Private Law Liability for Faulty ICT

This chapter considers instances where ICT applications cause physical, material, economic, or emotional harm, with a focus on third party liability or tort law. The chapter should be read as an important example of how private law liability may step in to deter the development, sale, or usage of faulty ICT. It discusses the relevant legal conditions of damage, causation, fault liability, and strict liability, ending with questions around compensation and deterrence as the overarching goals of tort law.

International and Supranational Law

This chapter turns to international and supranational law. It focuses on international law in the context of the Council of Europe (CoE) and on supranational law in the context of the European Union (EU). The chapter first discusses the concept of jurisdiction and its formative status in national, international, and supranational law, after which it provides a more in-depth overview of international law and supranational law. This involves a discussion of the relationship between national constitutions and the binding force of international treaties, the role of consent and custom in the force of international law, and the legal effect of fundamental principles and mandatory law that no state can ignore. Next, the special case of the supranational EU jurisdiction is introduced, notably the distribution of sovereignty between the member states and the Union and the most important legislative instruments: regulations and directives. Finally, the mutually constitutive relationship between internal and external sovereignty is connected with the idea of an international rule of law that addresses states as fiduciary agents of the international legal order.

Copyright in Cyberspace

This chapter is an introduction to the domain of intellectual property (IP) rights, notably copyright. For computer scientists, the most relevant part of copyright law concerns copyright on computer programs, or software. Copyright on software is the enabling precondition for the General Public Licence (GPL) and the open source initiative. Before discussing copyright on software, however, this chapter first investigates the position of IP law in the context of constitutional democracy and clarifies that IP law is private law. From there, the chapter provides an overview of the various types of IP that are most relevant, after which it turns to the history, objectives, and scope of copyright protection. Finally, this chapter discusses EU copyright law and the issues of open source and free access.

Privacy and Data Protection

This chapter covers privacy and data protection. This entails a series of legal requirements for development and design, for the default settings, and for the employment of computer architectures. In addition, the chapter defines the right to privacy as a subjective right, attributed by objective law, which may be national (constitutional) law, international human rights law, or supranational law (EU fundamental rights law). The chapter first confronts the landscape of human rights law at the global, national, and EU level. It then inquires into the right of privacy, as guaranteed under the ECHR and the Charter of Fundamental Rights of the European Union (CFREU), and finally provides an extensive analysis of the new fundamental right to data protection, as guaranteed by the CFREU and protected by the General Data Protection Regulation (GDPR).

Domains of Law: Private, Public, and Criminal Law

This chapter considers the three major domains in law and the study of law: private, public, and criminal law. These domains have their own principles, vocabularies, and structures, each geared to the type of relationships they aim to regulate and constitute. This chapter first explains how these domains differ based on a set of conceptual distinctions, such as absolute and relative rights, legal subjects and legal objects, mandatory and default law. After describing law as a unity of primary and secondary rules and their underlying principles (in chapter 2), this chapter describes law as a system of legal relations between legal subjects, with regard to legal objects. This understanding provides the foundations for the introduction of the core structure, vocabulary, and underlying principles of each domain, highlighting the difference between supposedly horizontal relations in private law and the vertical relations of public and criminal law. This, for instance, connects with the prominence of the legality principle in constitutional, administrative, and criminal law, whereas individual autonomy, fairness, and societal trust inform the rules and principles of private law.

Law, Democracy, and the Rule of Law

This chapter faces the question of law's ‘mode of existence’, by asking what law does—and how. To accomplish this, the chapter explains the concept of the ‘sources of law’ and the nature of legal reasoning, notably the attribution of legal effect when specified legal conditions apply. The crucial distinction between primary (regulative) and secondary (constitutive) rules is discussed, thus demonstrating that law is not a ‘bag of rules’ but a dynamic architecture of legal norms (rules and principles). Finally, we address the question of the relationship between law, democracy, and the rule of law. To qualify as law, a normative framework must aim to sustain, develop, and balance certain values—even though they may be incompatible in concrete cases. These constitutive values are defined as legal certainty, justice, and instrumentality.

Introduction: Textbook and Essay

This introductory chapter briefly situates the rise of modern positive law as an affordance of a specific information and communication technology (ICT)—namely the printing press, which is better described as an information and communication infrastructure (ICI). One of the challenges that modern positive law faces is the transformation of the ICI from books and mass media to a digital and computational ICI. Cyberspace here refers to cyber (steering) and connects with cybernetics (remote control of one's environment by means of feedback loops). This highlights that the new ICI is fundamentally different from speech, writing, printing, and mass media. Cyberspace is not merely a digitized version of physical space, but refers to an architecture with two novel characteristics: its hyperconnectivity and its computational pre-emptions.

Cybercrime

This chapter explores the legal framework regarding cybercrime, with a focus on Europe. In the case of cybercrime, competent authorities face a moving target, as technological developments, both on the side of perpetrators and on the side of policing and forensics, often outwit prevalent and tested strategies against traditional crime. This chapter first raises the question of what makes cybercrime ‘cyber’, and then introduces the international and supranational legal frameworks that are meant to cope with cybercrime, with a focus on the Cybercrime Convention. Finally, the chapter offers a reflection on the image of the weighing scale where it comes to balancing safety and security against rights and freedoms.

Legal Personhood for AI?

This chapter considers legal personhood for artificial agents. It engages with the legal issues of autonomous systems, asking the question whether (and if so, under what conditions) such systems should be given the status of a legal subject, capable of acting in law and/or being held liable in law. The main reason for considering this option is the rise of semi-autonomous systems that display unpredictable behaviour, causing harm not foreseeable by those who developed, sold, or deployed them. Under current law it might be difficult to establish liability for such harm. To investigate these issues, the chapter explains the concepts of legal subjectivity and legal agency, before inquiring into the nature of artificial agency. Finally, the chapter assesses whether attributing legal personhood to artificial agents would solve the problem of private law liability for harm caused by semi-autonomous systems.

Closure: On Ethics, Code, and Law

This concluding chapter investigates the distinction between law, code, and ethics, as well as their interrelationship and their interaction. It is intended for those interested in the nexus of law and ethics, in the light of code- and data-driven information and communication infrastructures (ICIs). One of the main differences between law and ethics is that law provides closure whereas ethics remains in the realm of reflection as it lacks the force of law. However, a second difference turns the previous statement inside out: whereas law and the rule of law introduce checks and balances and demand democratic participation (at least in constitutional democracies), ethics may be decided by tech developers or behind the closed doors of the board room of corporate business enterprise. It can thus obtain the force of technology. Paradoxically, once ethics gains the force of technology, the space for the practice of ethics is reduced.