We present here an interview published in december 2015 on the CINECA Consortium Magazine.
Do the legal principles covering the Net derive from general legal principles of from made-to-measure laws?
The general legal principles are always the same, of course. There would be no sense in trying to find a made-to-measure solution and a made-to-measure law for each specific problem, without due consideration for the overlying framework. It’s not always true, therefore, that, in order to regulate new technologies, new laws have to be made.
We need to get away, too, from the common idea that technology runs ahead while the law limps along behind. The reality is quite different. Take the laws on electronic signatures, for example. In Italy, the law arrived ahead of technology and even ahead of the need.
The principle has recently been affirmed according to which the law should be technologically neutral. On the basis of this principle, the legislator should not condition the market by favouring one technology over another, nor should he condition the development of technology. This approach is “functional” in the sense that it regulates, not the object, but the function. We must avoid constraining any specific form of technological or commercial development. Rather, we need to set out general principles that will remain unvaried for a certain period of time, and will not be constrained by changing technologies.
Apart from the electronic signature, another emblematic case is that of laws for the protection of consumers over remote sales contracts. What is involved, clearly, is a way of selling, not a specific technology. As far as the law is concerned, therefore, it is not important to make a distinction between purchases made using, for example, an App, or those made through a traditional website.
Speaking of users’ rights, the privacy and copyright laws are well known, but people are also invoking the right to be forgotten. What is this about?
The right to be forgotten is not a right in itself but it is nevertheless a restatement of other rights that are recognized by the law. Traditionally, the right to be forgotten describes a person’s right not to have republished information, even if it was legitimately published at the time, relating to events that happened a considerable length of time ago.
In Internet, obviously, the time involved is not that between publication and republication of the information, but the time that has lapsed since the item was published. The time factor regards, not just news items, but events which took place a long time ago, though for which this fact is not evident because no time context is given. In these cases, jurisprudence has suggested there may be an infringement of an individual’s right to his or her personal identity.
The problem is to ensure that the proper weight is given to the information, in order to avoid the person’s identity being distorted by the Net. As we saw from a decision by the Supreme Court, no. 5525 of 5 April 2012, this goal can be achieved by placing the information in context. It is not a right to be forgotten, then, but a right to a proper context.
The underlying theme, but one that emerges strongly, is that of the protection of an individual’s identity, in all its multiple forms.
What is at issue, then, is not the question of a specific news item about a specific individual and a specific event that can be retrieved through Google, but the protection of a person’s identity in the Internet, which is often perceived as a sole archive. It is not a sole archive, but it is a major source of information and sometimes the only one accessible.
“The Law in the Net”, but also “The Net in the Law”: how has Internet affected or modified the principles of “Jus Commune”?
Generally speaking, the principles of “Jus Commune” remain as before, but it cannot be denied that the advent of new technologies has brought fresh challenges for legal scholars.
What we have said about the right to be forgotten is a good example. In the real, physical world, the key element of this is the concept of “republication”. With Internet, on the other hand, the issue is the time the information stays available. Here it is not a question of drawing public attention back to a past event. The point is that, potentially, the past event has always remained there. So in this case the need that the law has to satisfy is a different one. It is no longer a question of republishing or not, it is a question of how a publication, that was maybe made quite legitimately many years earlier, is to be presented now.
A Net without borders: how have international regulations been affected by Internet?
The same general considerations apply. It is clear that the advent of Internet has drawn international attention to the need to regulate certain situations. I am thinking first of all of regulations aimed at encouraging the use of Internet as a trading tool and, as a consequence, the regulations set up for the protection of consumers.
A separate chapter belongs to the international conventions created to facilitate cooperation between the forces of law and order in relation to crimes committed via computer systems. I am thinking, for example, of the Budapest Convention of the European Council of 23 November 2001 on cybercrime.
Which judge has jurisdiction over disputes in Internet?
It depends on the nature of the dispute. The same procedural rules apply as in the real, physical world. The problem with internet is that the proper jurisdiction is not always easy to identify.
