23 November 2017

Dear readers

Artificial intelligence, robotics, autonomous vehicles – the world as we know it is changing at a breakneck pace. This does not only have an impact on society, but also challenges the legal system. In this issue, experts are discussing different legal fields that are affected by the implementation of new technologies. That law struggles to keep pace with technological change is an often-heard complaint in this context, as is the problem that the intellectual silos which the university system builds around subjects prevent the type of interdisciplinary exchange that is needed to address the challenges of the future. These can only be mastered if we change radically not only the structures of academic knowledge production and dissemination, but also those of legal education. The lawyers of the future will need different skillsets to serve the needs of industry, government and civil society. Jusletter IT has always explored new grounds in digital knowledge dissemination, introduced and tested new formats and structures at overcoming the limitations of the traditional print media. The IRIS conference has always been one of the rare events that foster and encourage this type of interdisciplinary cross-fertilisation, and also in this edition, some of the papers were first presented at, and received feedback from, the IRIS conference. But as important as interdisciplinary research is intergenerational exchange, to ensure that legal responses are in lock-step with technological development, and the lawyers of the future are equipped with the research skills to understand technological challenges in their social, economic and political context. In education, slowly but surely we find new formats such as legal hackathons and digital design competitions enter the law school curriculum, in addition to the more familiar mooting competitions. One experience that we made with these events at Edinburgh was also that teaching will often become much more bi-directional and rewarding as a result – our students, grown up as digital natives, can make connections and see opportunities that will surprise even (especially) the most seasoned academic researcher. To allow legal research to keep pace with technological change, teaming up specialists across disciplines is therefore only the beginning. It was therefore a particularly welcomed opportunity in editing this edition to also approach early career researchers and doctoral students, or to team up students from the Robotics LLM course at the University of Edinburgh with more experienced mentors. Together with the approach Anne Helms and I took to editorial feedback and peer review, this ensured that all contributions are as rigorous and authoritative as our readers can expect, while benefiting from original and unique insights, building research capacity and helping to shape the digital agenda.

Jonathan Sinclair and Burkhard Schafer look at autonomous vehicles from a liability and insurance point of view. The authors describe the UK’s way of dealing with these new technologies after describing a scenario that sounds like science fiction, but has become possible with the advent of automated vehicles.

Another perspective is brought by Giuseppe Contissa, Francesca Lagioia and Giovanni Sartor, who discuss the ethical dilemmas that occur when autonomous vehicles face an unavoidable accident. Who should decide the path a car chooses: the programmer, the driver or the car itself?

Yet another legal field that is affected by autonomous vehicles is data protection. Maria Cristina Gaeta takes up on the storage and processing of personal information under consideration of the General Data Protection Regulation.

Computer codes supersede lawyers when it comes to setting up contracts. Artificial intelligence makes smart contracts possible. Gabriel Olivier Benjamin Jaccard distinguishes smart contracts from blockchain and crypto-property and gives a legal analysis of smart contracts under Swiss law.

What regulations are necessary when speaking about robots? How can safety and security as well as data protection be secured? Erica Palmerini shows up different approaches of regulating robotics and highlights the EU Resolution with recommendations to the Commission on Civil Law Rules on Robotics.

Should a robot be considered as a person? Can a society function in the future without any form of legal personality for autonomous artificially intelligent entities? Robert van den Hoven van Genderen advises that certain forms of acting by robots may be conceivable to obtain a certain form of legal personality to carry out their tasks.

Burkhard Schafer and Erica Fraser discuss yet another point of view on robots. They give an overview on the legal issues that have to be faced when AI and robots start to create inventions and explain IP ownership in this context.

When artificial intelligences start to interact with human beings, safety is one of the biggest concerns. Yueh-Hsuan Weng explains why «Social System Design» is indispensable when deciding what kind of ethics, policy and law can be applied into autonomous robots.

The positions of power between human beings and their technologies are inverting. Hin-Yan Liu and Karolina Zawieska examine how this shift of power will impinge on human rights.

I wish you a fascinating reading! The next issue of Jusletter IT will be published on 22 February 2018 and will contain the IRIS2018 conference proceedings.

Burkhard Schafer
Prof., LLM.
The University of Edinburgh

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

Autonomous Vehicles

Autonomous Vehicles: The Path to Liability is Still Unclear

Jonathan Sinclair

Burkhard Schafer

Governments are scrambling to support innovation and pre-empt societal expectations, no more so than in the emerging domain of autonomous vehicles. This publication will address one countries (UK) approach towards legal liability, assess the proposition being put forth and highlight key concerns that question the pragmatic approach being presented. A case will be made against defaulting to a model of strict liability and insurance, suggesting that the possibilities of external manipulation (car-hacking) and the very nature of dynamic machine learning algorithms prove obstacles in assigning accountability.

