Herbert Burkert, Internetrecht – Informationsrecht, in: Rainer J. Schweizer/Herbert Burkert/Urs Gasser (eds.), Festschrift für Jean Nicolas Druey, pp. 693–714 (Zurich/Basel/Geneva 2002).
Burkert – Internetrecht_Informationsrecht
Background
The text of Herbert Burkert was written for the commemorative volume published in 2002 in honour of Jean Nicolas Druey. As mentioned (cf. Druey, 2.1), Jean Nicolas Druey was a pioneer in the development of the information law discipline in Switzerland and is co-founder, together with Herbert Burkert and Urs Gasser, of the Research Center for Information Law at the University of St. Gallen; Burkert still continues to serve as the president of the board of this research centre. Burkert also taught at the University of St. Gallen and cooperated with Druey in several research projects. He contributed a masterpiece on information and Internet law in honour of his older colleague and friend (cf. Burkert, 2.2).
Herbert Burkert has become known as a scholar tackling theoretical and philosophical questions in the field of information law. His contribution, called «information law», is part of the fourth and most important category in the commemorative volume for Druey, which encompasses 17 articles. The more practical approach, which is usually taken by the «Internet law», is liaised by Burkert with the structural designs of information law.
Herbert Burkert acted as chairman of the Legal Advisory Board to the European Commission’s DG «Information Society», where he convened in the late 1990s and early 2000 a group of independent legal experts to look at the interplay between law and information society and explore regulatory issues at the transition point between old and new media.
Summary
In his contribution, Herbert Burkert starts with looking at topics that are discussed under the heading of «Internet law»; for example, Open EDI, e-commerce, computer law, etc. Thereafter Burkert discusses the regulatory developments between 1995 and 2001 as being caused by the increasing importance of the Internet mainly in the business world. The mentioned regulatory systems from the European Union – more than ten directives – are addressed. Thereby, Burkert concludes that the legislator is usually relatively reluctant to deal with new technological phenomena; however, as soon as the first stones are rolling, new normative actions follow. According to Burkert, many regulations concern criminal law; otherwise, amendments to existing regulations prevail. The new legislation is not assessed as being very innovative.
In the second chapter Burkert addresses changes in the law that are caused by the new relations between the Internet and the factors of time and place. In connection with the time factor, Burkert refers to the «sunset clauses» that do not seem to be often applied. As far as the geographical position is concerned, the Internet causes additional problems with respect to determining the applicable law and the jurisdiction. More emphasis is put on new issues related to the actors and forms of activities: The Internet obviously improves the flexibility of organisations and the constitution of epistemic communities allows new models of cooperation. In respect to the forms of governmental interventions, Burkert discusses the co-regulation and hybrid regulation as theoretical models. The variety of forms causes questions about the legitimacy of the actors and can increase the cost of regulation.
Of particular interest is the sub-chapter on «movements». Burkert analyses the perception of technology by the law being of importance in connection with software, architecture and codes. In principle, regulation should be technology neutral, but this assessment is a myth rather than reality. The Internet law also forces the scope of the different disciplines to be rethought within the legal science; the borders are becoming more unclear and force lawyers to interdisciplinary assessments. Finally, Burkert discusses the symbols as designs of information and communication in the area of digitalisation.
The last chapter of the contribution tries to link the theoretical structure of information law, as developed by Jean Nicolas Druey, to the new developments in Internet law, especially with regard to a subjective right to information or to an analytical assessment of information flow. As an example, Burkert discusses the model of consumer information law which should be designed within a general informational legal framework. Based on this analysis, specific requirements with respect to normative provisions that are to be included in this kind of law are phrased.
In a nutshell, Burkert shows in his contribution that legislative projects in the field of Internet law should not only reflect the applicable technologies, but also be embedded into a structural framework designed by the main information law principles.