You are a teacher at Bologna University. How, in your opinion, has Internet revolutionized the world of the university? Is it simply a question of having new tools available for the administration and for the students, or is there more to it than that? Has there been a change of mentality, for example?
There are pros and cons to using Internet, in the university world like any other. Clearly, immediate access to a wider range of information has speeded up research processes. There is wider access to study texts. But it has to be said that the information stored on the Internet is disorderly. All the information on the net appears at the same level. From an academic point of view, research via the Internet poses problems for students, who are not always able to assess the reliability of the sources they are consulting. Consultation of texts in the library, on the other hand, allows more control over the information. It makes it easier to distinguish between original and secondary sources.
Turning now to the changes that Internet has brought to administrative aspects, we have to remember that publicity, that is to say the means of spreading awareness of information, is not the same on and off the net. On the Internet, anyone can access it without limits, unless restrictions to access have been expressly placed – reserved areas, passwords and so on. There are also no temporal limits. So publication online and publication offline are, legally, two very different things. Bologna University has adopted an innovative regulation on the publication of its official acts. The time of publication is limited to three years, and the regulations also cover the means of access and the essential nature of the content that is to be published. Transparency doesn’t mean publishing everything on Internet. Let’s remember that it’s a storehouse, not a structured archive of knowledge.
You were among the first in Italy to deal with these questions. Today you are a leading international expert, with major appointments and awards. What attracted you in the first place, and how would you sum up this experience today?
I must say that, from my professional viewpoint, I always prefer not to draw up a balance of what has been done. I prefer to look ahead to the things I still have to do. I always hope to make further improvements. I can certainly say that I am satisfied with having chosen to study a branch of law that is a continual source of new stimuli.
In the first place, I was pushed by curiosity for a new aspect of law. I was also fired by a passion for technical innovation. I therefore discovered, in my specialized field, a fascinating aspect of the legal profession: creativity in law. I believe, therefore, that I have been very lucky, not least because I have always found motivation and interest for my work. Nevertheless, however satisfied I may be, I am very much aware that a lot of new challenges lie ahead.
The Italian law no. 27 of 24th March 2012, on “Conversion with amendments of Decree-Law no. 1 of 24th January 2012, concerning urgent measures on competition, infrastructure development and competitiveness known as “ The Liberalization Decree” or ” The Salva-Italia Decree” was published in Ordinary Supplement no. 53 of Official Gazette no. 71 of March 24th, 2012.
The text of the conversion law which was finally approved by the Chamber of Deputies on March 22nd contains, among other things, significant innovations for freelance professionals.
There was confirmation of the abrogation of the fee rates for those professions which are regulated in professional associations, while a new measure provides for fixing compensation in the event of liquidation by a court with reference to the parameters established by the Minister (Art. 9, paragraph 2). The above parameters must be established within 120 days of the date of the law converting the decree coming into effect. By decree of the Minister of Justice, in agreement with the Minister of Economy and Finance, the parameters for costs and contributions to professional pension funds and archives based on previous fee rates will also be fixed within the same time scale. In addition it is explicitly the aim of the decree to provide long term safeguards for the financial stability of the professional pension funds.
All fees for professional services are to be agreed at the time of the appointment in the terms set out by the single associations. The professional must make known to the client the level of difficulty of the assignment and provide all relevant information regarding any possible additional costs which may arise over the course of the entire assignment; in addition the professional must also make known to the client the information concerning the insurance policy which covers eventual damages caused in the course of professional activity (paragraph 4). The professional is also required to present the client with an approximate estimate in which the cost of each item, including expenses, taxes and contributions must be stated. During the modifications carried out during the process of conversion into law the prediction provision according to which failure to comply with the regulations constitutes a violation of the rules of discipline on the part of the professional was deleted from paragraph 4.
We offer here an article by Giusella Finocchiaro which was published in the March issue of the newsletter of the online magazine “ICT4Executive”.
The conservation of electronic documents raises a number of doubts among professionals in terms of procedure and related legal issues. Here we will try to clarify the main features of the topic by means of specific questions and answers.
