletter IT exists for more than 5 years now, in front of you is the 19th issue. Podcasts are integrated in Jusletter IT since May 2015, an extensive archive for the IRIS proceedings, jubilee publications have been issued... This is, at this stage, the most comprehensive corpus of knowledge regarding IT and law that is available via search engines and meta data throughout the world and time. Legal services are being developed with increasing technological support (up to the so-called «expert system») and are aiming at a global market; with plenty of regional submarkets. Various legal questions are arising new or in modified context. The IT is seen as the factor for cost saving and quality improvement worldwide; outsourcing is to be seen as a very limited option, especially in German-speaking markets.

In this connection, Jusletter IT dedicated itself to interdisciplinarity and comprehensive coverage of all topics around IT and law that are important for the digital lawyer.

In the last special issue of Jusletter IT on 21 May 2015 we took different approaches to the topic Big Data. The main point is – as in many other sectors – data protection. This, besides the various topics around IT and law – E-Commerce, anti-terror-laws, E-Justice et cetera –, won’t let us go in this issue too.

As an introduction, Rolf H. Weber summarizes the main elements of the European General Data Protection Regulation published in June 2015 by the European Commission. As essential innovations, the strengthening of the digital single market by a harmonised level of data protection is paramount, alongside the information rights, the right «to be forgotten» and the right to data portability, new regulations regarding the preventive data protection and the transnational data transmission. He draws conclusions in view of the ongoing revision of the data protection law in Switzerland.

Carlo Piltz turns his gaze to Germany and to the decision of the Privacy Commissioner of Hamburg, who has issued an administrative order concerning Facebook Ireland Ltd., in which he, inter alia, obligates the corporation to permit the pseudonymous use of its service. The necessity of a clear name in social networks violates the German data protection legislation.

What happens with my Facebook account or my data in the Cloud after my death? How is my «digital inheritance» handled? Rolf H. Weber and Lennart Chrobak are discussing questions regarding the legal assignment of data in lifetime and after death. Taking into account the legal frameworks of property, inheritance and obligation law, the question of how far the Swiss law is able to do justice to the phenomena of digital dying and inheriting and which adaption possibilities are to be considered for the future is discussed.

Paweł Szulewski also considers the transferability of digital assets in the case of death. Based on examples of Facebook, Google and Yahoo!, he refers to the relevant legislation gap in the European Union, at the same time presents non-legal solutions and gives an overview to the US approach to solving the problem.

Sandra Husi-Stämpfli asks «Technology is galloping forward – where is the law?». She examines the technical devices moving into the administrative life and how they should be dealed with. In doing so, she urges, that a rethinking regarding assuming responsibility within the administration must happen as well as a serious conception and realisation of a cantonal IT-Governance.

Peter Parycek, Johann Höchtl and Bettina Rinnerbauer are addressing Big Data analyses in administration and their being in line with the data protection law. Adducting the «Use Case» of the register-based census in Austria, they draft a first proposal for the evaluation of administrative data through a new process in conformity with the law.

Subsequently to his article of May 2014 (Der Einsatz von GovWare in der Schweiz, in: Jusletter IT 15 May 2014), Thomas Hansjakob highlights the current developments of the revision of Art. 269^ter Criminal Procedure Code within the frame of the ongoing revision of the Federal Mail and Telecommunications Monitoring Act. Following the Council of States, the National Council also wants to permit the use of GovWare («Staatstrojaner») in future.

In Austria, the topic of surveillance for combating criminality is also being hotly debated. Rolf-Dieter Kargl scrutinizes the neuralgic points in the legal system and presents the connection between private companies’ obligations to cooperate, e.g. based on the E-Commerce-Law and the Telecommunications Law, and powers of authorities according to the Code of Criminal Procedure. In addition, he provides an outlook towards future steps to the formation of a «catalogue of measures for the evaluation of anti-terror-laws».

In his judgement review, Paul Bernal focuses on the (ir-)reconcilability of liberty rights and surveillance. He comments on the judgement of February 2015 by the UK Investigatory Powers Tribunal, which ruled that the data sharing between the US and UK had been unlawful.

Daniela Nüesch summarizes the eighth Swiss conference regarding data protection, which took place on 28/29 May 2015 in Freiburg i.Üe. (Switzerland) and focused on «Big Data and Data Protection».

Virtual currencies have been a subject discussed at length (also see Helgo Eberwein / Árpád Geréd, Bits & Coins, in: Jusletter IT 26 February 2015, Helgo Eberwein / Arthur Stadler / Anna-Zoe Steiner, Bitcoins – Rechtliche Aspekte einer virtuellen Währung, in: Jusletter IT 20 February 2014). In this context, Vlad Dan Roman asks, if the regulation can keep up with the rapid distribution and the frequently appearing new providers.

