Cloud Computing Contracts as Contracts for the Supply of Digital Content: Classification and Information Duty

Author(s): Żok Krzysztof / Language(s): English Issue: 2/2019

Cloud computing contracts are among the most frequently concluded contracts over the Internet. Until now, however, they have been considered mainly from the perspective of data protection and intellectual property laws. Although these analyses provide valuable insights, they do not fully cover an important area, i.e. consumer protection. The article focuses on the latter issue, taking Consumer Rights Directive as a reference point. The Directive is one of the latest acts concerning consumer protection in the European Union. It also introduces a new type of agreement that should cover cloud computing contracts. In addition, characteristically for European law, it provides for an information duty as a means of consumer protection. The article examines these two aspects by seeking an answer to the following questions: (1) do cloud computing contracts classify as contracts for the supply of digital content? And (2) do the provisions on information duty suit well cloud computing contracts? The analysis includes the results of empirical studies of these contracts. In the conclusion, the article states that the new type of contract may not significantly improve consumer protection, mainly due to the ambiguity resulting from recital 19 of the Directive. On the other hand, consumers may benefit from the provisions on information duty, though it does not directly address the main problems connected with cloud computing contracts. The article is divided into four parts. The first provides an introduction to the topic. The second discusses cloud computing contracts as contracts for the supply of digital content. The third analyses the provisions on information duty from the point of view of the contracts under consideration. Finally, the fourth summarises previous comments.

Consequences of the Use of Personalization Algorithms in Shaping an Offer – A Private Law Perspective

Author(s): Katarzyna Południak-Gierz / Language(s): English Issue: 2/2019

Personalization mechanisms in consumer e-commerce allow for the adjustment of the time, form and manner of contact, the way of concluding the contract and the availability and content of the offer. Subsequently concluded agreements can be seen as a new phase of development of the consumer transaction model – secondary individualization replaces standardization. The possibility of concluding contracts on a massive scale is retained, but with added granularity and flexibility that mimic the individualisation of transactions. Special provisions for personalized contracts are missing on the EU level and within the Polish legal system.The starting point is an analysis of the reaction of the traditional private instruments of Polish law towards the personalization of offers – case law and doctrinal approach towards the concept of a standard contract and an individually negotiated one are examined. Next, the pre-contractual stage is investigated – the personalization process is explored from the perspective of unfair practices regulation, and the legal basis for the personalization process in the context of the GDPR is discussed. While Polish national law focuses on combating the undesired results of personalization, the EU initiatives aim at granting ex-ante protection. The mechanism in directive 2005/29/EC is being supplemented with an information protection mechanism (consent requirement). The limitations of this model are identified and some alternative solutions are proposed.

Juridical Status of So-called Smart Contracts against the Background of the Polish Legal Framework

Author(s): Bogna Kaczorowska / Language(s): English Issue: 2/2019

Among substantial advancements challenging contemporary contract law special attention is given to autonomous, cryptographic solutions based on decentralised infrastructure provided by blockchain technology, intended to execute transactions automatically, designated as smart contracts. The need for comprehensive research on legal implications of practical implementation of this technological innovation is triggered particularly by the prognostications declaring it a valid alternative to hitherto contract law framework that is expected to be ultimately replaced by algorithmic mechanisms underpinning smart contracts. A relevant assessment of the impact smart contracts are presumed to have on the contract law domain requires a thorough analysis of their juridical status. The specificity of the category of smart contracts raises doubts whether they comply with the definition criteria inherent to contract law terminology. Additionally, it is of material importance to determine the function smart contracts can perform in the sphere of contractual practice and to confront it with the role and axiology of contract law. The article aims at analysing the peculiarities of smart contracts from the perspective of the Polish private law system with account being also taken of current development tendencies concerning the concept of contract.

Regulatory Approaches To Facebook And Other Social Media Platforms: Towards Platforms Design Accountability

Author(s): Ján Mazúr,Mária Patakyová / Language(s): English Issue: 2/2019

The paper represents a contribution to the ongoing discussion on regulating social media platforms (SMP) and especially Facebook, mostly fueled by a recent series of scandals such as Cambridge Analytica, which highlighted the recognized problem of Facebook’s lack of accountability. In response to the scandal, which coincided with long-expected wide-scale implementation of the EU’s GDPR, Facebook introduced a series of measures on its platform, such as improved traceability of advertisers, or greater power over one’s own data. Besides, Facebook was put under scrutiny of competition law authorities, mainly the German Bundeskartellamt. Taking into consideration all the regulatory approaches, the question remains whether sufficiently effective design for holding the SMPs accountable has been established or not. In the paper, we first outline the accountability issues SMPs currently face, namely the data handling and privacy issue, the platforms’ impact on political processes, or related monopolistic positioning. We ascertain that common denominator of these issues is the platforms’ design, which is created to achieve business objectives, while imposing substantial negative externalities on the society. Alongside, we review the platforms’ reactions, i.e. the self-regulatory measures adopted by the platforms in 2017–2018. We also specifically focus on the evaluation of the competition law as one instrument of regulating certain aspects of the platforms, especially in light of the recent German Bundeskartellamt decision on Facebook. We claim that most of the measures and current instruments, although improving the lack of accountability, fall short of addressing the core issue of Facebook’s status – absence of scrutiny over the platform’s design.

