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Legal Issues in the Digital Age最新文献

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Intermediary Liability 中介责任
Pub Date : 2021-05-04 DOI: 10.17323/2713-2749.2021.1.169.178
Ruslan Nurullaev
Book review: Giancarlo Frosio (Ed.). Oxford Handbook of Online Intermediary Liability. Oxford: OUP, 2020, 800 p.
书评:詹卡洛·弗罗西奥(主编)。牛津在线中介责任手册。牛津:牛津大学出版社,2020,800页。
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引用次数: 0
Blockchain, Smart Contracts and Intellectual Property. Using distributed ledger technology to protect, license and enforce intellectual property rights 区块链、智能合约和知识产权。使用分布式账本技术来保护、许可和执行知识产权
Pub Date : 2021-05-04 DOI: 10.17323/2713-2749.2021.1.17.41
Ronny Hauck
For several years, almost everyone has been talking about blockchain. The underlying distributed ledger technology has become (in)famous as the technology behind cryptocurrencies such as Bitcoin and Ether. But what about blockchain and intellectual property like patents and copyright? Could this technology be used for the protection and enforcement of such rights? Which role can smart contracts play in this regard? This article focuses on questions concerning the requirements for provingthe protection of technical inventions as well as on the administration and exploitation of intellectual property rights. The latter could play an important rolefor intellectual property, which has not been registered or is not subject to registration, such as copyright. For trade secrets, a blockchain could be a useful tool for providing appropriate confidentiality measures. Last but not least, smart contracts in particular could be involved in connection with the transfer and, even more importantly, the licensing of intellectual property and mainly of software.
几年来,几乎每个人都在谈论区块链。底层的分布式账本技术已经成为比特币和以太币等加密货币背后的技术而闻名。但是区块链和知识产权,比如专利和版权呢?这项技术能否用于保护和执行这些权利?在这方面,智能合约可以发挥什么作用?本文主要就技术发明保护的证明条件、知识产权的管理与运用等问题进行了探讨。后者可以在知识产权方面发挥重要作用,如版权等尚未登记或无须登记的知识产权。对于商业秘密,区块链可以成为提供适当保密措施的有用工具。最后但并非最不重要的是,智能合约尤其可能涉及到与转让有关的问题,甚至更重要的是,涉及到知识产权(主要是软件)的许可问题。
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引用次数: 1
The Right to Access to Privacy of Correspondence and Russian Judicial Practice 通信隐私权与俄罗斯司法实践
Pub Date : 2021-05-04 DOI: 10.17323/2713-2749.2021.1.160.168
Anzhelika N. Izotova
Analysis of ways of limiting secrecy of correspondence in Russian judicial practice
俄罗斯司法实践中限制通信保密的途径分析
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引用次数: 0
Electronic interaction and digital technologies in corporate governance of a joint stock company in Russia 俄罗斯一家股份公司治理中的电子互动和数字技术
Pub Date : 2021-05-04 DOI: 10.17323/2713-2749.2021.1.65.99
A. Gabov
The article is devoted to key issues in the development of legal regulation of electronic forms of interaction between participants in corporate relations in Russia. The author consistently examines the development of legislation and the practice of its application since the mid-1990 s. until now. The impact of the emergency legislation created to counter the spread of coronavirus infection in 2020 is separately considered. The author analyzes in detail the materials of the Bank of Russia, various political attitudes. For the first time in special literature, the correlation of the development of electronic forms of interaction in private and public relations is shown. The main current legislative initiatives are considered. The purpose of the study is to formulate the main directions of the development of legal regulation, based on the analysis of the experience of the development of legislation, including regulating public relations. To implement this, the first part of the study (introduction) shows the traditional approach to corporate actions, evaluates its pros and cons; then the second part of the study shows the first attempts in the 2000 s. include elements of electronic interaction in regulations; then (in the third part) a radical change in the legislator’s approaches to regulation in 2010 is shown, estimates are given of the state of regulation for the period from late 2019 to early 2020 (before the start of the coronavirus pandemic); in the fourth part of the assessment of current draft laws, as well as the author’s proposals in terms of directions of regulation are formulated. Based on the results of the work done, the main conclusion was made about the need to expand the use of electronic forms of interaction for all legal entities, as well as the correlation of private law and public law regulation.
