Jusletter IT

It is the 4th time that a LEFIS workshop is organised within the IRIS conference. Workshop organizers are the authors of this contribution. LEFIS covers all aspects of the IRIS spectrum with a strong focus on IT law. It is part of the English track of IRIS. Seven papers make proposals to build worldwide the «Legal Framework for the Information Society» (LEFIS), taking as reference these topics: human rights, personal data protection, patents and electronic commerce. Six papers come from Europe: one of Austria (Graz), Belgium (Brussels) and the Czech Republic (Brno) and three from Poland (Wroclaw). One paper comes from USA (New York).

Matthias C. Kettemann, University of Graz, «Building the Legal Framework of the Information Society: Lessons from Combating Hate Speech», presents three regulatory dimensions on the international fight against hate speech : 1) different philosophical approaches: Fight hate speech or allow it?; 2) different normative approaches: Combat hate speech through laws or self-regulation?; 3) and different technological approaches: Is censorship, blocking or filtering more effective and still legal (see paper in the proceedings)?

Filip Křepelka , Masarykova univerzita, Brno, «Automatic Translation of Proposed Patents of the European Union» outlines the new approach on the publication of proposed patents. Publication of laws is perceived as one of principles of modern law. Individuals and legal entities shall be informed about their rights and duties. In the European context, the law should be available in the mother tongue. Patents continue to be granted separately by the Member States, albeit patenting is harmonized worldwide and joint evaluation of applications is done by the European Patent Office. The proposed language regime of the patent with use of only the three working languages is controversial within the multilingual environment of the EU. It would be the first significant reduction of use of languages in the EU. «Attempts caused repeatedly failure of the projects of the patent of the European Community. The Member States, whose languages are excluded, reject the project with refusal to accede or with veto. This approach is obviously motivated with political consideration. Large European countries insist on use of their languages as symbol of their political and cultural strength. It is less clear whether stakeholders, i.e. big, medium-sized and small enterprises, individual inventors – are prepared to learn about patents in English or in other foreign languages. Consequences for professions serving patenting, i.e. for attorneys, patent attorneys, and translators – shall also not be ignored. Probably, the situation is different in various Member States. The European Commission admits in its proposals the language situation in the European Union. People and enterprises in the Member States whose languages are proposed to be omitted shall be assisted, as regards translation of their patent applications. They shall not also be held liable for breach of patent, if evidence of their bad faith is not provided. The third measure alleviating language inequality of the patent of the European Union with proposed language regime shall be automatic translation of patent applications and patent documentation in other languages. Systems of automatic translation of documents related to patent are developed with support of the European Union (PLuTO).»¹

Orlan Lee, New York Institute of Technology, «If they can change the meaning of ordinary English, they can change the law.», presents on the example of The Fair Credit Reporting Act (FCRA) of 1970 how the practice of collection and exploitation of personal data done by Consumer Reporting Agencies implies important risks for citizens. The federal agency authorized to enforce FCRA issues language satisfying the letter of the law but avoiding notice and consent resulting in a clear violation of the FCRA and the 4th, 5th, and 6th Amendments to the Constitution of the United States (see paper in the proceedings).

Paul de Hert andDariusz Kloza, Vrije Universiteit Brussel, «Smart grids, privacy and data protection» take as reference the Third Energy Package (2009) and the Commission’s roll-out of an EU-wide regulatory framework for smart grids, including smart meters. The main question is how to ensure observance of the right to privacy and the right to data protection within smart grids. The paper has three objectives: to identify privacy challenges with regard to smart grids, to answer whether smart grids are consistent with the current EU regulatory framework for privacy and data protection, and to discuss if there is a need for any tailoring down (see paper in the proceedings).

Szymon Gołębiowski, University of Wroclaw, «The story of the two disclosure approaches – A comparative study on Austria and Poland»: The communication of the identity of the tortfeasor to the aggrieved party is an indispensable precondition of initiating civil proceedings. The disclosure of the identity of the infringer constitutes one of the most crucial problems in the European system on the protection of personal data on the Internet. There is no direct provision in the whole EU legislation and case-law obliging the data controller to communicate the data on demand of the prospective plaintiff. The paper compares and contrasts Polish and Austrian solution of the problem in question and its compliance withPromusicae standard (see paper in the proceedings).

Dominik Góra, University of Wroclaw, «Do ICT strengthen or weaken our law?» gives an outlook on bad and good sides of implementing information and communication technologies in the legal system (see paper in the proceedings).

Oskar Filipowski, University of Wroclaw, «Competition issues in professional electronic trade» analyses regulation problems of the professional electronic trade. The first problem is the high pace of e-trade development and a traditional (outdated) legislation process. In EU law, the problem is tackled with very general norms that are «shaped» by guidelines of authorities and the ECJ. «Apart from such general problems also traditional issues of competition law are present. First of them is connected with entry barriers that may lead to foreclosure of the market. Even EDI’s require all market participants to trade through the given network using technically rigid, complex standards. High price of such a system or limitation of availability to potential market players can be a major issue here. In traditional competition law interpretation the emphasis would be placed at pricing issue, whereas the problem of compatibility and access to codes and procedures has a key role in electronic activities as the case Java vs. Microsoft shows. Also the problem of transparency occurs. As it is commonly stated, transparency is a major advantage for the competitive process due to the full information being given to the customer, thus rationalizing his choice. However, if the market is fully transparent, competitors can gather sensitive data about each other (such as market strategies, production potential etc.), which can be seen as anticompetitive behaviour. The problem of information flow between competitors was recognized by the EU (see: Case C-8/95/P New Holland Ford v Commission [1998] ECR I-565) and classified it as a breach of Art. 101 TFEU in some cases. As far as information is concerned there is another problem present. The idea of competition is based on an assumption that every market player can profit in the same way from the information available on the market. This issue can raise concerns if the B2B exchange system is managed by one (or a group) of potential parties and not by the independent third party. In this case the access to information is asymmetrical and therefore unfair. ECJ has set up some standards in Volbloker Case [EC IP/00/896 of 31 July 2000], however there is still a question pending if they are sufficient.»²

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Fernando Galindo, Penal Law, Philosophy of Law and History of Law Department
Faculty of Law, University of Zaragoza, 50009 ES,cfa@unizar.es

Erich Schweighofer, Universitätsprofessor, Universität Wien, Arbeitsgruppe Rechtsinformatik (DEICL/AVR) Schottenbastei 10-16/2/5, 1010 Wien AT,Erich.Schweighofer@univie.ac.at ,rechtsinformatik.univie.ac.at

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