Goffman's Theory as a Framework for Analysis of Self Presentation on Online Social Networks

Author(s): Šlerka Josef,Lucie Merunková / Language(s): English Issue: 2/2019

To investigate how people form their identity on social networks and control the impressions they invoke in their audiences, we analyzed personal profiles of 50 university student Facebook users using Erving Gofmann´s dramaturgical theory. We identified five basic forms through which users create and present their identities: The Public diary, The Influencer, The Entertainer, Job and education and Hobby, as well as the appropriate secondary roles performed by users who interact with them. These findings are corroborated by 8 semi-structured interviews with respondents, which enable a more in-depth exploration of the way they use Facebook, the social interactions they participate in, their motivation for posting contributions, and how they engage in impression management, perceive privacy and resolve issues caused by multiple audiences. A better understanding of how privacy is conceived and what motivates users to share their personal information online is essential for public authorities’ cooperation on shaping company privacy policies and creation of appropriate legal regulations. The key results confirm the presence of conscious effort to make a desired impression and prove Goffman’s theory of face-to-face interactions to be relevant in the context of online social networks.

In the Procedural Surroundings of Consumer Protection: Online Dispute Resolution, the Adversarial Principle, and Tendencies toward Settlement

Author(s): Erik Björling / Language(s): English Issue: 2/2019

The article builds on a pluralistic perspective on law and the understanding that legal research must take into account the procedural and institutional landscape where legal rights are enforced. In relation to online dispute resolution (ODR), two procedural mechanisms, namely the adversarial principle and the tendency toward settlements, are studied and discussed. The adversarial principle (argued to be integral to most ODR procedures) and tendencies toward settlements (also argued to be integral to most ODR procedures) are considered in relation to the overarching (and possibly contradictory) objectives of protecting individual consumer rights and the interest of increasing economic efficiency within the EU’s internal market.

Autonomous Vehicles and the Law: Technology, Algorithms and Ethics. Lim, Y. H.

Author(s): Veronika Příbaň Žolnerčíková / Language(s): English Issue: 2/2019

Web-page Screenshots as an Evidence in Civil Procedure of Ukraine

Author(s): Nelli Golubeva,Kristina Drogoziuk / Language(s): English Issue: 1/2019

Currently the question about the possibility of including a screenshot of a web-page to the base of evidence in civil procedure of Ukraine remains open. The problem is a lack of systematic rules for determining procedures for obtaining electronic evidence, in particular, screenshots, in Ukrainian legislation, as well as possibilities for their use while considering civil cases. Various electronic evidence should correspond various admissibility criterias, and therefore the admissibility of electronic evidence should be examined separately according to each type of evidence. Separate issues of investigation, fixation and certification of web-screenshots as evidence in civil procedure of Ukraine are considered in this article. The analysis of legal regulation and problems of the practical implementation of use of web-pages screenshots in Ukrainian civil procedure are carried out. The ways of implementation of recommendation rules for registration and fixation of web- -screenshots in civil procedure, which can be applied for all European states, are proposed.

The Right to a Fair Trial in Automated Civil Proceedings

Author(s): Maria Dymitruk / Language(s): English Issue: 1/2019

Challenges associated with the use of artificial intelligence (AI) in law are one of the most hotly debated issues today. This paper draws attention to the question of how to safeguard the right to a fair trial in the light of rapidly changing technologies significantly affecting the judiciary and enabling automation of the civil procedure. The paper does not intend to comprehensively address all aspects related to the right to a fair trial in the context of the automation of civil proceedings but rather seeks to analyse some legal concerns from the perspective of the Article 6 of the European Convention on Human Rights and the case-law of the European Court of Human Rights. Section 1 discusses the issues of using artificial intelligence in the justice and automation of the judicial proceedings. Section 2 is devoted to the judge supporting system based on artificial intelligence and psychological requirements of its practical use. Section 3 presents the right to a fair trial in civil cases established by the Article 6 of the European Convention on Human Rights, while subsequent sections characterize its elements with respect to the possibility to automate civil proceedings: a right to have case heard within a reasonable time in section 4 and a right to a reasoned judgment in section 5.

