21 September 2017

Dear readers

Today’s issue of Jusletter IT once again shows how diverse the thematic of IT and Law is: Data Protection, Cybercrime, E-Commerce, Telecommunications Law, IP and Patent Law, E-Voting, E-Justice as well as LegalTech.

Rolf H. Weber deals with liability law in the digital world. He gives an overview of the technological developments, offers a spectrum for current liability instruments and provides indications for possible developments in liability law. The author concludes that the digitization also affects the framework of liability law and thus requires reassessment.

In a shortened version of his master thesis, Martin C. Walther analyses the Austrian Data Protection Law 2000 (DSG 2000) with regard to the right of erasure in both the public and private sector (see Martin C. Walther, Die Zulässigkeit der Datenverwendung als Voraussetzung des Rechts auf Löschung, Editions Weblaw, Bern 2017).

In its judgement 1B_29/2017 of 24 May 2017, the Swiss Federal Court decided that the sighting of a private Facebook account by the prosecution authorities without requesting international legal assistance was legit, even though the data itself was located abroad. Damian K. Graf contemplates and comments the judgement concerning, amongst other things, the Cyber Crime Convention (CCC).

Even though the Chinese economy has slightly lost its shine, an enormous market is still luring. In her article «The Business Opportunities and the Legal Challenges in Cross-Border E-Commerce», Fiona Gao explains how it can be operated remotely.

From an «Information and Communication Technology» (ICT) point of view, Christa Hofmann describes how the amended provisions regarding the surveillance of post and telecommunications traffic (BÜPF and implementation rules) can complicate the offering of open WLAN in Switzerland.

What is the legal situation if, in a scientific article, statements are made without stating the source, and when they analogously comply with a work still amendable to the terms of protection for copyright? Is the failure to reference a source justifiable? Inge Hochreutener answers these questions and more on the usurpation of foreign copyright from an IP law point of view in connection with academic publications.

«Patent trolls» utilize the growing significance of patents in the range of cloud technology for their dubious practices. They gather cloud computing patents for the sole purpose of suing other companies on the grounds of patent infringement. Clara-Ann Gordon not only deduces an increased pressure on businesses to strengthen their use of IP as a strategic weapon and as a shield against attacks, but also an increasing danger for the users of cloud services to making themselves guilty of patent infringement unsuspectingly.

As of 1 January 2018, the legal situation in regards to electronic legal transactions in German administrative courts changes. Nadja Braun Binder outlines the overall strategic direction of the legislative change, the regulations on the electronic access to the administrative courts and the provisions for electronic file management.

Peter Bieri determines that within the last years, performance requirements for judges have increased. This came along with a professionalization of the judgeship as well as with increasing information needs in relation to the work of judges. With these considerations in mind, the article, based on the author’s doctoral thesis, deals with data and information that is attributable to individual judges.

Pertaining controllability, security and quality there are major differences between voting via letter or via electronic channel. Uwe Serdült, Eric Dubuis and Andreas Glarner compare the utilization of the electronic and the letter channel in Switzerland, namely in those voting process phases where the application of the indicated criteria appears reasonable.

Daniel Pfäffli provides a conference proceeding on the Weblaw Forum LegalTech 2017. Along with the speeches, he particularly highlights the workshops in which participants could learn more about document automation and their Social Media presences.

In her master thesis, Manuela Cassano deals with the topic «LegalTech – Law 4.0». The law student at the University of Zurich treats the technical developments and the rethinking in the field of law. Beforehand, she tries to retrieve information as well as opinions from directly involved parties by means of a survey. The survey can be filled out here.

We wish you a fascinating reading and are looking forward to greet you again on 23 November 2017 for the next issue of Jusletter IT on the topic of Artificial Intelligence & Law!

Erich Schweighofer and Franz Kummer

On our own account: Don’t miss the Weblaw Forum LegalTech 2018!

Data Protection & Cybersecurity

Braucht die digitale Welt ein neues Haftungsrecht?

Rolf H. Weber

Technical developments (especially digitization) undermine the traditional liability regime basing on the connection to physical goods. Therefor, a reorganization is ubtruding; the assignment of responsibility and risk management have to be paramount. (ah)

Die Löschung von Daten nach dem DSG 2000

Martin C. Walther

The article deals with the practical implementation of the right of erasure following the Austrian data protection act 2000 (DSG 2000) in public and private sectors. Using specific examples and legal fields, the article summarizes what is to be done when the processing of personal data is not or no longer permitted. Therefor, an insight into the two central processing sectors of the DSG 2000 is provided, the question of whether and how the enforcement of the right of erasure is possible is constituted and, finally, a short conclusion is given. (ah)

Strafverfolgung 2.0: Direkter Zugriff der Strafbehörden auf im Ausland gespeicherte Daten?

