The justice system is increasingly reliant on new technologies such as artificial intelligence (AI). In the field of criminal law this also extends to the methods utilized by police for preventing crime. Though policing is not explicitly covered by Article 6 of the European Convention of Human Rights, this article will demonstrate that there can be adverse effects of policing on fair trial rights and make the analogy to criminal investigations as a recognized pre-trial process. Specifically, it will argue that policing that relies on AI to predict crime has direct effects on fair trial processes such as the equality of arms, the presumption of innocence, and the right to confront the evidence produced against a defendant. It will conclude by challenging the notion that AI is always an appropriate tool for legal processes.
{"title":"Seeking Compatibility in Preventing Crime with Artificial Intelligence and Ensuring a Fair Trial","authors":"Kelly Blount","doi":"10.5817/mujlt2021-1-2","DOIUrl":"https://doi.org/10.5817/mujlt2021-1-2","url":null,"abstract":"The justice system is increasingly reliant on new technologies such as artificial intelligence (AI). In the field of criminal law this also extends to the methods utilized by police for preventing crime. Though policing is not explicitly covered by Article 6 of the European Convention of Human Rights, this article will demonstrate that there can be adverse effects of policing on fair trial rights and make the analogy to criminal investigations as a recognized pre-trial process. Specifically, it will argue that policing that relies on AI to predict crime has direct effects on fair trial processes such as the equality of arms, the presumption of innocence, and the right to confront the evidence produced against a defendant. It will conclude by challenging the notion that AI is always an appropriate tool for legal processes.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46606630","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Susskind, R. E. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press, 368 p.
Susskind，R.E.（2019）《在线法院与司法的未来》。牛津：牛津大学出版社，第368页。
{"title":"Online Courts and the Future of Justice. Susskind, R. E.","authors":"Anna Blechová, Pavel Loutocký","doi":"10.5817/MUJLT2020-2-9","DOIUrl":"https://doi.org/10.5817/MUJLT2020-2-9","url":null,"abstract":"Susskind, R. E. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press, 368 p.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":"14 1","pages":"329-341"},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48518850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the last decades, developments in the fields of genetics and bioinformatics caused a marked increase in the processing of human genetic data by various companies and institutions. This results in the adoption of several international documents and the emergence of legal norms on the protection of genetic data. The paper examines how and to what extent the interests and rights of the data subject with regard to the processing of genetic data are protected in the European Union. It is concluded that under the GDPR this task is implemented through classifying genetic data as sensitive, reliance on anonymisation and pseudonymisation, as well as introduction of the procedure of data protection impact assessment. Nevertheless, given the unique characteristics of genetic data distinguishing them from other categories of personal data, these measures cannot be regarded as sufficient and effective. The paper argues that current EU data protection legislation creates favourable conditions for genetic research, thereby ensuring particular public interests, but does not establish a special regime for genetic data processing appropriate to potential threats in this field and risks to the rights of data subjects.
{"title":"Processing of Genetic Data under GDPR: Unresolved Conflict of Interests","authors":"Petro Sukhorolskyi, Valeriia Hutsaliuk","doi":"10.5817/MUJLT2020-2-1","DOIUrl":"https://doi.org/10.5817/MUJLT2020-2-1","url":null,"abstract":"Over the last decades, developments in the fields of genetics and bioinformatics caused a marked increase in the processing of human genetic data by various companies and institutions. This results in the adoption of several international documents and the emergence of legal norms on the protection of genetic data. The paper examines how and to what extent the interests and rights of the data subject with regard to the processing of genetic data are protected in the European Union. It is concluded that under the GDPR this task is implemented through classifying genetic data as sensitive, reliance on anonymisation and pseudonymisation, as well as introduction of the procedure of data protection impact assessment. Nevertheless, given the unique characteristics of genetic data distinguishing them from other categories of personal data, these measures cannot be regarded as sufficient and effective. The paper argues that current EU data protection legislation creates favourable conditions for genetic research, thereby ensuring particular public interests, but does not establish a special regime for genetic data processing appropriate to potential threats in this field and risks to the rights of data subjects.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":"14 1","pages":"151-176"},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42494670","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In January 2020, Austria publicly announced that some of its governmental institutions have been hit by a significant malicious cyber operation and that it cannot be denied – at least for the moment – that a state was behind this operation. One month later, the Austrian Foreign Ministry declared the cyber operation to be officially over. While Austria noted that it took “countermeasures” against the operation, it is not entirely clear what it meant by that. This article elaborates the question what response options a state like Austria would have against a malicious cyber operation under the current framework of international law. It, hence, tries to answer when a “hackback” is lawful under international law and when it is not.