Susanne Forizs and Tamás Forizs concentrate themselves on the suggestion for a Regulation of the European Parliament and Council for measures for open Internet and amending the Regulation on roaming on public mobile communication networks within the Union. The effects on the customer contract in terms of special agreements, binding new minimum contents for contracts or guarantee are paramount in this analysis.

With the strategic initiative «Justiz 3.0», the completely digital file management will be realised until 2020, to be able to meet the requirements regarding a service oriented justice, both for the public and the staff. Martin Schneider and Thomas Gottwald present the individual points.

In the end, Federico Costantini theoretically deals with the topic «search for meaning» and legal ontologies – accompanied by individual practice examples.

According to Pierre Brun’s recension, the «Leitfaden Information Governance» (guide to information governance) in its new edition is a welcome and comprehensive tool for practitioners. It shows tangible solutions for ensuring the correct and regular handling of business information resources.

As usual, you can also find the TechLawNews of Daniel Ronzani and Simon Schlauri and other interesting news about IT and law in this issue.

Additionally, this issue contains podcasts, recorded in line with the IRIS 2015 on the topic Co-operation. These perfectly complement single articles of the Jusletter IT issue of 26 February 2015.

Erich Schweighofer, Rechtsdatalystik – Versuch einer Teiltheorie der Rechtsinformatik (Podcast)
Christine Kirchberger, Kooperation von Rechtsinformation und AnwenderInnen (Podcast)
Iris Kraßnitzer, Medienneutrale Datenaufbereitung und kooperative Mehrfachnutzung von Kollektivverträgen (Podcast)
Margit Vetter, «Google Like» Search in juristischen Datenbanken. Umsetzung bei Verlag Österreich (Podcast)
Jörg Reichert, Recherchefunktionen und Anwenderverhalten in juris.de (Podcast)
Pascale Berteloot, Anmerkungen zur neuen EUR-Lex (Podcast)
Angela Stöger-Frank, Der Richter wird zum Autor. Titel, Abstract, korrekte Zitate: Ein Gegengeschäft oder Aufwand? (Podcast)
Hanna Maria Kreuzbauer, Kooperation (Podcast)

We wish you a fascinating reading and are looking forward to greet you again on 10 November 2015 for the next issue of Jusletter IT on the topic of E-Justice.

Vienna / Bern, September 2015

Erich Schweighofer and Franz Kummer

Data Protection

EU-Datenschutz-Grundverordnung: Kernelemente und Ausstrahlungswirkung auf die Schweiz

Rolf H. Weber

In June 2015, the EU commission published a trialogue version of the General Data Protection Regulation. As an essential innovation, the stabilisation of the digital single market by a harmonised level of data protection is paramount, alongside the information rights, the right «to be forgotten» and the right to data portability, new regulations regarding the preventive data protection and the transnational data transmission as well as the strengthened provisions regarding surveillance. For the introduced revision of the data protection law in Switzerland, it seems reasonable to learn from the EU data protection legislation. (ah)

Hamburger Datenschutzbeauftragter: Facebook verstößt gegen deutsches Datenschutzrecht

Carlo Piltz

The data protection commissioner of Hamburg, Prof. Dr. Caspar, has issued an administrative order concerning Facebook Ireland Ltd., in which he, inter alia, obligates the corporation to permit the pseudonymous use of its service. According to the data privacy specialist, the necessity of a clear name in the social network violates the German data protection legislation. The process raises several interesting questions regarding the European data protection legislation that shall be treated subsequently at a glance. (ah)

Der digitale Nachlass

Rolf H. Weber

Lennart Chrobak

Within the last months, the «digital death», or the digital inheritance is getting the attention of a broader audience and also gained importance from a legal perspective. The article takes these developments as a reason to analyse the legal assignment regarding the digital assets of a person stored on physical terminals and the cloud, in the lifetime and after death. Taking into account the legal frameworks of property, inheritance and obligation law, the question is discussed to what extent the Swiss law is able to do justice to the phenomena of digital dying and inheriting and which adaption options are to be considered for the future. (ah)

A Contractual Perspective on Succession of Digital Assets

Paweł Szulewski

This paper is an attempt to describe the transferability of digital assets in case of death from the contractual perspective. It presents the service providers’ approach to succession of digital assets based on examples of Facebook, Google and Yahoo!. It points out the relevant legislation gap in the European Union, presents some of non-legal solutions available in the Internet, and finally, it gives the reader a brief overview on the first legal act regulating succession of digital assets – U.S.’s Uniform Fiduciary Access to Digital Assets Act.

