18 May 2017

E-Justice and Technological Advances.

Dear readers,

Two topics are addressed in this current issue of Jusletter IT, both of them having a disruptive character: the digitalization of the judicial system and the consequences of technological advances.

Even though the process of the judicial system’s digitalization has started long ago, it is now known that the future will bring fundamental changes. The gap between a fully digitalized and today’s judiciary will be larger than the one between Switzerland’s judiciary today and the judicial system in countries where the separation of powers is just façade. It remains largely unclear where this will lead. Conceivable is, however, that professional competence in digital transformation being widely spread within the judiciary will determine the quality of the transition’s outcome. Temporizing would be a good option in theory, but only if connected with intensive observation analysis and reflection of the shifting abroad and supplemented by further education in digital transformation for everybody in the judicial system. Anyway, experience has taught us that temporizing inhibits those valuable practices, as their purpose won’t be understood as long as the challenges of digital transformation haven’t been experienced in one’s own daily life. In other words: without the need to acquire knowledge, there are neither will nor ability to do so. Furthermore, a judiciary system not moving with the times will not only be confronted with problems regarding the operational area, but will naturally begin to fulfil its core duties as judicial system worse than before. The institutional quality of the judiciary, same as in executive and legislative, depends on the knowledge of digitalization, since digitalization will change all areas of life and particularly the operational resources of a trial’s participants.

The development of the judicial system’s digitalization in Switzerland, Austria and Germany is compared by Miriam Garbauer. She focuses on the possible reasons for slowing down the digitalization in the Swiss judiciary.

Martin Dumermuth and Sandra Eberle deal with the requisite and preferable legal circumstances for a digitalization of the judiciary and with its political and temporal feasibility.

A short overview on the Austrian strategical initiative «Justiz 3.0» is given by Martin Schneider and Thomas Gottwald.

The emphasis on e-justice is supplemented by speeches recorded in November 2016 at the «Tagung für Informatik und Recht» addressing the topic «Eine Vision für eJustice in der Schweiz»:

Peter Münch / Miriam Garbauer, eJustice in der Schweiz – Stand und kritische Erfolgsfaktoren (Podcast)
Daniel Gruber, Eine Vision für eJustice in der Schweiz (Podcast)
Holger Radke, Wie mir die eAkte meinen Arbeitsalltag als Richter erleichtert (Podcast)
Marc Oser, Arbeiten mit der eAkte im Gerichtsalltag (Podcast)
Jens Piesbergen, Fortschritte bei der Digitalisierung in der Schweiz – Aktivitäten und Ausblicke (Podcast)

The article by Bettina Mielke and Christian Wolff is situated in the overlapping range of both topics. The authors deal with potential and effect of legal technologies.

The second topic dealt with is the legally relevant effects of technological advances. On one hand, new regulation requirements occur with new technologies, especially if they have disruptive impact on economy, society or state. On the other hand, technologies are being developed enabling jurists to refine their discipline functionally, which, in turn, can raise regulation issues as well. Therefore, a constant confrontation with disruptive technologies is imperative. At the same time, the demand for analysis, reflection and discussion is particularly urgent in the area of Blockchain technology.

Ralf Huber addresses the current potential of technologies for the reduction of compliance expenses in the financial industry. He asks what the advantages of using such technologies are and under which circumstances they can be applied successfully.

The regulation challenges arising with Blockchain technology and its future usage are treated by Rolf H. Weber. In this context, we refer to the article recently published in Jusletter (Barbara Graham-Siegenthaler / Andreas Furrer, The Position of Blockchain Technology and Bitcoin in Swiss Law, in: Jusletter 8 May2017).

Lee Bacon and George Bazinas discuss the legal aspects of a special design within the Blockchain technology, namely smart contracts. Additionally, they consider the extent to which smart contracts can replace traditional legal contracts.

The legal consequences resulting from the new technological possibility of voice cloning are examined by Małgorzata Kiełtyka, Jakub Gładkowski, Anna Bednarska, Mariusz Bujacz and Kamil Trzaskoś, focusing in particular on Polish Law.