Accidents Involving Autonomous Vehicles: Legal Issues and Ethical Dilemmas

Giuseppe Contissa

Francesca Lagioia

Giovanni Sartor

Accidents involving autonomous vehicles (AVs) raise difficult ethical dilemmas and legal issues. In this paper, we argue that self-driving cars should not be programmed to kill, that is, they should not be equipped with pre-programmed approaches to ethical dilemmas. Here we shall explore a different approach, namely, giving the user/passenger the task (and burden) of deciding what ethical approach should be taken by AVs in unavoidable accident scenarios. We thus assume that AVs be equipped with what we call an «Ethical Knob», a device enabling the passenger to choose between different settings corresponding to different moral approaches or principles. An AV would accordingly be entrusted only with implementing the user’s ethical choices, while the manufacturer/programmer would be tasked with enabling the user’s choice and ensuring its implementation by the AV.

The Issue of Data Protection in the Internet of Things with Particular Regard to Self-driving Cars

Maria Cristina Gaeta

Selbstfahrende Autos sind bereits auf dem Markt verfügbar. Sie werden uns aber nicht nur fahren, sondern auch grosse Mengen persönlicher Informationen speichern und verarbeiten. Die Nutzer bekommen hiervon und von den daraus entstehenden Risiken nichts mit. Die persönlichen Daten werden durch die Reg. 679/2016/EU, besser bekannt als Datenschutz-Grundverordnung (GDPR), geregelt. Aber reicht die europäische Gesetzgebung aus, um Nutzern von selbstfahrenden Autos den notwendigen Schutz zu bieten? Eine besonders wichtige Frage ist, ob die Zustimmung zur Verarbeitung persönlicher Daten genügt, um die Ziele der GDPR zu erreichen, oder ob weiterer Schutz benötigt wird. (ah)

Smart Contracts

Smart Contracts and the Role of Law

Gabriel Jaccard

The paper gives an overview on smart contracts and assesses their legal relevance. The first part explains the notion of smart contract and provides simple examples of them. In the second part, the author proposes a legal analysis of smart contract. He first explores how smart contracts can be relevant in the eyes of the law and then differentiates and assesses smart contract with regards to their types. Finally, he looks at chosen problematic of smart legal contracts.

Robotics

Regulating Robotics in Europe: a Perplexed View

Erica Palmerini

This article provides a general overview of the recent regulatory activities that have been launched at the European level with regards to the topics of robotics and artificial intelligence. The scope and approach of the EU Parliament Resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics is discussed, in the light of the current debate within the social sciences about the scientific and technological advancements in these fields.

Robot as a Legal Entity, Legal Dream or Nightmare?

Robert van den Hoven van Genderen

Robots are coming! If our society will benefit from this new era we have to look if it is possible to give a certain legal personhood to robots because will perform tasks in this society with legal effects. Therefore it is necessary to compare the role of robots with existing legal persons and see how we can create legal trust and confidence and to accept that autonomous intelligent artificial beings can play a role in the coming age of robotism.

Self-Made (Machine) Men – IP Implications of Inventions by Robots

Burkhard Schafer

Erica Fraser

The question if, and if so to what degree, AIs can display creativity has been an important research topic within the AI community. Innovative use of computers by artists has led to speculation of the copyright implications of computer-generated works as early as the 1950s. Less discussed however are the implications of computer creativity for patent law. This paper aims to give a first overview of the issues that the legal system may face when AIs and robots start to find novel solutions to problems which result in potentially patentable inventions.

Towards Integrated Governance for Intelligent Robots: A Focus on Social System Design

Yueh-Hsuan Weng

As intelligent robots become increasingly common in human society, it will be essential to begin incorporating ethical and legal factors into their design process. Hence, legislators and policy makers should learn from the interdisciplinary concept of «Social System Design» in order to better regulate social robots and their attendant AI-driven risks. This problem has many facets, and as such suggests an interdisciplinary approach towards thinking about the design of emerging intelligent machines.

A New Human Rights Regime to Address Robotics and Artificial Intelligence

Hin-Yan Liu

Karolina Zawieska

The relationship between human beings and AI appears to be on the cusp of foundational change: until recently the human ability to control technology was unquestioned, but now the trend suggests a declining power differential and the possibility of an inverse power relationship soon. AI is poised to exert increasing influence over human opportunities and activities, such that human beings are increasingly under «the loop». This paper explores the impact that the inversion of power between human beings and their technologies has on the protection of fundamental human rights.