Die Technik galoppiert voran – wo bleibt das Recht?

Sandra Husi-Stämpfli

Technology increasingly takes over control of the administrative life. What challenges need to be faced from a legal point of view, especially considering data protection and information security? Can everything remain as it is? Are there required amendments in legal bases respectively in organisational structures? The author focuses on these questions and shows that solution approaches must not only be of legal nature: A rethinking regarding assuming responsibility within the administration must happen as well as a serious conception and realisation of a cantonal IT-Governance. (ah)

Zur Datenschutzrechtskonformität von Big Data Analysen der Verwaltung

Peter Parycek

Johann Höchtl

Bettina Rinnerbauer

Government data is a valuable resource for analytic systems. The advent of big data enables new methodologies, processes and techniques to further improve predictive results towards evidence-based policy making for the benefit of the society at large. The legal framework on the one hand is an enabler for data analytics and on the other hand restricts potential use-cases. This article presents the principles of Big Data, discusses administrative registers in respect to Big Data, gives a succinct overview on the personal data protection act in Austria, analyses the methodology of the register-based census as a blueprint for Big Data analytics and concludes with a novel approach towards Big Data analytics using encrypted data on a peer-to-peer network in line with the current personal data protection act.

Einführung von GovWare weiterhin auf Kurs

Thomas Hansjakob

The National Council is the second of the two parliament chambers to deliberate upon the revision of the Federal Mail and Telecommunications Monitoring Act and agrees with the Council of States about permitting the use of GovWare («Staatstrojaner»). The author presents the specifications by the National Council and their practical impacts. (ah)

Handlungskatalog für die Evaluierung der Anti-Terror-Gesetze in Österreich (HEAT) – ein erster Überblick

Rolf-Dieter Kargl

The dimension of government interferences in our private lives and informational self-determination can only be captured correctly when considering the total of all interventions. The paper is meant to give a first overview of the norms that must be evaluated based on the first work package of the project HEAT. In doing so, the neuralgic points in the legal system are scrutinized and the connection between private companies’ obligations to cooperate, e.g. based on the E-Commerce law and the Telecommunications law, and powers of authorities according to the Code of Criminal Procedure and the Federal Security Police Act is presented as well as the meshing of authorities within the individual steps of investigative work. Finally, the article provides an outlook towards future steps to the formation of a «catalogue of measures for the evaluation of anti-terror-laws». (ah)

Liberty and others vs. GCHQ and others

Paul Bernal

In February 2015, the UK’s Investigatory Powers Tribunal ruled that data sharing systems between the US and UK intelligence services had been unlawful from their inception until December 2014, when key disclosures about them were made. The deceptively simple ruling revealed a great deal about the processes and systems that govern surveillance in the UK, about the strength of the oversight systems, and about the need for reform of both the law and the enforcement of that law. This piece analyses the case in the context of a new atmosphere and environment surrounding surveillance law in the UK: fitting it within a bigger pattern where more transparency is being demanded and more accountability is required.

Tagungsbericht zur achten schweizerischen Datenschutzrechtstagung zum Thema Big Data und Datenschutzrecht

Daniela Nüesch

The eighth Swiss conference regarding data protection of 28-29 May 2015 focused on «Big Data and Data Protection». In particular, numerous questions in this context were examined from interdisciplinary points of view and multiple perspectives. To reflect the current state of research in its main features and to roughly indicate the dealing with the problem in the legal praxis, the author summarises the particular presentations and ateliers and makes a note of the consequent possible actions. (ah)

E-Commerce

Virtual Currencies: Can Regulators Keep Pace?

Vlad Dan Roman

Innovation represents the dominant tendency when it comes to solving modern needs; to this extent things have evolved at an outstanding pace and are yet to be settled. The new paradigm is also applying to the payment behavior where the old barter exchanges are nowadays replaced by transactions with digital-conventional sources of value named virtual currencies. Even though progress represents the desiderate for wealth, the process per se creates vulnerabilities due to its dynamics. Along with innovation, social elements such as criminality or economic realities like enhanced competition are in the loop for a coherent regulatory answer.