The article written by Gertraud Redl and Philipp Klausberger neither focuses neither on e-justice nor on technological advances. The authors are dealing with an e-government topic, namely the electronic incoming in the Austrian Financial Markets Authority.

I wish you a fascinating reading.

Berne, in May 2017

Prof. Dr. Reinhard Riedl
Bern University of Applied Sciences

On our own behalf: Don't miss the upcoming Jusletter IT Flash focusing on «Digitalization of the Legal Market». The issue will be published on 13 June 2017.

Dealing with the same subject, the Weblaw Forum LegalTech will take place on 29 June 2017 – participation is feasable locally or via live stream.

E-Justice

E-Justice – Vision einer modernen Justiz

Miriam Garbauer

The author summarizes the situation of the judicial digitalization in Switzerland, compares it with the neighbouring countries Austria and Germany and provides indications to possible reasons for the varying stages of development in these countries. A main focus is set on the problem areas and braking factors in the digitalization of the judicial system in Switzerland. (ah)

E-Justice-Gesetz – Durchbruch für den elektronischen Rechtsverkehr?

Martin Dumermuth

Sandra Eberle

An active usage of electronic legal transactions with the courts of all federal levels is still missing. It is for this reason, that in autumn 2016, an alliance consisting of the Federal Supreme Court, numerous cantonal courts, the Swiss judiciary, cantonal general prosecutions as well as the Swiss bar association addressed themselves to the Conference of Directors of Cantonal Departments of Justice and Police (CCDJP). Authorities and professional legal representatives shall be obliged to use electronic legal transactions (e-justice) by means of a legislative adjustment. The authors present a new legislative project. (ah)

Strategische Initiative Justiz 3.0

Martin Schneider

Thomas Gottwald

In terms of a holistic approach of the judicial system, the optimal IT support for all individual user groups up to fully electronic process handling in the light of current technical trends and possibilities is aimed to be found with the Austrian strategical initiative «Justiz 3.0». (ah)

eJustice in der Schweiz – Stand und kritische Erfolgsfaktoren (Podcast)

Peter Münch

Miriam Garbauer

During their master program at ZHAW School of Management and Law, Miriam Garbauer and Joel Sigrist – under the supervision of Prof. Peter Münch – have executed the research project «eJustice in der Schweiz». The speech presents a brief report of the results. The judicial system’s digitalization is still in its infancy in Switzerland; foreign countries are, to some extent, advanced. Based on Tilman Slembeck’s Policy-Making-Model and John Kotter’s Change-Management-Model, the speech shows crucial obstacles and requirements to conquer them. (ah)

Eine Vision für eJustice in der Schweiz (Podcast)

Daniel Gruber

In November 2016, the association eJustice.CH drafted «a vision for e-justice in Switzerland» which has been presented at the event «Tagung für Informatik und Recht». With this initiative, the association tried to create a shared understanding of the desired target and to phrase guidelines for the parties’ cooperation. Thus, the transformation process of the judicial system’s digitalization shall be supported to result in optimal benefits for all participants and for the community. (ah)

Wie mir die eAkte meinen Arbeitsalltag als Richter erleichtert (Podcast)

Holger Radke

Since 1st June 2016, four civil chambers of the Mannheim regional court are conducting new incoming civil procedures of first instance in electronic form exclusively. This pilot project aims to deliver insights on the technical frameworks and the organizational presages required to establish an extensive electronic file management in the justice of Baden-Württemberg until 2020. The speech depicts experiences of the first 5 months of live operation and centres the advantages of the electronic file for the judge’s workplace. (ah)

Arbeiten mit der eAkte im Gerichtsalltag (Podcast)

Marc Oser

10 years ago, the Canton of Basel-Stadt started to standardize the court’s individual solutions for case management. At the courts, the electronic file has been introduced by now. A digital process has been implemented, with which everything ought to be processed without paper: from incoming mail at the court registry to the instruction by presidium and law clerks and back to the registry. Numerous obstacles had to and still have to be overcome, meaning not only technical but also human barriers. (ah)

