Rolf H. Weber, Information und Schutz Privater, in: Zeitschrift für Schweizerisches Recht (ZSR), pp. 69–80 (1999).
Weber – Information und Schutz Privater
Background
The text is an extract from the report written for the Symposium of the Swiss Lawyers Association that was held on 24 and 25 September 1999 in Porrentruy. Weber has devoted a good portion of his research capacity, mainly during the past 15 years, to topics of information law and Internet law (cf. Weber, 1.3/2.1/4.2/4.4). Weber states that his text «Information und Schutz Privater» (translated: «Information and Protection of Individuals») is to be understood as a theoretical analysis of the informational issues related to the protection of the personality. Apart from Rolf H. Weber, the following speakers presented different topics in the area of information law:
- Ivan Cherpillod: «Information et protection des intérêts personnels» (translated: «Information and protection of personal interests») (pp. 87–197)
- Pascal Mahon: «L’information par les autorités» (translated: «Information given by the authorities») (pp. 199–352)
- Pierre Tschannen: «Amtliche Warnungen und Empfehlungen» (translated: «Official governmental warnings and recommendations») (pp. 353–455)
The quoted text is divided into 6 sections and contains about 80 pages. The relevant extract is the fifth chapter of Weber’s contribution and analyses the «Informationsverweigerung: Gefährdetes (nicht haltbares?) Réduit» (translated: «Refusal to Disclose Information: an Endangered (not Stable?) Hiding Place»). He describes different aspects of the refusal to disclose information and concludes with three theses.
Rolf H. Weber (born 1951) is a professor of civil, commercial and European law at the University of Zurich, Switzerland, and a visiting professor at the University of Hong Kong. His main fields of research are Internet and information technology law, competition law, international business law, international financial law and international trade law. Rolf H. Weber is co-founder of the Center for Information Technology, Society and Law (ITSL) at the University of Zurich. He also works as an attorney-at-law in Zurich.
Summary
The text begins with an assessment of the debate confronting the distribution of information with the exclusion of information. This conflict area is an essential point in the ongoing discussions regarding information law. Weber states that civil law, administrative law and criminal law have known secrecy rules for a long time. However, secrecy rules are vulnerable to hackers or traitors.
It is the function of law to coordinate and eliminate collisions of interest between information distribution and exclusion of information. The possibility to deal with information can lead to power. Therefore, a right to not inform can be an essential aspect for businesses as well as individuals. In this context, Weber replicates U.S. Judge Brandeis, who «discovered» and promotes more transparency and protection of data. Louis Brandeis was an American lawyer and associate jurist on the Supreme Court of the United States from 1916 to 1939. In 1914 Brandeis formulated the sentence «Sunlight is said to be the best of all disinfectants» in his famous book «Other People’s Money and how the Bankers use it». But Brandeis was also the co-author of the first famous article on privacy/data protection (Warren/Brandeis, The Right to Privacy, Harvard Law Review, Vol. 4, No. 5 (Dec. 15, 1890), pp. 193–220).
In a further section, Weber describes the concepts of secrecy protection. He underlines the weak legal situation regarding the right of personality. According to Weber, the so-called spheres theory based on article 28 of the Swiss Civil Code – which differs among the private sphere, the secret sphere and the public sphere – is not appropriate. A similar problematic can be seen in the terminology of «secret». Therefore, new allocation criteria need to be developed.
In addition, Weber describes the unclear meaning of the right of informational self-determination. This right of informational self-determination is a concretization of data protection rules. From a material point of view the control of information is essential; the persons shall decide on their own whether they want to publish their personal data or not. Weber states that in data protection focus should be on the aspect of information allocation instead of informational self-determination. There is no data ownership as such; information belongs to its owner as far as it refers to a specific person.
According to Weber, the «new» data protection laws should be oriented towards participation and organisation. An adequate transparency must be established in order to hinder manipulation of stored data. Thereby, information security has to assume an important function. Weber discusses further problem areas of data protection that must be discussed in the future (e.g. the question of sufficient information quality).
The conflict between distribution and exclusion of information is accentuated in specific personal constellations. For example, the intervention into personal rights can be justified by the argument that the relevant person is a «person of the contemporary history». In such a context, a right to informational self-determination is difficult to enforce. Therefore, Weber pleads for more regulation on a professional-ethical level in order to enhance the personal rights of the above-mentioned persons. Furthermore, the text discusses the impact of the (increasing) commercialisation of celebrities on the right of personality in the light of article 28 of the Swiss Civil Code.
Weber concludes his text with three elaborated theses: (i) The conflict between the distribution of information and the exclusion of information has been expanded for the last years. (ii) New concepts have to be evaluated since neither the so-called sphere theory nor the term of secret can establish an appropriate balancing in this conflict. (iii) A specific problem is the formulation of personality rights of persons of the contemporary history. According to Weber, the opening of a broader information access must correlate with adequate requirements for information quality.
Further Developments
Privacy and data protection have, since the early contribution of Weber, become an intensively debated topic. Furthermore, the Snowden revelations have increased the sensitivity for privacy issues. New innovations such as wearables and smart cars are subject to the Data Protection Act in Switzerland as well as to the nearly adopted General Data Protection Regulation in the European Union. Therefore, the recent privacy challenges have led to revisions of the relevant legal frameworks.
After his 1999 publication, Rolf H. Weber wrote a large number of articles on various topics of data protection law. In 2015, Weber published a collection of data protection contributions in a voluminous book «Datenschutz – Zum Aufstieg einer neuen Rechtsdisziplin» (translated: «Data Protection – The Rise of a New Legal Discipline»). This collection includes 27 publications from 2007 to 2015. These texts deal with manifold questions and problems of data protection. The collection gives a welcome overview with regard to the legal development in data protection.
A similarly very valuable publication is Gasser’s text «Perspective on the Future of Digital Privacy» (ZSR 2015 II, Volume 134, Schweizerischer Juristentag 2015, Rechtsfragen im digitalen Zeitalter, pp. 335–448), as mentioned above (cf. Burkert, 2.2 lit. c). The text is written in English and is divided into: (A) Framing the Digital Privacy Challenge; (B) Analysing the Forces at Play; (C) Approaches to the Future of Digital Privacy; and (D) Designing for the Future.