Telecommunications Law

Maßnahmen zum offenen Internet und Änderung der Verordnung über das Roaming in öffentlichen Mobilfunknetzen

Susanne Forizs

Tamás Forizs

The article deals with the proposal for a Regulation of the European Parliament and of the Council laying down measures concerning open internet and amending Regulation on roaming on public mobile communications networks within the Union. The article examines the provisions of the proposal potentially relevant for end-user contracts, e.g. specialised services, obligatory new minimum content of contracts and warranty, but refrains from touching on issues, which might result from the proposal, related to the quality of net neutrality.

E-Justice

Strategische Initiative Justiz 3.0

Martin Schneider

Thomas Gottwald

With the strategic initiative «Justiz 3.0», the completely digital file management will be realised until 2020, to be able to meet the requirements regarding a service oriented justice, both for the public and the staff. (ah)

Legal Information & Legal Search Technologies

#Folksonomies and #Law

Federico Costantini

This paper explores some foundational issues on the deployment of folksonomies in legal information management. It is analysed whether and how these information technologies could be suitable to represent the connection among the «Cur jus?» (the meaning of law for the individual), the «Quid jus?» (the concept of law considered as the structure of social ties), and the «Quid juris?» (the purpose of the law, namely to solve disputes among people) within a legal ontology under-pinned on a theoretical perspective which claims to be realistical, and that, for this reason, it is somewhat unusual in Legal Informatics.

Rechtsdatalystik – Versuch einer Teiltheorie der Rechtsinformatik (Podcast)

Erich Schweighofer

The individual methods for analysing legal text corpora should be embedded within a theoretical modell of legal data science. The term «Legal Datalystic» is proposed for its designation. (ah)

Kooperation von Rechtsinformation und AnwenderInnen (Podcast)

Christine Kirchberger

Legal information retrieval – viewed as a scale – has an unbalanced focus on legal sources at the moment. Instead of focusing on the way users think, technology utilises the characteristics of legal information and provides the user with the best documents based on word counts, probability and statistics. In the presentation the speaker provides an alternative way for technology to present retrieved information that meets the way users think and work with legal sources better.

Medienneutrale Datenaufbereitung und kooperative Mehrfachnutzung von Kollektivverträgen (Podcast)

Iris Kraßnitzer

Collective agreements are an important public (legal) asset which should be widely accessible and free of charge. The ÖGB publishing house (ÖGB-Verlag) uses besides an information system concerning collective agreements diverse publication channels for which the processed data is reused adapted to the respective context. The multiple use focuses in particular on media neutral content which can be adapted for various publication applications. Additional sources of revenue can be generated by the multiple use of the data which has been processed labour-intensive and the information offerings can be considerably revalued with minimal effort.

«google-like» Search in juristischen Datenbanken. Umsetzung bei Verlag Österreich (Podcast)

Margit Vetter

«google-like» search in legal databases is transposed in different ways. Common denominator is often only the fact that those databases work with a single search field. The lecture deals with Verlag Österreich’s solution of «google-like» search, which they transposed in their research products. What are «google-like» searches able to provide and where are their limits? (ah)

Recherchefunktionen und Anwenderverhalten in juris.de (Podcast)

Jörg Reichert

Legislative databases must fulfill the expectations of a heterogeneous user group with different research approaches. Hereby they are increasingly compared with Google, which – despite not being tailored to legal content – solely on the base of its wealth of indexed content is rarely short of an answer. The users‘ movement within the legislative database (searching vs. browsing) and the offer as well as usage of special features (search suggestios, passive citation...) is described with the example of juris.de. (ah)

Anmerkungen zur neuen EUR-Lex (Podcast)

Pascale Berteloot

In March 2014, the Publications Office of the EU released a totally new version of EUR-Lex. The reception was not quite enthusiastic and the aim of the presentation is to comment on the background of the developments which partly explain shortcomings everyone in the user community could verify. The presentation also insists on the particular dynamic which arose from collaboration with Member States and EU institutions institutions. It finally focuses on elements which are expected from a new system and makes some proposals for further developments. Users should be aware that they can highly contribute to improvements and further evolution.

