23 May 2019

Dear readers

The current issue of Jusletter IT focuses on Blockchains. Hans Kuhn, Cornelia Stengel, Luzius Meisser and Rolf H. Weber discuss the legal framework for Blockchain and Distributed Ledger Technology with focus on tokens regarding civil law within the context of the Federal Council's preliminary draft of 22 March 2019. In addition, Jürg Baltensperger deals with the topic of Blockchains in connection with the fight against money laundering. He proposes concrete tools for minimizing money laundering risks in decentralized systems. Barbara Anita Möri examines the compatibility of Blockchain technology with data protection and analyses the technical aspects and responsibility of the system.

As part of the Swiss Data Protection Forum session on e-voting – Voting secrecy and data protection, Benedikt van Spyk, Christian Folini and Reto Fanger discuss the technical challenges of e-voting systems which arise from the tension between the requirements for maintaining voting secrecy on the one hand and the claim to data quality and the associated reconstructability on the other. The discussion is presented in three podcasts. Valentin Conrad also deals with data protection in connection with collecting personal data on the Internet. He comments and compares the legal situation in the EU (GDPR) with the situation in Switzerland (FADP).

Can the children's rights to their own image really be enforced? Anne Mirjam Schneuwly and Jonas Fischer pursue this question by analysing the legal situation with a special focus on age-specific self-determination and the inherent protective rights of the child's personality. Nicolai Bleskie focuses not only on the rights of personality but also on intellectual property. He analyses the currently discussed copyright reforms in the EU and Switzerland and points to the limits of unlimited possibilities on the Internet.

How are net neutrality and network neutrality limited? Pascal Favrod-Coune presents the current conditions in Switzerland and compares the situation with the USA and the EU. He discusses the necessary and possible adjustments at the level of online platforms in order to achieve more Internet neutrality.

In his practice-oriented analysis of cloud-based service level agreements, Philippe Gilliéron discusses the best practices and focuses on topics such as availability, response times of service providers and troubleshooting.

A new technology is discussed by Jakub Harašta, Jaromír Šavelka, Frantisek Kasl and Jakub Míšek. They present a tool for automatic segmentation of decision texts in Czech supreme courts with the aim of using it for automatic reference recognition in data processing. Jakub Gładkowski, Aleksander Kulasza also deal with new technologies which are based on legislative changes in Poland. They discuss the dematerialization of securities and the simple joint-stock company as a new legal form of operative business activity.

We hope you enjoy reading, listening and watching this issue!

Erich Schweighofer

Editor, ao. Univ.-Professor Vienna, AT

Franz Kummer
Editor, Co-owner Weblaw AG Bern, CH

P.S: The 5th Weblaw Forum LegalTech will take place in Bern on 5 June 2019. The focus of the event will be «People and Machines». To enable participation for the international audience of Jusletter IT, the event will be streamed live. You can register and obtain further information here: https://www.weblaw.ch/forum.

Webinar@Weblaw series «Blockchain & Emerging Technologies», 6, 19 June and 3 July 2019, data protection, financial market law and other topics. You can register and obtain further information here: https://www.weblaw.ch/blockchain-reihe2019.

Blockchain

Wertrechte als Rechtsrahmen für die Token-Wirtschaft

Hans Kuhn

Cornelia Stengel

Luzius Meisser

Rolf H. Weber

The Federal Council Report of 14 December 2018 on the legal framework for distributed ledger technology and blockchain identified the need for certain legal adjustments in the Code of Obligations, in the Debt Enforcement and Bankruptcy Act and in the financial market regulations in order to enable the issuance and trading of blockchain-related digital values with increased legal certainty. On 22 March 2019 the Federal Council presented a Report containing the respective law-changing proposals to the public for comments. In this article, the authors discuss the new provisions for the Code of Obligations, particularly the creation of uncertificated securities, and submit ideas for some adjustments to the presented proposals.

Geldwäschereibekämpfung in der Blockchain

Jürg Baltensperger

Blockchain and combating money laundering seem to be highly incompatible at first sight. On the one hand a dynamic and decentralized technology allowing asset transfers globally and mainly anonymous within a fraction of a second. On the other, a rather cumbersome national control system, that reviews, often manually, transactions for suspicious of money laundering. This article suggests specific tools that may counteract money laundering risks in decentralized systems.

Blockchain und Datenschutz

Barbara Anita Möri

Blockchain and data protection are in a tense relationship due to the technology of immanent invariability. Contrary to the prevalent opinion that these two institutes are not compatible with each other, the author concludes that it’s possible to find a technical solution to bring the technology in line with data protection and to use it accordingly. (kg)

Data Protection

Web data collection by Swiss actors in a data protection perspective

Valentin Conrad

Data scraping, data crawling or collecting data through an API are methods which enable to collect personal data online. These techniques create significant problems in terms of data protection. We provide here a short analysis of the phenomenon pursuant to the GDPR and the FADP.