本文致力于俄罗斯企业关系参与者之间电子形式互动的法律监管发展中的关键问题。作者对自20世纪90年代中期至今的立法发展及其适用实践进行了持续的考察。为应对2020年冠状病毒感染的传播而制定的紧急立法的影响是单独考虑的。作者详细分析了俄罗斯银行的材料、各种政治态度。在特殊文献中,第一次显示了私人关系和公共关系中电子形式互动发展的相关性。审议了当前主要的立法举措。研究的目的是在分析包括公共关系规制在内的立法发展经验的基础上,制定法律规制发展的主要方向。为了实现这一点,研究的第一部分(引言)展示了传统的企业行为方法,评估其优点和缺点;然后,研究的第二部分显示了2000年代的第一次尝试,包括法规中的电子交互元素;然后(在第三部分)显示了立法者在2010年监管方法的根本变化,给出了2019年底至2020年初(冠状病毒大流行开始之前)期间监管状况的估计;第四部分是对现行法律草案的评估,以及笔者在规制方向方面的建议。根据所做工作的结果,得出的主要结论是需要扩大对所有法律实体使用电子形式的互动,以及私法和公法规定的相互关系。
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引用次数: 0
Fake News: Legislation and Judicial Practice 假新闻:立法与司法实践
Pub Date : 2020-12-17 DOI: 10.17323/2713-2749.2020.3.140.147
L. Tereschenko
The article examines relations new to Russian practice regarding the introduction of the concept of “fake news” into the legal field, dissemination of fake news and the problems of legal enforcement of the indicated norms, including administrative and criminal liability.
本文探讨了在将“假新闻”概念引入法律领域、假新闻的传播以及所指示规范的法律执行问题(包括行政和刑事责任)方面,俄罗斯实践中的新关系。
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引用次数: 1
The Phenomenon of the Algorithm and Its Impact on the EU Legal System: an Attempt at a Multidisciplinary Approach 算法现象及其对欧盟法律制度的影响:多学科研究的尝试
Pub Date : 2020-12-17 DOI: 10.17323/2713-2749.2020.3.3.34
Stefano Dorigo, E. M. Lombardi, Erik Longo
We are experiencing a digital revolution that is changing the very nature of law. Digital code becomes a form of regulation through which private actors link their values to technological artifacts that prove capable of conditioning their operations both on a material and moral level. But technological artifacts appear to be non-neutral means, reflecting choices of different nature, among which those of a political nature stand out. The more the regulatory provisions are implemented through the use of technologies, the more the codes acquire the status of a regulatory technique, which can be used both to define and incorporate regulatory and contractual provisions into codes both to implement them. The impact of the algorithm is of crystal clear relevance not only in regulation but also in the other side of the coin: surveillance. Each new option brought by the development of technology brings new possibilitiesand changes the way humans relate to each other. All these beautiful technological devices that few of us are willing to abandon produce a positive enhancement of the human and new kind of addiction, but also a new slavery”. The algorithmic revolution spills over to society andpublic systems designed to ensure its well-being. So, fiscal consequences of the algorithmic revolution risk, if not governed, to call into question the very foundation of the social pact, to which the fiscal duty is connected as a manifestation of solidarity within an organized community, not only within the borders of the individual State but also in a wider sphere. Legal scholars can face the newest challenges of the present without fear and without nostalgia.But to this purpose he must remove all obstacles to the necessary dialogue between jurists of different backgrounds, between jurists and non-jurists, between jurists and society.
我们正在经历一场数字革命,它正在改变法律的本质。数字代码成为一种监管形式,通过它,私人行为者将他们的价值观与技术产物联系起来,这些技术产物被证明能够在物质和道德层面上调节他们的操作。但技术人工制品似乎是非中立的手段,反映了不同性质的选择,其中政治性质的选择尤为突出。通过使用技术实施的监管条款越多,守则就越能获得监管技术的地位,既可以用来定义监管条款,也可以将监管条款和合同条款纳入执行这些条款的守则。该算法的影响不仅在监管方面,而且在硬币的另一面:监控方面,都具有非常明显的相关性。技术发展带来的每一个新选择都带来了新的可能性,并改变了人与人之间的关系。我们中很少有人愿意放弃的所有这些美丽的技术设备,对人类和一种新的成瘾产生了积极的增强,但也是一种新的奴役。”算法革命蔓延到旨在确保其福祉的社会和公共系统。因此,如果不加以治理,算法革命的财政后果可能会使社会契约的基础受到质疑,而财政义务是作为有组织的社区内团结的表现而联系在一起的,不仅在个别国家的边界内,而且在更广泛的范围内。法律学者可以毫无畏惧、毫无留恋地面对当前的最新挑战。但是,为了达到这个目的,他必须消除一切障碍,以便在不同背景的法学家之间、法学家与非法学家之间、法学家与社会之间进行必要的对话。
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引用次数: 0
Internet Freedom of Speech and Privacy Protection: Is There a Contradiction? (A Study of Rating Sites) 互联网言论自由与隐私保护:是否存在矛盾?(评级网站研究)
Pub Date : 2020-12-17 DOI: 10.17323/2713-2749.2020.3.125.139
E. Ostanina
While the Internet promotes widespread communication, this communication is often anonymous. How to draw the line between freedom of speech and privacy? The specifics of protecting privacy and business reputation against violation by rating sites are discussed in this article. Do the activities of rating sites need special legal regulation? The author believes that the general rules on privacy and freedom of speech are sufficient for regulating these new relations. The respective court practice of Germany, the UK and the USA is analysed. The tentative conclusion is that rating sites do not contradict the law if they do not disseminate information about the private lives of people or encourage rude and scornful assessments. The problem of using personal data is examined. The author holds the view that the activities of rating sites can be beneficial for society and therefore should not be banned entirely. However, site owners should be allowed to use personal data only upon the consent of the owners of the latter.