Der Richter wird zum Autor. Titel, Abstract, korrekte Zitate: Ein Gegengeschäft oder Aufwand? (Podcast)

Angela Stöger-Frank

A well structured text and significant metadata are required to ensure an efficient and purposeful judicature documentation. At the Federal Finance Court judges are included in the process of documentation and co-operate with the registry office, which publishes the findings in the financial documentation (Findok). The newly introduced electronic appeal proceedings support the creation of decisions with text modules and forms, and hyperlinks help to fill in the metadata. Title, abstract and correct citing provide a good base for efficient research and presentation in a judicature database. Including judges in this process can be both, reciprocity and effort . Boundaries are flowing and the way from service to chore a balancing act. (ah)

Notes on the General Topic IRIS 2015: Co-operation

Kooperation (Podcast)

Hanna Maria Kreuzbauer

Co-operation is still a popular subject, researched on an abstract level in the fields of system, game and evolutionary theory. Based on an overview of the history of co-operative research and the definition of «co-operation», the question of whether co-operation exists in the internet or not is discussed. The author notes that co-operation in the Internet cannot be ensured anymore. (ah)

IT-Governance

Buchbesprechung: «Leitfaden Information Governance»

Pierre Brun

Increasing legal and regulatory requirements and a dramatic growth in the amount of data present a major challenge to business information managers. To understand the legal basis, to assess the risks und implement effective measures with limited resources are no easy task. The «Leitfaden Information Governance» (guide to information governance) in its new edition is thus a welcome and comprehensive tool for practitioners. It shows tangible solutions for ensuring the correct and regular handling of business information resources.

TechLawNews by Ronzani Schlauri Attorneys

SaaS under GPLv3

Daniel Ronzani

WEKO genehmigt Übernahme von ricardo.ch durch Tamedia

Simon Schlauri

New Swissness Legislation

Daniel Ronzani

«Button-Regel» für Websites jetzt auch in der Schweiz

Simon Schlauri

News

Hintergrundmusik in Zahnarztpraxen

Jurius

BGH – The First Civil Chamber, which is responsible for copyright amongst other things, decided on 18 June 2015, that the replay of background music in dental surgeries is not generally a public reproduction – liable for payment – within the meaning of copyright law. (Judgement I ZR 14/14) (ah)

Bundesgerichtshof zur urheberrechtlichen Zulässigkeit des «Framing»

Jurius

BGH – The First Civil Chamber, which is responsible for copyright amongst other things, decided on 9 July 2015, that the operator of a web page does not violate copyright law, when he embeds copyrighted contents through «Framing» on his own web page, that are available for all Internet users on another web page with the consent of the right holder. (Judgement I ZR 46/12) (ah)

Berufungsurteile in Urheberrechtsverfahren gegen YouTube und Google

Jurius

OLG Hamburg – The 5th civil court of appeal of the Hanseatic Higher Regional Court has made two decisions on 1st July 2015 in procedures regarding copyright law, in which the operator of the video portal «YouTube» and – in one of the decisions – also its parent company, Google Inc., were made liable for the accusation of copyright violation. Various music tracks, uploaded by YouTube users in line with video clips and therefor made publicly available, though the users did not hold the rights to the tracks, are the subject of the procedures. (Judgements 5 U 87/12 and 5 U 175/10) (ah)

Überprüfung von Eintrag in Hooligan-Datenbank

Jurius

BVGer – The Federal Office of Police (Fedpol) has to review, if an entry about a FC Basel supporter in the Swiss hooligan data base Hoogan has to be deleted. This is a decision of the Federal Administrative Court. The supporter has cut out a piece of the soccer pitch and took it home as a souvenir. (Judgement A-2024/2015) (ah)

Einigung über die Datenschutz-Grundverordnung im Rat der Justiz- und Innenminister

Jurius

On 15 June 2015 the EU Council of Ministers of Justice and Home Affairs have agreed on their position regarding the planned EU-Data Protection Basic Regulation after debating for more than three years. (ah)

Internet- und Mobilfunküberwachung

Jurius

On 13 May 2015, the Federal Assembly has resolved upon an additional criteria for the evaluation of the export and brokering of items regarding the surveillance of internet and mobile communications from Switzerland. (ah)

Rechtswidrige Beschränkungen des Online-Vertriebs bei Laufschuhen von ASICS

Jurius

The Bundeskartellamt has concluded its proceeding on anti-competitive clauses in the distribution system of ASICS Deutschland. The authority accuses ASICS of having restricted the online sales activities of small and medium-sized authorised dealers in particular.

Auftragsdatenverarbeitung ohne richtigen Vertrag kann teuer werden

Jurius

Those who have others work for them with personal data, have to conclude a rather detailed contract by operation of law. If such a contract is not or insufficiently concluded, a fine can be imposed. The Bavarian Data Protection Authority (BayLDA) has recently imposed a fine running into tens of thousands in the event of inadequate award of contract. (ah)

Kundendaten beim Unternehmensverkauf – ein Datenschutzproblem

Jurius

The Bavarian Data Protection Authority (BayLDA) has imposed a serious – in time incontrovertible – fine on a company’s vendors and sellers due to a violation of the data protection regulation when handling customer data. (ah)