Enhanced Functionality Brings New Privacy and Security Issues – An Analysis of eID

Author(s): Tamás Szádeczky / Language(s): English Issue: 1/2018

As compared with traditional paper-based versions and the standard username- -password login to e-Government services, the new electronic identity and travel documents have made on-site electronic and on-line authentication of citizen more comfortable and secure. The biometric passport was introduced in Hungary in 2006. A decade later the electronic identity card (eID) was implemented. The reason for the improvement of such documents is twofold: enhancing security features and performing new functions. The development is certainly welcome, but it also generates new types of risks, with which governments and citizens must take into account. In this paper, I will first analyze the most widespread technologies of data storage cards from the passive elements to the chipcards, including the biometric passport. The objective is to provide an overview of the technical development as a background to my paper. I will then proceed to an analysis of the relevant EU and national legal background, data elements, data protection and the functions (ePASS, eID, eSIGN) of the new Hungarian and German identity card, as well as the security risks and protection properties of the eID-type documents. The paper concludes with a summary of the lessons learned from and the risks involved in the current solutions in Hungary and Germany.

Privacy in Public Space: Conceptual and Regulatory Challenges. Timan, T.; Newell, B. C.; Koops, B.-J. (eds.)

Author(s): Jakub Míšek / Language(s): English Issue: 1/2018

Review of: Timan, T.; Newell, B. C.; Koops, B.-J. (eds.). (2017) Privacy in Public Space: Conceptual and Regulatory Challenges. Cheltenham: Edward Elgar Publishing, 315 p.

Legal Personhood: Animals, Artificial Intelligence and the Unborn. Kurki, V. A. J.; Pietrzykowski, T. (eds.)

Author(s): Jan Zibner / Language(s): English Issue: 1/2018

Review of: Kurki, V. A. J.; Pietrzykowski, T. (eds.). (2017) Legal Personhood: Animals, Artificial Intelligence and the Unborn. Springer International Publishing, 158 p.

Social Media Account as an Object of Virtual Property

Author(s): Kateryna Nekit / Language(s): English Issue: 2/2020

This article analyzes the concept of virtual property as well as the legal nature of social media accounts to explore whether these can be considered objects of property, in particular, of virtual property rights. It examines the essence of virtual property and reveals the specifics of owner’s powers regarding to digital assets. It also specifies what kind of objects should be treated as digital assets. The technical and legal nature of a social media account are analyzed to reveal whether the latter can be considered as “possession” in terms of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. Some legal issues regarding to the use of a social media account including the division of rights to business accounts and inheritance of social media accounts are investigated. The approaches in various countries to the problem of determination of the post-mortem fate of digital assets are analyzed, and a unified tendency to consider social media accounts as part of the estate transferred to the heir is revealed. The conclusion is drawn that the extension of the property regime to social media accounts could ensure an appropriate legal protection of users’ rights.

Misuse of Contactless Payment Cards with Radio-Frequency Identification

Author(s): Libor Klimek / Language(s): English Issue: 2/2020

Counterfeiting of means of payment is one of European crimes. The Treaty on the Functioning of the European Union lists counterfeiting of means of payment as one of the areas of particularly serious crime with a cross-border dimension. At the European Union level a brand-new legislative instrument harmonising counterfeiting of means of payment has been adopted – the Directive (EU) 2019/713 on combating fraud and counterfeiting of non-cash means of payment. This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the areas of fraud and counterfeiting of non-cash means of payment. Moreover, it facilitates the prevention of such offences, and the provision of assistance to and support for victims. The Directive is addressed to the Member States of the European Union. They shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31st May 2021. The contribution deals with criminalisation of the misuse of contactless payment cards with Radio-Frequency Identification (RFID) technology. It is divided into three sections. The first section focuses on definition of Radio-Frequency Identification and payment cards with Radio-Frequency Identification. The second section focuses in detail on a new European Union approach to combat counterfeiting of means of payment addressed to its Member States – i.e. the Directive (EU) 2019/713 on combating fraud and counterfeiting of non-cash means of payment. The last third section is focused on non-legislative prevention possibilities.

Everything is NOT Awesome. A Lego Brick as a 3D Trade Mark

Author(s): Skibicki Rafal / Language(s): English Issue: 1/2021

This paper discusses the reasoning of the protection of the flagship Lego products – the rectangular brick and the Lego minifigure as the trade marks from the perspective of European Union trade mark system and the Polish legal system. The main part is dedicated to the most important absolute grounds for refusal of trade mark registration, i. e. the distinctive character and the shape of goods necessary to obtain a technical result. However, it is crucial to understand the history, especially the history of legal protection, of both the brick and the minifigure. In the end, the Lego case allows to draw general conclusions about the overlapping of different intellectual property protection regimes and the relation of public domain to the trade mark registration. All these considerations are presented with the use of both comparative and doctrinal method.