Fortschritte bei der Digitalisierung in der Schweiz – Aktivitäten und Ausblicke (Podcast)

Jens Piesbergen

The talk examines different aspects of the optimization of business processes supported by ICT means and shows up their limits; in doing so, both obstacles and approaches to their elimination are being analysed. The national HIS program aims to cause improvements of the multidirectional, automatized data exchange, especially in the range of an optimized cooperation between all actors in the judicial system. By collaborating with the courts, an implementation of a complete electronic file and records management for all federal authorities is expected to be achieved. Furthermore, the speech enlarges upon running projects. Digitalization does not mean transferring paper based processes point by point only. Therefore, some innovative and disruptive conceptual approaches are under consideration, too. (ah)

E-Justice, Justiz 3.0 und Legal Tech – eine Analyse

Bettina Mielke

Christian Wolff

The article introduces and correlates current developments in the context of e-justice and legal tech. The authors clarify different priorities and technical development perspectives: while e-justice primarily focuses on electronic legal communications, legal tech represents all forms of computer- and software-based support of lawyers and legal departments, including economic analysis functions. In the article, the authors analyse the different manifestations of such systems using the current literature on this topic and provide a systematic overview. (ah)

Technological Advances

«Smart Contracts»: The Next Big Battleground?

Lee Bacon

George Bazinas

With the advent of blockchain as a decentralised database, with the ability to store a public registry of assets and transactions across a shared, trusted, peer-to-peer network, and the sophistication of software code as a form of communicating information and automating complex instructions, blockchain has the capacity to significantly disrupt and transform the legal and business landscape. In this article we consider the extent to which «smart contracts», agreements reduced or replicated in software code whose execution is both automatable and enforceable, can replace traditional legal contracts.

Voice Cloning as a Global New Technology and its Challenges for EU and Polish Law

Małgorzata Kiełtyka

Jakub Gładkowski

Anna Bednarska

Mariusz Bujacz

Kamil Trzaskoś

New technologies, such as Siri, Cortana or Google, process our personal data for various reasons. The paper focuses on voice, its protection and possible issues arising around voice cloning technologies. The authors present the voice as a personal right, the issue of personal data processing, the consequences related to penal liability in case of violations related to voice cloning, examples of voice cloning software and, voice biometrics.

Blockchain als rechtliche Herausforderung

Rolf H. Weber

Even though it’s not entirely clear how severely the law will be affected by it medium-term, Blockchain technology is a topical issue of lively debate. In the financial market, the thin end of the wedge is virtual currencies. But further areas should follow soon: if the law, for example, permits the establishment of trading platforms or registries on the Blockchain, new technology might offer a cost-efficient alternative, provided that data is saved and transmitted securely and genuinely. For the future, the requirement for legal actions emerges; the governor would therefore be well advised to meet the challenges in due time. (ah)

Kann RegTech die Finanzindustrie aus der regulatorischen Krise befreien?

Ralf Huber

High legal and compliance costs in the financial industry lead to various articles about the usage of technology and so-called RegTech companies. What are the advantages of such solutions and under which circumstances can they be applied successfully? (ah)

E-Government

Die Verordnung der Finanzmarktaufsichtsbehörde über die Incoming-Plattform

Gertraud Redl

Philipp Klausberger

The Austrian legislature, with regard to a series of transmissions, authorized the Financial Markets Authority (FMA) to issue provisions regarding the electronic incoming by means of a regulation. Due to this authorization, the FMA adopted the Regulation Concerning the Electronic Incoming (FMA-Incoming-Platform Regulation [FMA-IPV]) and set up an appropriate platform. The article deals with the delegated legislation, with the regulation adopted on its basis and with some particularities of the administrative procedural law in connection with the electronic incoming. (ah)

TechLawNews by Ronzani Schlauri Attorneys

Urheberrechtsverletzung durch Verkauf eines multimedialen Medienabspielers

Jurius

ECJ – The sale of a multimedia player which enables films that are available illegally on the internet to be viewed easily and for free on a television screen could constitute an infringement of copyright. The temporary reproduction on a multimedia player of a copyright-protected work obtained by streaming is not exempt from the right of reproduction. (Judgement C-527/15)