虽然互联网促进了广泛的交流,但这种交流往往是匿名的。如何在言论自由和隐私之间划清界限?本文讨论了保护隐私和商业声誉免受评级网站侵犯的具体问题。评级网站的活动需要特别的法律规范吗?作者认为,隐私权和言论自由的一般规则足以规范这些新的关系。分析了德国、英国和美国各自的法院实践。初步的结论是,如果评级网站不传播有关人们私生活的信息或鼓励粗鲁和轻蔑的评价,它们就不违反法律。探讨使用个人资料的问题。作者认为,评级网站的活动可以对社会有益,因此不应该完全禁止。然而,网站拥有人只有在征得网站拥有人同意的情况下,才可使用个人资料。
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引用次数: 0
2020 Post-Crisis Development and 2021 Trends in Russia and Europe: Fintech and Digital Assets Regulation 2020年危机后俄罗斯和欧洲的发展和2021年趋势:金融科技和数字资产监管
Pub Date : 2020-12-17 DOI: 10.17323/2713-2749.2020.3.35.58
Maria A. Agranovskaya, David E. Kitsmarishvili
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引用次数: 1
The Role of Artificial Intelligence in Improving Criminal Justice System: Indian Perspective 人工智能在改善刑事司法系统中的作用:印度视角
Pub Date : 2020-12-17 DOI: 10.17323/2713-2749.2020.3.78.96
Puneet Gawali, Reeta Sony
The increasing cyber-attacks have created havoc in the criminal justice system. Understanding the purpose of crime and countering it is the crucial task for the law enforcement agencies. This research aims to present how Artificial Intelligence and Machine Learning along with Predictive Analysis using soft evidence can be used in sorting out the existing criminal record while making the use of metadata, and therefore predicting crime. Furthermore, it would surely help out the police and intelligence bodies to smartly investigate the cases by referring to the database and thus help the society in curbing the crime by quicker and more effective investigation processes. It would also assist the analyst in tracking the activities and associations of various criminal elements through their recent activities, by extracting the particular details from the documents or records. Prediction of the crime can be understood through this research. The present study reflects the accuracy level of threat from 28 states of India. By researching on this topic, it becomes evident that if proper data is fed to this model, the chances of prediction are higher and more accurate. The study also tried to find out the psychosocial perspectives of the crime and what would be the reason of individual indulges in such crime. Abstract The emergence of the social media and its virtual communication space has enabled people at large to interact and communicate from the conventional mode of one-to-one to many-to-many. It exploded onto the technology in the last decades for commercial and entertainment purpose and rapidly it had become very much prevalent globally. Initiated as a friend-finder it went on to the extend encompassing every features of media where the users had a domi-nant role. When mass media and digital media was through certain modes, social media not only changed the mode but the creators and audience. From passive news listeners, it became active creators and sharers of contents in the form of information. With the enablement of technology, anybody with an internet access and own opinion can be part of social media. Under the guise of user-generated content, be it in sharing of news or opinion or images or videos and now even the live video promoting political, social, cultural aspects, social media do not hold any accountability because only users are producing contents. Also, being an intermediary, it is free from any liability for the user generated data under Indian Information Technology Act, 2008 and the existing global consensus under safe harbour doctrine. The law in this area is still relatively unsettled. The misuse of social media got reported with various incidents of such as impersonation, anonymity, profile account hacking, privacy threats, sexual or aggressive solicitation, cyber-bullying, and many such related serious issues. However, in all these matters, social media was provided with a benefit for its passive involve-ment of choosing the use