Digital Content Portability and its Relation to Conformity with the Contract

Author(s): Pavel Koukal / Language(s): English Issue: 1/2021

In this paper the author analyses the possible convergences and divergences of two current legislative proposals of the European Commission: the Portability Regulation and the Digital Content Directive. Both proposals address the issue of access to digital content from different perspectives and complement each other, although they use different legal terminology and in some respects have a different scope of application in the question of cross-border portability of the digital content provided for monetary counter performance to consumers. The Portability Regulation focuses on the cross-border portability of digital content [Art. 3 (1) Portability Regulation), while the Digital Content Directive specifies the consumer rights related to the distribution of digital content and subsumes the accessibility of digital content under the concept of “conformity of the digital content with the contract” [Art. 6 (1), (2) Digital Content Directive). The author aims to answer whether a consumer who is not allowed to use the digital content in EU Member States besides the Member State of his residence will be entitled to pursue claims arising from the non-conformity of the digital content with the contract.

Standard Setting Organisations for the IoT: How To Ensure a Better Degree of Liability?

Author(s): Gennari Francesca / Language(s): English Issue: 2/2021

This early stage research article aims to outline an issue that, though not strictly connected to the cyber-sphere, is most likely going to affect it. Standard Setting/Developing Organisations (SSOs/SDOs) are getting more and more important in the electronics manufacturing field and also in the IP field by setting de facto mandatory rules for products to be safer but, most importantly, more efficient. Standards create trust in complex objects such as IoT devices, that are increasingly more available, especially the ones for the house. It is worth mentioning that the standards these organisations envision are not comparable to legislation but carry a significant ‘moral’ weight (soft law). However, these organisations are private in character and work on a voluntary basis. The problem lies in the creation of the standard when the essentiality of a patented innovation has to be assessed. These processes rely on the self-certification of businesses that their invention is truly essential to the development of a certain standard, which has led to a proliferation of new Standard Essential Patents (S.E.P.s). But in this case, there are no means to ensure some form of liability of these organisations when defects and shortcomings arise. It is argued that unless some form of liability is created for these organisations, IoT objects will never gain the trust of final users.

"A Robot Is Watching You”: Humanoid Robots And The Different Impacts On Privacy

Author(s): Lucas Cardiell / Language(s): English Issue: 2/2021

Robots, particularly the ones that belong to a special type of robotic technologies designed and deployed for communicating and interacting with humans, slip into more and more domains of human life - from the research laboratories and operating rooms to our kitchens, bedrooms, and offices. They can interact with humans with facial expressions, gaze directions, and voices, mimicking the affective dynamics of human relationships. As a result, they create new opportunities, but also new challenges and risks to peoples’ privacy. The literature on privacy issues in the context of Social Companion Robots (SCRs) is poor and has a strong focus on information privacy and data protection. It has given, however, less attention to other dimensions of privacy, e.g. physical, emotional, or social privacy. This article argues for an “evolving” or “transformable” notion of privacy, as opposed to the “elusive” concept of privacy elaborated by leading privacy theorists such as Daniel J. Solove (2008) and Judith J. Thomson (1975). In other words, rather than assuming that privacy has a single core or definition (as defined, e.g., in Warren and Brandeis' 1890 paper), it maintains that it is important to conceptualize privacy as distinguishable into various aspects, including informational privacy, the privacy of thoughts and actions, and social privacy. This inductive approach makes it possible to identify new dimensions of privacy and therefore effectively respond to the rapid technological evolution in AI technologies which is constantly introducing new spheres of privacy intrusions.

AI-based Legal Technology: A Critical Assessment of the Current Use of Artificial Intelligence in Legal Practice

Author(s): Jana Soukupová / Language(s): English Issue: 2/2021

In recent years, disruptive legal technology has been on the rise. Currently, several AI-based tools are being deployed across the legal field, including the judiciary. Although many of these innovative tools claim to make the legal profession more efficient and justice more accessible, we could have seen several critical voices against their use and even attempts to ban these services. This article deals with the use of artificial intelligence in legal technology and offers a critical reflection on the current state of the art. As much as artificial intelligence proved that it could improve the legal profession, there are still some underlying risks connected to the technology itself, which may deem its use disturbing.

Cyber Security: Lessons Learned From Cyber-Attacks on Hospitals in the COVID-19 Pandemic

Author(s): Jan Kolouch,Tomáš Zahradnický,Adam Kučínský / Language(s): English Issue: 2/2021

The article deals with the issue of cyber security, specifically the security of medical facilities. The introduction summarizes and briefly analyzes the cyber attacks demonstrated on Czech health care facilities in the period from 12/2019 to 1/2021, together with the procedures adopted by the responsible authorities. The article also newly presents the current regulatory requirements for cyber security of hospitals. In the context of past attacks and based on analyzes of attacks, current legislation and events, the article will provide an opinion on whether the requirements for cyber security of hospitals are set sufficiently or whether this area should be revised. At the same time, measures will be recommended to strengthen the cyber security of hospitals.