Nutzung von Daten eines Fernsprechteilnehmers im anderen Staat zulässig

Jurius

ECJ – A telephone subscriber’s consent to the publication of his data also covers its use in another Member State. The highly harmonised regulatory framework makes it possible to ensure throughout the EU the same respect for requirements relating to the protection of subscribers’ personal data. (Judgement C-536/15)

Kein Recht auf Vergessenwerden

Jurius

ECJ – The Court considers that there is no right to be forgotten in respect of personal data in the companies register. However, upon expiry of a sufficiently long period after dissolution of the company concerned, Member States may provide for restricted access to such data by third parties in exceptional cases. (Judgement C-398/15)

Keine allgemeine Verpflichtung zur Vorratsdatenspeicherung

Jurius

ECJ – The Members States may not impose a general obligation to retain data on providers of electronic communications services. EU law precludes a general and indiscriminate retention of traffic data and location data, but it is open to Members States to make provision, as a preventive measure, for targeted retention of that data solely for the purpose of fighting serious crime, provided that such retention is limited to what is strictly necessary. (Judgements C-203/15 and C-698/15)

Neues Konzept für Interoperabilität der Informationssysteme vorgestellt

Jurius

On 16 May 2017, the European Commission presented the seventh report on progress made towards an effective and genuine Security Union. In addition to providing an update on progress made on key files, the report focuses on the ongoing work to improve information management for borders and security.

Moneyhouse AG muss bisherige Datenbearbeitungspraxis anpassen

Jurius

BVGer – The Federal Administrative Court partly endorses the claim of the Federal Data Protection Commissioner against the practised data handling of the Moneyhouse AG. In particular, it notices that personality profiles are being created on www.moneyhouse.ch, given that details of repute, family circumstances, education and professional activity are declared. Consequently, the Moneyhouse AG is being ordered to seek the explicit consent of the persons concerned for such disclosure of data. (Judgement A-4232/2015) (ah)

Verdeckte Ermittlung und Audio-Überwachung rechtmässig

Jurius

BGer – The order for an undercover investigation on a married couple suspected by the prosecution of the Canton of Solothurn of having killed their son and grievously harmed their daughter was lawful. Equally not objectionable is the monitoring of the parents´ flat, contrary to the opinion of the Solothurn Supreme Court. The Supreme Court endorsed the relevant complains of the prosecution of the Canton of Solothurn. Another complaint, in contrast, is being dismissed. (Judgements 1B_114/2016, 1B_115/2016, 1B_116/2016, 1B_117/2016, 1B_118/2016, 1B_119/2016, 1B_122/2016) (ah)

Keine Pflicht für Facebook Schweiz zur Herausgabe von Nutzerdaten

Jurius

BGer – The prosecution of the Canton of Waadt cannot oblige Facebook Switzerland Sàrl to hand over data of a Facebook account allegedly opened in Switzerland. The concerned data is neither owned by nor under control of Facebook Switzerland. To access the data, it needs to be requested by virtue of a mutual legal assistance from Facebook Ireland Ltd. The Supreme Court endorses the complaints from Facebook Switzerland and its both directors. (Judgements 1B_185/2016, 1B_186/2016, 1B_188/2016) (ah)

Kein neuer Regulierungsbedarf für Social Media

Jurius

In its status report on the legal basis for social media published on 10 May 2017, the Federal Council came to the conclusion that there is currently no requirement for new regulatory measures. Regulatory projects such as the revision of the Data Protection Act and work to enhance youth media protection will improve protection of social network users in Switzerland in the medium term. Developments, also at the international level, however, should continue to be monitored.

Für einen sicheren Umgang mit dem Internet der Dinge

Jurius

The 24th semi-annual report of the Reporting and Analysis Centre for Information Assurance (MELANI), published on 20 April 2017, addresses the most important cyber incidents of the second half of 2016 both in Switzerland and abroad. The focal point of the report is the internet of things, which is becoming increasingly significant.