越来越多的网络攻击给刑事司法系统造成了严重破坏。了解犯罪的目的和打击犯罪是执法机构的重要任务。本研究旨在展示人工智能和机器学习以及利用软证据的预测分析如何在利用元数据的同时整理现有的犯罪记录,从而预测犯罪。此外,它肯定会帮助警察和情报机构通过参考数据库来聪明地调查案件,从而帮助社会通过更快和更有效的调查过程来遏制犯罪。它还将通过从文件或记录中提取具体细节,协助分析人员通过各种犯罪分子最近的活动来跟踪他们的活动和联系。通过本研究可以了解犯罪的预测。目前的研究反映了来自印度28个邦的威胁的准确程度。通过对这一课题的研究,很明显,如果向该模型提供适当的数据,预测的机会更高,更准确。研究还试图找出犯罪的社会心理角度,以及个人沉迷于这种犯罪的原因。社交媒体的出现及其虚拟的交流空间,使人们从传统的一对一的交流方式向多对多的交流方式转变。在过去的几十年里,为了商业和娱乐目的,它迅速发展成为一种技术,并迅速在全球范围内流行起来。最初作为一个交友工具,它扩展到包括媒体的每一个功能,在这些功能中,用户占据主导地位。当大众媒体和数字媒体通过某种模式时,社交媒体不仅改变了模式,也改变了创作者和受众。从被动的新闻听众,转变为信息形式内容的主动创造者和分享者。随着技术的发展,任何能上网并有自己观点的人都可以成为社交媒体的一部分。在用户生成内容的幌子下,无论是新闻或观点的分享,还是图片或视频的分享,甚至是现在宣传政治,社会,文化方面的直播视频,社交媒体都不承担任何责任,因为只有用户在生产内容。此外,作为一个中介,根据2008年印度信息技术法案和安全港原则下现有的全球共识,它对用户生成的数据不承担任何责任。这方面的法律还比较不确定。滥用社交媒体的报道有各种各样的事件,如冒充、匿名、个人资料账户黑客攻击、隐私威胁、性或攻击性招揽、网络欺凌等许多相关的严重问题。然而,在所有这些问题上,社交媒体提供了一个好处,因为它被动参与选择用户或发布的内容。责任总是在内容生产者身上。这是一定程度的尽职调查社交媒体平台需要观察,太非常少了!本文试图质疑社交媒体与传统媒体同等的现有特权,并强调它所带来的社会法律困境
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引用次数: 1
The Inadequacy of Current Remedies for Violation of Data Subjects’ Rights and How to Fix it 当前数据主体权利侵害救济的不足及补救方法
Pub Date : 2020-11-04 DOI: 10.17323/2713-2749.2020.2.24.62
A. Savelyev
The paper focuses on civil law remedies for violations of data subjects’ rights: claims for damages and claims for compensation of moral harm. Based on an analysis of academic literature, as well as of Russian and international case law, it is argued that, although these remedies are endorsed by the GDPR and other laws, they are inadequate and do not con-form to the requirements for an “effective remedy” stipulated by major international legal documents on human rights. The main reasons are: 1) difficulties in proving the fact and the amount of a legally recognized category of damage because the typical consequences of data privacy violations (e.g. the chilling effect caused by dataveillance, negative emotional reactions, etc.) are not considered legally significant by the courts; 2) inability to prove with a substantial degree of certainty a causal link between the violation and the damage incurred because such damage occurs remotely and within complex flows of data. This produces an imbalance in the enforcement of data protection laws so that public law remedies such as administrative fines predominate. This approach is not compatible with the goals of empowering the individual and ensuring control over usage of one’s data because there cannot be effective control without an effective remedy to enforce it. In practice this leads to under enforcement of data protection laws because under-resourced data protection authorities cannot address most of the violations that pertain to data protection. A new type of remedy that would resemble the statutory damages applicable to copyright infringement in some jurisdictions should be introduced. Its punitive and decentralized nature would become an additional incentive for data controllers to invest in compliance with data protection laws. From a long-term perspective, it may facilitate including individuals in management of their personal data, without which it would be impossible to effectively address the risks brought about by massive and ubiquitous data processing and algorithmic decision-making.
本文主要探讨了数据主体权利被侵犯的民事救济:损害赔偿请求和精神损害赔偿请求。通过对学术文献以及俄罗斯和国际判例法的分析,本文认为,尽管这些救济得到了GDPR和其他法律的认可,但它们是不充分的,不符合主要国际人权法律文件对“有效救济”的要求。主要原因是:1)难以证明事实和法律认可的损害类别的数量,因为违反数据隐私的典型后果(例如数据监视造成的寒蝉效应、负面情绪反应等)不被法院认为具有法律意义;2)无法以相当程度的确定性证明违规行为与所造成的损害之间的因果关系,因为这种损害发生在远程和复杂的数据流中。这就造成了数据保护法执行方面的不平衡,因此行政罚款等公法补救措施占主导地位。这种方法与授权个人和确保控制个人数据使用的目标不兼容,因为如果没有有效的补救措施来实施,就不可能有有效的控制。在实践中,这导致数据保护法执行不力,因为资源不足的数据保护当局无法处理与数据保护有关的大多数违规行为。应引入一种类似于某些司法管辖区适用于版权侵权的法定损害赔偿的新型补救办法。它的惩罚性和分散性将成为数据控制者投资遵守数据保护法的额外激励。从长远的角度来看,它可能有助于将个人纳入个人数据的管理中,否则就无法有效解决大规模和无处不在的数据处理和算法决策带来的风险。
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引用次数: 0
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Legal Issues in the Digital Age
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