What are the main rules regarding the conservation of electronic documents in Italy?
The Digital Administration Code, recently amended by Legislative Decree no.235 of December 30, 2010, regulates the composition, management and conservation of electronic documents. With particular regard to conservation, the primary law reference is art. 43, which establishes the general principle of freedom of the form of conservation of electronic documents, establishing that ” when stored in digital form, records kept in archives, accounting records, correspondence, and any act, document or data, the conservation of which is required by law or regulation, are valid and relevant with full legal effect if their reproduction and conservation over time are managed so as to guarantee they conform to the original documents in compliance with the technical regulations provided for by Article 71”. Naturally, if the documents have originally been produced in a digital format, it follows that the logical form of conservation for said documents must be digital. Therefore, the process of electronic storage of documents can affect both electronic and analogical documents.
How does the process of conservation work?
The procedure is carried out by storing on optical media the document itself in the case of electronic documents, or its image in the case of analogical documents. The process is completed by affixing, the time reference and the digital signature of the data custodian on the set of documents, which guarantees the proper conduct of the process. The requirements of the system of conservation are set out in art. 44 of the Digital Administration Code: in particular, there must be reliable identification of both the individual who composed the document and also that of the reference administration or organization. The integrity and legibility of the document and the availability of information to identify it must also be guaranteed. In the light of these regulations we can affirm that in invoking the principle of freedom of the forms of conservation, the law grants a broad area of autonomy. It is in fact up to the interested parties to fully establish the procedures of conservation.
What are the main new regulations regarding conservation?
Among the main new features introduced in the Legislative Decree of December 30, 2010, particular importance must be given to the provision under Art. 44 bis of the Digital Administration Code. The regulation provides for entrusting the activity of conservation and certification to public and private bodies, who may also seek accreditation from DigitPA. Also worthy of note is the provision under Art. 44, paragraph 1 bis, according to which the data custodian works in consultation with the data controller.
Does the conservation of documents raise questions relating to personal data protection laws?
It is necessary to fit the data custodian into the context of the protection of personal data. In fact, we should ask ourselves whether the data custodian has independent control over the process or whether he is merely responsible for the process. This is a question of no little importance considering the fact that the process of conservation can be entrusted to a third party with an outsourcing contract.
So what should the right approach to this issue be?
It should be as open an approach as possible, considering that the law places fewer restrictions than is thought. In fact, the law provides the tools, but does not place restrictions on the freedom of the interested parties to define procedures. So, plenty of scope for autonomy of negotiation.
An email is an electronic document with an electronic signature, since the username and password are included in the definition of an electronic signature according to art. 1 lett.q of the Italian Digital Administration Code.
This is what the Court of Prato correctly states in its decision of 15th April 2011, which has been recently published.
Thus, the evidential value of an email is freely assessable in court, given its objective characteristics of quality, safety, integrity and unchangeability.
In the case in question, the judge ruled that an email did not qualify as evidence.
The ruling focused on the legal status of this type of document when evaluating the evidential relevance of an email produced in proceedings in opposition to an injunction as a demonstration of a promptly expressed complaint regarding defects encountered in a piece of machinery.
According to the Court of Prato, the email sent without the presence of a mechanism of certification does not provide positive identification of the sender and does not prove the message was received by the recipient.
However, there is no doubt that an email can be classified as a document with an electronic signature “as the username and password used to access the mailbox are included in the collection of data utilized as methods of identifying information under ‘Art. 1, Lett. q) of the Italian Digital Administration Code”-
Consequently, the evidential value of the email in question is freely assessable in formulating the ruling also in consideration of the further procedural findings, firstly the failure to refuse to accept and to promptly contest the facts therein represented.
In the case under examination the recipient had from the outset refused to accept the circumstances asserted by the email in question and in the absence of further suitable evidence to confirm its content, this led to a negative appraisal in terms of evidence. The opponent’s claims were therefore rejected.
The decision is nevertheless of great importance as it reaffirms that emails are documents complete with an electronic signature.