Das Recht der Kinder und Jugendlichen am eigenen Bild in der digitalen Welt

Anne Mirjam Schneuwly

Jonas Fischer

The authors ask whether the children's right to their own image is legally enforceable or indeed just a dead letter in today's digital age, despite its legally binding character. They analyse the present legal situation and particularly focus on the idea of age specific self-determination and the child's inherent right to its personality as matters stand.

IP Law

Reform des Urheberrechts

Nicolai Bleskie

Flow of information, distribution of pictures, videos and opinions over the Internet – a putative matter of course. Both the EU and Switzerland are currently debating copyright reforms. Copyright protection and personal rights are at odds with uncontrolled and unlimited copies on the Internet. Technical and content-related barriers lead to legal difficulties with regard to fundamental rights. The author presents an overview of the reforms, points out their advantages and disadvantages and presents further approaches in order to meet the balancing act of limiting unlimited possibilities on the Internet. (kg)

Telecommunications Law

Net(work) Neutrality in Switzerland: Where Do We Stand?

Pascal Favrod-Coune

As in other jurisdictions, network neutrality was at the heart of the revision of the Swiss Telecommunications Act in 2019. To begin with, this article aims to expose the position of Switzerland in comparison to other major jurisdictions, the United States and the European Union. Subsequently, it questions the fact that network neutrality is identical to net neutrality with the increasing rise of online platforms, even though the debate on net neutrality often refers solely to network neutrality. This article analyzes in which respect the regulation could and should impose neutrality on online platforms in order to make the Internet more neutral for users.

LegalTech

Automatic Segmentation of Czech Court Decisions into Multi-Paragraph Parts

Jakub Harašta

Jaromír Šavelka

František Kasl

Jakub Míšek

The authors describe a tool for automatic segmentation of the Czech top-tier court decisions (Supreme Court, Supreme Administrative Court, and Constitutional Court) into multi-paragraph parts. The tool allows segmenting a decision into Header, Party Response, Proceeding Summary, Court Argumentation, Footer, Dissent, and Footnotes. Segmenting text into multi-paragraph parts allows to treat different parts differently even when they contain similar linguistic or other features. Eventually, this is useful in data processing pipelines, as this tool is planned for use in automatic reference recognition purposes.

New technologies in the Polish provisions regulating financial markets and company law

Jakub Gładkowski

Aleksander Kulasza

The article presents amendments in the Polish law in the sector of financial markets and company law which make use of innovative IT solutions and thus lead to a greater protection of investors in Poland. The examples of such changes in law are the obligatory dematerialisation of the Polish securities (of non-public entities), such as bonds and the introduction of a new legal form of operating business activity, namely a simple joint stock company, for which the dematerialisation of shares is provided with the use of technologies such as Public Key Infrastructure and Keyless Signature Infrastructure, and the blockchain type of technology.

Cloud Computing

Service Level Agreements (SLA) in cloud-based agreements

Philippe Gilliéron

This paper is not meant to be a scientific one, but rather a business-oriented paper reflecting the author’s experience after having negotiated several hundreds of cloud-based agreements and related SLAs for numerous companies ranging from small and medium-sized enterprises (SME) to multinational ones, in most cases in favor of customers. As a result, this paper is mostly targeted towards practitioners having to deal with SLAs in their daily work; in other words, readers will not find any footnotes or scholarly references as would normally be expected from a scholarly piece of work.

Podcasts

Technische Hintergründe der anonymen elektronischen Stimmabgabe

Christian Folini

Das sichere Online Abstimmen unter Wahrung des Stimmgeheimnisses bedeutet eine grosse technische Herausforderung. Der Widerspruch zwischen den beiden Anforderungen lässt sich von der Systemarchitektur durch die Anforderungsdokumente bis in das Gesetz hinein verfolgen. Dieser Widerspruch führt zu einer sehr hohen Komplexität, welche sich bei Software oft in Fehlern im Code niederschlägt. Und genau dies ist beim E-Voting System der Post geschehen. Der Vortrag beleuchtet die technischen Hintergründe einer der bekannt gewordenen Schwachstellen.

E-Voting: Datenschutzrechtliche Aspekte einer politisch umstrittenen Thematik

Reto Fanger

From the point of view of data protection law, the issue of data security is central to e-voting in order to ensure compliance with the processing principles for personal data and, in particular, the accuracy of the data (data quality). The complete documentability and reconstructability of all processes required for this makes anonymisation impossible and is thus in a tense relationship to the confidentiality of votes. Data security can only be achieved – subject to the protection of voting secrecy – with balanced technical and organisational measures within the framework of certified ISMS/DSMS.

E-Voting im Kanton St.Gallen

Benedikt van Spyk

Dr. Benedikt van Spyk, Vizestaatssekretär Kanton St.Gallen, stellt das E-Voting Projekt des Kantons St.Gallen vor. Im Kanton St.Gallen können nebst den Auslandschweizern seit 2016 auch alle Stimmberechtigten in fünf Pilotgemeinden elektronisch abstimmen und wählen. Er erläutert die Motivation des Kanton St.Gallen, sich für E-Voting zu engagieren und berichtet von den gemachten Erfahrungen. Zudem wird vertieft auf die Frage nach dem Schutz von Personendaten im Rahmen von E-Voting eingegangen.