Damian K. Graf

Are Swiss criminal law enforcement authorities legally authorized to use Facebook credentials collected in the context of a criminal investigation in order to sign in to the account and search chat messages, and is the resulting evidence admissible in criminal proceedings – even though the accessed data is stored on a server abroad? The Swiss Federal Court answered yes when it recently affirmed the decision of a lower court which had lifted the sealing of such evidence. In doing so, it misjudged the boundaries set forth by both the principle of territoriality and the Cybercrime Convention (CCC).

E-Commerce

The Business Opportunities and the Legal Challenges in Cross-Border E-Commerce

Fiona Gao

Under the cross-border E-commerce business model, Swiss companies could sell their high quality Swiss products directly to Chinese consumers without setting up any local presence in China. This article introduces the different cross-border E-commerce business models that are currently available and the key legal issues involved.

Telecommunications Law

Open WLAN in der Schweiz – doch nicht am Ende?

Christa Hofmann

From an ICT provider point of view, the new legislation on the surveillance of postal and telecommunications traffic that will enter into force as of 2018 raises fundamental questions related to open WiFi/WLAN offers in Switzerland. The article sheds light on the possible impact of this legislation on the practice and takes into account new developments that occurred since July 2017 (state: 6 September 2017). (ah)

IP & Patent Law

Usurpation fremder Urheberschaft im Spannungsfeld wissenschaftlicher Publikationen

Inge Hochreutener

Legal assessment of the question of ursupation of foreign copyright from an IP law point of view in connection with academic publications. In particular, there has to be differentiated between plagiarism, and therefore an IP law infringement, and general infringement of the academic code of conduct. (ah)

Patent Protection and Trends in Cloud Computing

Clara-Ann Gordon

Many businesses rely on cloud service providers more and more. Not all of them are aware of the resulting patent law related questions. Following Swiss law, a client using allegedly violating cloud technology can be part of an indirect patent violation – this simply based on him using the cloud. Alongside the continually growing significance of patents in the area of cloud technology, the number of patent exploiters – so-called patent trolls – increases. The article monitors these trends and describes how cloud service providers can protect their clients against such patent claims. (ah)

E-Justice & E-Voting

E-Justice in der deutschen Verwaltungsgerichtsbarkeit ab dem 1. Januar 2018

Nadja Braun Binder

The introduction of electronic legal transactions («Elektronischer Rechtsverkehr» [ERV]) is making a slower progress than the legislator anticipated more than a decade ago. The legal bases, that where hitherto flexible and taking into account the various needs of the federal states are now being simplified with different reform steps. At the same time, the technical requirements are facilitated, e.g. through making De-Mail or the special electronic lawyers PO box («besonderes elektronisches Anwaltspostfach» [beA]) available as secure transmission channels. Thereby and with the transition to compulsory ERV, e-justice should be established in the German administrative jurisdiction for the future. (ah)

Bearbeitung von Daten über Richterinnen und Richter

Peter Bieri

Within the last years, performance requirements for judges have increased. This came along with a professionalization of the judgeship as well as with increasing information needs in relation to the work of judges. With this initial position, the author started his PhD project within the framework of a research project «Basic Research into Court Management in Switzerland», supported by the Swiss National Science Foundation (SNSF). The article presents the subject, the methodic as well as selected results of the now concluded dissertation. (ah)

Elektronischer versus brieflicher Stimmkanal im Vergleich

Uwe Serdült

Eric Dubuis

Andreas Glaser

The authors compare the voting channel via letter with the electronic voting channel regarding controllability, security and quality of the vote. In this review, they differentiate the occurences before, while and after a vote. E-Voting leads to changes in the voting and election procedure in the following respects: harmonisation and centralisation of electoral registers, delivery of a receipt to the voting person, verification of the entirety of cast votes, saved expenses for Swiss abroad, elimination of invalid votes, automatically reduced efforts in vote counting. Important questions remain unanswered and should be further discussed. (ah)

LegalTech

Tagungsbericht Weblaw Forum LegalTech 2017

Daniel Pfäffli

On 29 June 2017, the Weblaw Forum LegalTech 2017 took place in the World Trade Center (WTC) in Zurich, dealing with the topic «LegalTech – Digitization of the Legal Market». The event gave an overview on the current situation in the LegalTech landscape and enlarged upon numerous aspects such as the digital law firm, online marketing, document automation as well as knowledge management. The paper constitutes a report on the event and, in particular, summarizes the presentations of the (inter)national experts. (ah)

News

Online-Filesharing kann Urheberrechtsverletzung darstellen

Jurius

CJEU – Making available and managing an online platform for sharing copyright-protected works, such as «The Pirate Bay», may constitute an infringement of copyright. Even if the works in question are placed online by the users of the online sharing platform, the operators of that platform play an essential role in making those works available. (Judgement C-610/15)

Kommission genehmigt Lösungen für Hochgeschwindigkeitsinternet in ländlichen Gebieten Deutschlands

Jurius

The European Commission has endorsed, under EU state aid rules, three German virtual access products that will allow the use of so-called vectoring technology in state funded high speed broadband networks. This will boost connectivity in rural areas, whilst maintaining competition in the Single Market.