Several Professional Associations have recently launched a formal protest against Groupon, the commercial offers site which is becoming more and more popular in Italy and abroad.
The first complaints came in November from the Medical Association of the province of Bologna when its President Giancarlo Pizza called on all members of the association to have nothing to do with the site. It would appear that offering medical services at knockdown prices is a violation of the Code of Conduct of the medical profession. Those doctors who persist run the risk of facing disciplinary proceedings.
Other Professional Associations soon added their protests to that of the doctors. The Bar Association is in the process of analyzing a number of offers from law consultancy firms which have recently appeared on Groupon, in order to discover whether any of their members are involved. Andrea Mascherin, secretary of the National Bar Council expressed his alarm in an interview with the Italian newspaper Il Fatto Quotidiano: “From a cultural point of view it is extremely risky to pass off the idea that fundamental rights such as health and legal defense can be treated in the same way as pots and pans and mattresses “
Both the Architects Association and the Engineers Association have joined in the chorus of protest in stressing that the race to lower prices may very well correspond to a general lowering of the quality of work done by professionals.
In response to these statements, Groupon’s lawyer has argued that the current Italian legal system also allows doctors to make promotional offers and has stated to the press that “The rules of the Association’s Code of Conduct have lower status than the national rules.”
It is for this reason that Groupon, which makes no secret of the fact that it has identified health coupons as the main attraction for users, decided to file a report with the Antitrust Body against those provincial Medical Associations that bar their members from proposing commercial offers on the site.
The appropriate Court for the investigation of cases of libel must be that in which those cases of libel are received. Therefore registering an Italian website abroad does not protect website owners from being sued for libel.
This is what has been established by a recent ruling of (the first section of) the Supreme Court, which had been asked to rule on a conflict of territorial competence between two courts, both of which were involved in the same proceedings against a website administrator charged with libel regarding the content of an article published on his website.
This dual procedure was the result of action taken by the Italian Judiciary Police who – on receiving the request from the plaintiff to prosecute for libel – sent the relative documents both to the Public Prosecutor’s Office in Sassari, the city where the defendant resides, and to the Public Prosecutor’s Office in Arezzo, where the website servers reside.
The Supreme Court judge ruled that the Sassari Court was that authorized to proceed. In fact, territorial competence related to telematic libel cases is not to be assigned to the place where the information is put on the net but rather it is to be assigned to the place where “offence and denigration is received by a number of net users”.
Clearly, a website is by its very nature intended to be used simultaneously by a large number of individuals residing in many different places. Therefore it is impossible to use objective criteria – such as the place of access of the first visitor to the website – in order to assign territorial competence.
Thus, given that it is impossible to determine the location where the act of libel is perceived, competence is assigned to the Court of the location where the defendant resides, as provided for by art. 9, paragraph 2 of the Italian Criminal Code.
The Supreme Court ruling is worthy of consideration in that it sheds light, at least regarding libel, on the question of juridical territorial competence on the net, which is a particularly delicate aspect of Internet law on the international scene.
Ministry of Justice Decree no 44 of 2011, which governs the new telematic trial in Italy was recently published in “Official Journal” No 89 of April 18, 2011.
The regulation replaces the technical rules adopted with the Presidential Decree of February 13, 2001, No 123 and with the Decree of the Minister of Justice of July 17, 2008. The new regulation comes into force on May 18.
The new telematic trial is focused on the use of certified electronic mail, which is governed by the Code of digital administration. The system allows certified email: it means that the user can get a receipt of the dispatch and receipt of receipt.
The certified email addresses of users must be available through the electronic portal and the general register of electronic addresses. An essential role is also attributed to the electronic file in which all acts of the trial will be stored in digital format.
Much is left to forthcoming technical specifications.
The new trial involves organizational and technological burdens for the courts, but also for lawyers, who must adapt their professional and technological equipment, as well as their working practice. It is enough to consider digital archiving to which the dm does not devote particular attention, but which in itself implies organizational and technological changes.