{"title":"Malicious Cyber Operations, “Hackbacks” and International Law: An Austrian Example as a Basis for Discussion on Permissible Responses","authors":"E. Schweighofer, Isabella Brunner, Jakob Zanol","doi":"10.5817/MUJLT2020-2-4","DOIUrl":"https://doi.org/10.5817/MUJLT2020-2-4","url":null,"abstract":"In January 2020, Austria publicly announced that some of its governmental institutions have been hit by a significant malicious cyber operation and that it cannot be denied – at least for the moment – that a state was behind this operation. One month later, the Austrian Foreign Ministry declared the cyber operation to be officially over. While Austria noted that it took “countermeasures” against the operation, it is not entirely clear what it meant by that. This article elaborates the question what response options a state like Austria would have against a malicious cyber operation under the current framework of international law. It, hence, tries to answer when a “hackback” is lawful under international law and when it is not.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":"14 1","pages":"227-258"},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47869888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Social Media Account as an Object of Virtual Property","authors":"K. Nekit","doi":"10.5817/MUJLT2020-2-3","DOIUrl":"https://doi.org/10.5817/MUJLT2020-2-3","url":null,"abstract":"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.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":"14 1","pages":"201-226"},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46325241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Misuse of Contactless Payment Cards with Radio-Frequency Identification","authors":"L. Klimek","doi":"10.5817/MUJLT2020-2-5","DOIUrl":"https://doi.org/10.5817/MUJLT2020-2-5","url":null,"abstract":"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.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41323056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 30 January 2019 the Council of Europe adopted guidelines on electronic evidence in civil and administrative law accompanied by the Explanatory Memorandum. The authors summarize and analyse this soft law instrument with respect to intellectual property (hereinafter “IP”) disputes. They explain why its creation is important for the proper administration of justice and how it addresses and reflects technological developments, new business models and evolving case-law. Several conclusions have been identified regarding how use of the Guidelines will address current practical problems for courts in IP disputes. Both authors took active part in the preparatory works and believe it is in the interest of justice and effective IP protection that these guidelines are publicly available in the member states and widely disseminated among professionals dealing with electronic evidence.
{"title":"Electronic Evidence in Intellectual Property Disputes under the Council of Europe’s Guidelines","authors":"Marek Świerczyński, Remigijus Jokubauskas","doi":"10.5817/MUJLT2020-2-7","DOIUrl":"https://doi.org/10.5817/MUJLT2020-2-7","url":null,"abstract":"On 30 January 2019 the Council of Europe adopted guidelines on electronic evidence in civil and administrative law accompanied by the Explanatory Memorandum. The authors summarize and analyse this soft law instrument with respect to intellectual property (hereinafter “IP”) disputes. They explain why its creation is important for the proper administration of justice and how it addresses and reflects technological developments, new business models and evolving case-law. Several conclusions have been identified regarding how use of the Guidelines will address current practical problems for courts in IP disputes. Both authors took active part in the preparatory works and believe it is in the interest of justice and effective IP protection that these guidelines are publicly available in the member states and widely disseminated among professionals dealing with electronic evidence.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":"14 1","pages":"303-320"},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42232395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Hober, K. (2020) The Energy Charter Treaty: A Commentary. Oxford: Oxford University Press, 688 p.