Kommission sorgt für Interoperabilität der EU-Informationssysteme

Jurius

The Commission is delivering on its commitment to ensure interoperability and address the existing shortcomings of EU information systems for security and border management, as set out by the Commission in its 7th Security Union Report on 16 May 2017 and endorsed by the European Council on 22–23 June 2017.

Massnahmen zur Verhütung von Radikalisierung und Cyber-Bedrohungen

Jurius

The European Commission presents the 8th report on progress made towards an effective and genuine Security Union, calling for an acceleration of the ongoing work to enhance the security of EU citizens.

Wirksamere Massnahmen zur Bekämpfung von Cyberkriminalität auf .ch- und .swiss-Websites

Jurius

Taking the fight to cybercriminals who use .ch or .swiss addresses for illicit purposes: this is one of the objectives of the revision of the Ordinance on Internet Domains, approved by the Federal Council on 15 September 2017. The new text makes it possible to block not only the addresses of the sites which try to launch phishing attacks on web users or which spread malicious software but also those which indirectly support such activities.

Den Datenschutz verbessern und den Wirtschaftsstandort stärken

Jurius

The Federal Council aims to adapt data protection to the digital age and to strengthen the position of citizens. Simultaneously, it conforms the Swiss law to the developments in the EU and the Council of Europe, thus ensuring that open data transfers between Swiss businesses and those in the EU remain possible. In doing so, the Federal Council fulfils a concern of the Swiss economy. In its session of 15 September 2017, the Federal Council adopted the corresponding dispatch. (ah)

Bundesrat verabschiedet Botschaft zur Teilrevision des Fernmeldegesetzes

Jurius

In its session on 6 September 2017, the Federal Council adopted the message concerning the partial revision of the Telecommunications Act. The draft legislation will now be dealt with by parliament. In recent years telecommunications has experienced extremely rapid development: new broadband networks are carrying more and more data at faster and faster speeds. Internet services such as videotelephony, messengers and chats are increasingly replacing traditional telecommunications services. The revised legislation should reflect this change.

Bundesrat setzt das Nachrichtendienstgesetz in Kraft und verabschiedet das dazugehörige Verordnungsrecht

Jurius

In its session of 16 August 2017, the Federal Council put the Security and Intelligence Agencies Act into effect as of 1 September 2017. At the same time, it took notice of the consultation procedure regarding results of the associated ordinances and adopted the NDV, the VIS-NDB and the VAND. The three ordinances will come into force along with the Act. (ah)

NDG: Bundesverwaltungsgericht bereit für neue Aufgaben

Jurius

The Federal Administrative Court is ready to perform the tasks assigned per 1 September 2017 within the framework of the new Security and Intelligence Agencies Act. Therefor, it amended its legal bases and took technical measures for the exchange with the involved Federal Agencies. (ah)

Bundesgerichtshof verneint Beweisverwertungsverbot bei einer Auskunft zum Filesharing

Jurius

BGH – The First Civil Chamber, which is responsible for copyright, amongst other things, has dealt with the question if, in case of a copyright infringement due to file sharing, the information that the copyright holder obtained by the final customer-provider – who is not the network operator – is subject to an inadmissibility of evidence in the process against the subscriber. This is subject to the condition that a judicial permission under § 101 section 9 of the Copyright Act is given solely for the disclosure of the network operator, but not for the disclosure of the final customer-provider. (Judgement I ZR 193/16) (ah)

Keine Massenüberwachung deutscher Behörden

Jurius

The First Investigation Committee («NSA») has, as defined by both coalition fractions, not found any indications that Germans are being monitored massively on German ground. (ah)

Änderungen am Löschpflichten-Gesetz

Jurius

The Committee on Legal Affairs has adopted significant changes in the draft of the Network Enforcement Law. An approved amendment proposed by the coalition fractions takes up points of critique and change recommendations that were inter alia submitted in an expert hearing as well as by the Federal Council. The draft law of the fractions CDU/CSU and SPD aims at forcing internet platforms such as Facebook and Twitter to a more rapid and more effective deletion of punishable contents. (ah)

Spionagesoftware für Ermittler

Jurius

The Committee on Legal Affairs of the Federal Council has decided that German criminal investigators shall be permitted to use spy software. The intention was to take into account the fact that criminals increasingly communicate via encrypted messaging services. (ah)

TechLawNews by Ronzani Schlauri Attorneys

Werbung über «Influencer»

Simon Schlauri

Cloud Data: Quick to Anger and Hard to Resolve

Daniel Ronzani

Botschaft zur Revision des Fernmeldegesetzes: Neuerungen für Anbieterinnen von Fernmeldediensten

Simon Schlauri

New Draft of Federal Act on Data Protection (FADP)

Daniel Ronzani