News

Ban on Publication of Identifiable Images Justified

Jurius

ECHR – The ban on publication of identifiable images of criminal defendant in murder trial was justified. The case concerned the complaint by two media companies about a judicial order banning the publication of images in which the defendant in a criminal trial for murder could be identified. (Judgement 51405/12)

Verbrauchereigenschaft bei privater Nutzung eines Facebook-Kontos

Jurius

CJEU – According to Advocate General Bobek, Maximilian Schrems may be able to rely on his consumer status in order to sue Facebook Ireland before the Austrian Courts with respect to the private use of his own Facebook account. However, Mr Schrems cannot rely on his consumer status with respect to claims assigned to him by other consumers. (Judgement C-498/16)

Expertengruppe gegen Fake News

Jurius

The Commission launched a public consultation on fake news and online disinformation on 13 November 2017 and set up a High-Level Expert Group representing academics, online platforms, news media and civil society organisations.

Bericht zum EU-US-Datenschutzschild

Jurius

On 18 October 2017 the European Commission published its first annual report on the functioning of the EU- U.S. Privacy Shield, the aim of which is to protect the personal data of anyone in the EU transferred to companies in the U.S. for commercial purposes.

Bekämpfung illegaler Online-Inhalte

Jurius

The Commission is presenting guidelines and principles for online platforms to increase the proactive prevention, detection and removal of illegal content inciting hatred, violence and terrorism online.

Keine Urheberrechtsverletzung bei der Bildersuche durch Suchmaschinen

Jurius

BHG – The First Civil Chamber, which is responsible for copyright, amongst other things, has decided that an advertisement containing prorietary images that have been found by search engines in the internet does not categorically infringe any copyrights. (Judgement I ZR 11/16) (ah)

Online-Werbung nicht von der Werbeabgabe erfasst: VfGH lehnt Beschwerden von Verlagen ab

Jurius

VfGH – The non-integration of internet advertisement that is substantially rendered from abroad lies within the legislative freedom. (Judgement E 2025/2016-16) (ah)

Antrag gegen das Verbot von Bestpreisklauseln für Internet-Buchungsplattformen abgewiesen

Jurius

VfGH – The interference with the freedom of employment is justified. The ban serves the securing of an open competition. (Judgement G 44-45/2017-9) (ah)

Vorteile und Potentiale digitaler Technologien übertreffen die Gefahren

Jurius

At the 2017 symposium of the «Nationwide Network Open Youth Work» on the topic «digital youth work» in Vienna, state secretary Muna Duzdar issued a warning on increasing dangers arising from hate posts, discrimination as well as intentional misinformation. (ah)

Der Bundesrat passt das Urheberrecht ans Internet-Zeitalter an

Jurius

With the revision to the Copyright Act, the Federal Council wants to strengthen the rights and interests of creative artists and the cultural industries by taking a resolute approach to pirated online content. At the same time, it upholds the principle that consumers who take advantage of such illegal offers will not be criminalised.

Staatlich anerkannte digitale Identität: Bundesrat bringt Gesetz bis Sommer 2018

Jurius

Varying offers and services in the internet presuppose that users can identify themselves correctly and securely. Thus, the users need an electronic identity. The Federal Council therefore wants to adopt clear rules for a digital proof of identity that is state-approved, verfiable and explicit. (ah)

Bundesrat setzt neues BÜPF auf 1. März 2018 in Kraft

Jurius

The new Federal Mail and Telecommunications Surveillance Act (BÜPF) and its executive regulations will come into force on 1 March 2018. Switzerland thus receives a contemporary, clear legal basis for the surveillance of the postal and telecommunications traffic. (ah)

Auswirkungen der Digitalisierung auf den Arbeitsmarkt

Jurius

On 8 November 2017, the Federal Council adopted the report on impacts the digital shift has on the labour market. The protection of a high labour market participation and good job qualities is the superordinate aim of the Federal Council – also in the digital age. (ah)

Hohe Zufriedenheit mit den E-Government-Dienstleistungen in der Schweiz

Jurius

According to the E-government Monitor Study which was published on 27 October 2017, the degree of satisfaction of the general public in Switzerland with the online services of the authorities is high. The use of and degree of satisfaction with online services were examined in Germany, Austria and Switzerland.

Schweiz unterzeichnet europäische Deklaration zu E-Government

Jurius

On Friday, 6 October 2017, Federal Councillor Ueli Maurer signed a declaration on eGovernment jointly drawn up by the EU and EFTA in the context of the Ministerial eGovernment Conference in Estonia. The declaration contains five core principles for eGovernment and is intended to be a guide for further development.