霍伯，K.(2020)能源宪章条约:述评。牛津:牛津大学出版社，688页。
{"title":"The Energy Charter Treaty: A Commentary. Hobér, K.","authors":"M. Švec","doi":"10.5817/MUJLT2020-2-8","DOIUrl":"https://doi.org/10.5817/MUJLT2020-2-8","url":null,"abstract":"Hober, K. (2020) The Energy Charter Treaty: A Commentary. Oxford: Oxford University Press, 688 p.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":"14 1","pages":"321-328"},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45481962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The authors examine the problem of the law applicable to liability for damages due to traffic accidents involving autonomous vehicles. Existing conflict-of-laws regulation adopted in the Rome II Regulation and both Hague Conventions of 1971 and 1973 is criticized. Upon examination of these legal instruments, it becomes clear that existing regulation is very complex and complicated. In effect authors recommend revisions to the legal framework. Proposed solutions are balanced and take into consideration both the interests of the injured persons, as well the persons claimed to be liable. New approach allows for more individual consideration of specific cases and direct to better outcome of the disputes. The findings may be useful in handling the cases related to use of algorithms of artificial intelligence in private international law.
{"title":"Law Applicable to Liability for Damages due to Traffic Accidents Involving Autonomous Vehicles","authors":"Marek Świerczyński, Łukasz Żarnowiec","doi":"10.5817/MUJLT2020-2-2","DOIUrl":"https://doi.org/10.5817/MUJLT2020-2-2","url":null,"abstract":"The authors examine the problem of the law applicable to liability for damages due to traffic accidents involving autonomous vehicles. Existing conflict-of-laws regulation adopted in the Rome II Regulation and both Hague Conventions of 1971 and 1973 is criticized. Upon examination of these legal instruments, it becomes clear that existing regulation is very complex and complicated. In effect authors recommend revisions to the legal framework. Proposed solutions are balanced and take into consideration both the interests of the injured persons, as well the persons claimed to be liable. New approach allows for more individual consideration of specific cases and direct to better outcome of the disputes. The findings may be useful in handling the cases related to use of algorithms of artificial intelligence in private international law.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":"14 1","pages":"177-200"},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46089587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Robert Müller-Török, Domenica Bagnato, Alexander Prosser
The Corona pandemic has created a push towards digitization in a number of fields, not least in the public sector including democratic processes. This of course includes an increased interest in e-voting via the Internet. The Council of Europe has a long-standing history of work in the field including two Recommendations – (2004)11 and (2017)5 – which have become the de facto yardstick against which every e-voting system is measured. Rec(2017)5 builds on a decade of experience with e-voting and particularly strengthens two concepts important in any electronic voting system: Voting secrecy and auditability/verifiability. This has distinct implications for the design of e-voting protocols. The aim of this paper is to analyse the impact on what arguably are the most popular voting protocol families, envelope and token protocols. How does the modified Recommendation impact on the viability of protocols and protocol design? The paper first presents the Council of Europe Recommendation and the technical issues it addresses. Then a model is introduced to assess a voting protocol against the Recommendation; a typical envelope and a token protocol are assessed in view of the model and finally the two assessments are compared including policy recommendations for a path to e-voting implementation.
{"title":"Council of Europe Recommendation CM/Rec(2017)5 and e-Voting Protocol Design","authors":"Robert Müller-Török, Domenica Bagnato, Alexander Prosser","doi":"10.5817/MUJLT2020-2-6","DOIUrl":"https://doi.org/10.5817/MUJLT2020-2-6","url":null,"abstract":"The Corona pandemic has created a push towards digitization in a number of fields, not least in the public sector including democratic processes. This of course includes an increased interest in e-voting via the Internet. The Council of Europe has a long-standing history of work in the field including two Recommendations – (2004)11 and (2017)5 – which have become the de facto yardstick against which every e-voting system is measured. Rec(2017)5 builds on a decade of experience with e-voting and particularly strengthens two concepts important in any electronic voting system: Voting secrecy and auditability/verifiability. This has distinct implications for the design of e-voting protocols. The aim of this paper is to analyse the impact on what arguably are the most popular voting protocol families, envelope and token protocols. How does the modified Recommendation impact on the viability of protocols and protocol design? The paper first presents the Council of Europe Recommendation and the technical issues it addresses. Then a model is introduced to assess a voting protocol against the Recommendation; a typical envelope and a token protocol are assessed in view of the model and finally the two assessments are compared including policy recommendations for a path to e-voting implementation.","PeriodicalId":38294,"journal":{"name":"Masaryk University Journal of Law and Technology","volume":"14 1","pages":"275-302"},"PeriodicalIF":0.0,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45075232","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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