Verordnungen zur Fernmeldeüberwachung: Vernehmlassung eröffnet

Jurius

In its meeting of 22 March 2017, the Federal Council opened consultation procedures regarding the executive regulations implementing the Federal Mail and Telecommunications Monitoring Act of 18 March 2016 (BÜPF). As was already the case with the act itself, the executive regulation´s main objective is to inhibit offenders of withdrawing themselves from the prosecution authorities by means of new communication technology. (ah)

Zur Zulässigkeit der Speicherung von dynamischen IP-Adressen

Jurius

BGH – The claimant demands from the defendant, the Federal Republic of Germany, to desist saving dynamic IP addresses. These are numerical sequences assigned to networked computers at each dial-in, enabling them to communicate in the Internet. (Judgement VI ZR 135/13) (ah)

Störerhaftung für passwortgesichertes WLAN verneint

Jurius

BGH – The First Civil Chamber, which is responsible for copyright amongst other things, has dealt with the relation between the liability of copyright violations and the requirements for securing an internet connection with WLAN function. (Judgement I ZR 220/15) (ah)

Weitere Eilanträge in Sachen «Vorratsdatenspeicherung» erfolglos

Jurius

BVerfG – Once again, the applicants have opposed the Act concerning the Introduction of Mandatory Storage and a Maximum Preservation Period for Traffic Data of 10 December 2015 by applying for an interim measure. (Judgements 1 BvR 3156/15, 1 BvR 141/16) (ah)

Beschränkung des Rechtsschutzes im TKG bedarf der Nachbesserung

Jurius

BVerfG – § 35 Abs. 5 Satz 2 TKG schränkt den gerichtlichen Rechtsschutz gegen Entscheidungen der Bundesnetzagentur ein, indem eine rückwirkende Korrektur zu niedrig festgesetzter Entgelte davon abhängig gemacht wird, dass bereits ein Eilantrag auf vorläufige Anordnung eines höheren Entgelts erfolgreich war. (Urteile 1 BvL 6/14, 1 BvL 6/15, 1 BvL 4/15, 1 BvL 3/15)

Kritik an geplanter Datenschutz-Novelle

Jurius

The Federal Government´s draft for implementing the European General Data Protection Regulation into German law has been answered critically by experts. In the Committee of Internal Affairs´ consultation of 27 March 2017, the intended restrictions of the rights of those concerned has been criticized, amongst other things. With these limitations, the draft drops behind the current German law, but conceivably won´t be able to fulfil the requirements of the European Regulation. (ah)

Änderung des E-Government-Gesetzes

Jurius

The authorities of the direct federal administration should be encouraged to «publish the untreated data obtained for the fulfilment of their public-law tasks», provided that there are no exemptions opposing. (ah)

Regierung regelt automatisiertes Fahren

Jurius

The Federal Government wants to create the basis for automated driving and thus wants to regulate the cooperation between the vehicle and its highly or fully automated driving function and the driver. (ah)

Identity Austria (IDA) verbindet die analoge und digitale Welt

Jurius

Recently, the government submitted a new e-government act for official consultation. Now, the ministry of the interior presents a forward-looking application that will enable citizens to comfortably and securely access scriptures and identity documents on their smartphones. (ah)

Leichtfried richtet ExpertInnenrat für automatisiertes Fahren ein

Jurius

Jörg Leichtfried, minister of transport, established an expert board for automated driving. 13 members in total, originating from science, economy, civil society, administration and traffic organizations, will assess applications regarding tests of self-driving cars in Austria in the future. (ah)

Europaweit einheitliche Regeln für digitale Barrierefreiheit

Jurius

For the first time, the EU implements consistent accessibility standards in all EU member states by means of the so-called Web Accessibility Directive that came into force on 22 December 2016. The directive includes websites and mobile applications of public authorities. By this, websites are increasing their accessibility, especially for disabled people. They are becoming more perceptiable by getting readable, audible and tactile, easier to operate by supporting all kinds of input devices like keyboard, mouse and touchscreen, and more comprehensible and robust so that they do not impose challenges for technologies such as screen readers. (ah)

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