TechLawNews by Ronzani Schlauri Attorneys

Immaterialgüterrechtlicher Schutz von neuronalen Netzen (machine learning)

Simon Schlauri

TiVoization for Self-Driving Cars

Daniel Ronzani

Datenschutz und moderne Fahrzeuge: Der Fall Tesla in Basel

Simon Schlauri

New EU Digital Copyright Law: Will Google and YouTube Still Function in 2021?

Daniel Ronzani

News

UK violated privacy of activist whose personal data appeared in extremism database

Jurius

ECHR – In its judgment of 24 January 2019 in the case of Catt v. the United Kingdom the European Court of Human Rights held, unanimously, that there had been: a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights (Judgment no. 43514/15).

Court stresses importance of hyperlinks on Internet in libel case

Jurius

ECHR – In its judgment of 4 December 2018 in the case of Magyar Jeti Zrt v. Hungary the European Court of Human Rights held, unanimously, that there had been: a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. (Judgment no. 11257/16)

Zur Zulässigkeit der unaufgeforderten Aufschaltung eines separaten Wifi-Hotspots bei WLAN-Kunden

Jurius

BGH – The I. Civil Senate of the Federal Court of Justice, which is responsible, among other things, for claims arising from the Act against Unfair Competition, has ruled that the activation of a second WLAN signal on the WLAN router made available to its customers by a telecommunications service provider, which can be used by third parties, is permissible under competition law if the customers have a right of objection, the activation of the second WLAN signal does not impair their Internet access and also does not entail any other disadvantages, in particular no security and liability risks or additional costs. (Judgment I ZR 23/18) (ph)

Illegal zugänglich gemachte Filme im Internet

Jurius

BGer – As an access provider (provider of Internet access), Swisscom cannot be obliged to block access to Internet pages containing films made illegally accessible. The Federal Supreme Court rejects a complaint lodged by a company in Switzerland which is entitled to the copyrights for some of the films concerned. (Judgement 4A_433/2018) (dr)

Datenbearbeitung bei «Helsana+» teilweise rechtswidrig

Jurius

BVGer – Some of the data gathering undertaken for the app-based bonus programme "Helsana+" violates the provisions of the Swiss Data Protection Act. However, it is not unlawful to use legally acquired data on individuals with only basic insurance. This is the decision reached by the Swiss Federal Administrative Court. (Judgement A-3548/2018)

Aufbau Kompetenzzentrum Cyber-Sicherheit

Jurius

During its meeting on May 15, 2019, the Federal Council adopted the implementation plan for the 2018–2022 national strategy for the protection of Switzerland against cyber risks (NCS) and thereby made further decisions on the establishment of the competence centre for cyber security. At the same time, the Federal Council decided to strengthen human resources in the area of cyber risks with an extra 24 posts.

Bundesrat gibt gesetzliche Grundlagen für Beteiligung an eOperations Schweiz in Auftrag

Jurius

The organisation «eOperations Switzerland», founded in 2018, aims to enable the joint development and operation of IT solutions in the field of e-government for digitised services provided by the federal government, cantons and municipalities. In order for the Confederation to be able to participate in eOperations Schweiz AG, a legal basis is required. The Federal Council supports the participation of the Confederation and instructed the Federal Department of Finance (FDF) at its meeting on 30 January 2019 to develop these legal bases. (ph)

Bundesrat stärkt militärische Cyberabwehr

Jurius

In order to fulfil its mission at all times, the army must protect its IT systems against cyber attacks. At its meeting on 30 January 2019, the Federal Council issued a new ordinance regulating the organisation and responsibilities for maintaining military security in the cyberspace to ensure that the armed forces have the instruments they need to protect themselves. The ordinance will enter into force on 1 March 2019. It specifies the legal requirements that have been created with a view to the further development of the armed forces. (ph)

Die Digitalisierung im Gesundheitswesen fördern

Jurius

The Swiss population should be able to make even better use of the possibilities offered by digitisation for their health. To this end, the Federal Council adopted the eHealth Switzerland 2.0 strategy at its meeting on 14 December 2018. The focus will be on the introduction and dissemination of the electronic patient file. (ph)

Bundesrat will Rahmenbedingungen für Blockchain/DLT weiter verbessern

Jurius

During its meeting on 7 December 2018, the Federal Council adopted a report on the legal framework for blockchain and distributed ledger technology (DLT) in the financial sector. The report shows that Switzerland’s legal framework is well suited to dealing with new technologies, including blockchain. Nevertheless, there is still a need for selective adjustments. The Federal Council also noted the analysis of an interdepartmental working group on the money laundering and terrorist financing risks posed by crypto assets.