EU and comparative law issues and challenges series (ECLIC)

DIGITAL EVIDENCE IN INTERNATIONAL CRIMINAL PROCEEDINGS AND HUMAN RIGHTS CHALLENGES

2023-11-06T11:35:39+01:00

Digital technologies offer great opportunities in every field of life, including in criminal proceedings, where gathering evidence using digital or computer devices is an important contribution to the investigation of crimes, especially at the international level. Digital evidence is particularly important in the prosecution of international crimes due both to their complexity and to its ability to overcome hurdles that international judges must overcome when factfinding relates to conduct that occurred far from the seat of the court. While the of digital evidence is increasing, however, questions have arisen concerning both its admissibility and of its reliability, as the jurisprudence of the International Criminal Court (ICC) and other international criminal tribunals makes clear. The use of digital evidence may also raise concerns for the respect of due process standards and the right to private life. In the absence of specific international legal rules that deal with the matter, the purpose of this contribution is to identify the most pressing issues through an examination of the case law of international tribunals and to infer potential solutions and best practices to consider in developing international human rights based procedural standards.

INTERNATIONAL FAMILY LAW IN THE AGE OF DIGITALISATION

2023-11-06T11:38:10+01:00

This article illustrates in an anecdotal way the impact of digitalisation on international family law. Specifically, it explores the part that digital technologies have played in the expansion of cross-border assisted reproduction, with a particular focus on cross-border surrogacy arrangements. It then examines the interface between international parental child abduction and facial recognition technologies. The EU approach to the use of AI-powered facial recognition technologies is explained, before considering the potential utility of facial recognition technologies in the specific context of international parental child abduction.

MANAGING CROSS-BORDER “DIGITAL SUCCESSION” IN THE DIGITAL ERA

2023-11-06T11:41:50+01:00

This paper aims to answer to a rather common question: what happen to our digital estate when we die? To do so, after analysing the composition of a digital estate, the paper will determine, firstly, the legal framework applicable to a cross-border succession to a digital estate. It will then investigate: (i) which assets are transferable upon death and to what extent; (ii) under what conditions heirs have access to the deceased’s accounts; and (iii) which interests on the digital content created by the deceased are protected and how. The analysis will be conducted through the lens of the current private international law framework in force in EU Member States, in order to formulate some preliminary remarks on its adequacy to manage this new succession phenomenon and the issues it raises.

PROPERTY RIGHTS OVER CRYPTOCURRENCIES

2023-11-06T12:02:15+01:00

The paper tackles the conflicts of laws on property rights over cryptocurrencies, starting from characterization issues. Building upon the distinctive nature of cryptocurrencies as “pure” de facto assets, that do not give a claim against an issuer, and the relevance of control over said assets as a suitable alternative to the traditional possession, the paper supports the characterization in terms of “assets”, over which property rights may, subject to the relevant lex causae, be constituted and enjoyed. By examining the available options for a conflict-of-law regime and considering the first legislative efforts conducted in this area of law both at the supranational and national level, the elective situs approach is identified as the most appropriate, possibly backed by some regulatory requirement, whilst different approaches are envisaged for the fall-back rule applicable to cryptocurrencies originated in, respectively, permissioned and permissionless DLT systems.

DATA PROTECTION AND CYBERSECURITY

2023-11-06T12:07:19+01:00

Cybersecurity is not easily defined. The 2019 EU Cybersecurity Act defines it as the activities necessary to protect network and information systems, the users of such systems, and other persons affected by cyber threats. Enduringly, cybersecurity was associated with national security, without consideration of what ‘secure’ Internet means for individual users. In reality, cybersecurity policy focused by and large on systems rather than users, i.e., people. However, as a policy area concerned with online behavior regulation, its definition and implementation inevitably has profound implications for human rights, especially in regard to data protection and freedom of expression. Unsurprisingly, cybersecurity has become a new human rights battleground. The EU Cybersecurity Act and subsequent legislation represent a normative shift in our conception of data ownership, putting ownership and control of personal information in the hands of the user rather than the service provider. Luckily, there have been positive legislative shifts regarding data protection in the context of the EU cybersecurity policy at EU level. But are they (or will they be) adopted by European courts? To answer, this paper peers into the relevant case-law of the Court of Justice of the EU as well as of the European Court of Human Rights.

OF BIOMETRIC DOCUMENTS, DATABASES AND FREE MOVEMENT OF PERSONS IN THE EU

2023-11-06T12:09:52+01:00

Free movement of persons is a right recognised by the Treaty on the Functioning of the European Union (TFEU) for EU nationals (and their family members, irrespective of their nationality), and is one of the rights related to EU citizenship. Being an EU national is the qualifying element to benefit from the free movement regime, which is more favourable than the immigration regime otherwise applicable to foreigners. In order to prove one’s nationality, identity cards and passports play a central role. The issuance of these documents is regulated by national law. Over the last 20 years, EU law has intervened in this area with the aim of strengthening the document security. In 2004, the EU institutions passed a regulation on biometric passports and in 2019 a regulation on biometric identity cards. From now on, the facial image and fingerprints data of the holder are kept in the storage medium in these documents. The reasons for the introduction of biometric data lie in preventing the falsification of the document and the fraudulent use of authentic documents. On the one hand, the techniques used to preserve and protect the data make these documents more difficult to forge. On the other hand, the presence of biometric data creates a reliable link between the holder and the person who owns the document, thus making it easier to identify the person, and more difficult to use the document fraudulently by those who are not the real holder. Meanwhile, the EU is promoting the interoperability of the many databases established overtime. Interoperability connects different databases and makes the data stored in them searchable and accessible to a wider range of authorities and for other purposes than those for which they are collected. Biometric data, such as facial images and fingerprints are stored in many databases. The paper will sketch out the interference of the two issues (biometric documents and databases) in relation to the free movement of persons, in order 1) to map the instances in which controls on biometric documents of EU nationals or family members lead to search in the databases, and 2) to assess the impact that the very existence of biometric documents and databases can have on the fundamental rights of individuals.

TOUCH SCREEN JUSTICE AND CONSUMER VULNERABILITY – A MIXED BLESSING?

2023-11-06T12:13:18+01:00

Digitalization is the future and the future is now. New commercial possibilities in the digital market are constantly being explored and exploited. Phenomena such as ecommerce automation and the impact of big data use on transformation of retailer-consumer relationship are increasingly present and more familiar by the day. With them, new perspectives to render consumers vulnerable arise. The digital vulnerability, unlike other types of consumer vulnerability is a state typical of every consumer in the digital market. This notion challenges the existing consumer law and policy’s ability to address the issues that arise in relation to such vulnerability with the traditional perspective. It also questions whether the redesign in the architecture of digital marketplaces is making the traditional architecture of dispute resolution obsolete. With these issues as a starting point, the paper assesses the current trend of streamlining consumer dispute resolution to AI tools and touch screen justice. We argue that under the current set up, instead of providing access to justice that is more available to consumers, this trend has a potential to generate a systemic vulnerability in itself.

RETHINKING COMMAND RESPONSIBILITY IN THE CONTEXT OF EMERGING AI WEAPONS

2023-11-06T12:16:26+01:00

This paper addresses the issue of command liability for severe criminal offenses committed by means of autonomous and semi-autonomous weapons. Research has shown that the leading military forces around the world are intensively working on designing autonomous weapons, which will provide them an enormous tactical ad logistical advantage in warfare. As the national and international law concept of command responsibility to date has been based on the idea of humans selecting and ordering the destruction of targets, the author raises the question of whether this has also created a set of legal norms that could adequately regulate such situations in the context of new warfare techniques. The first section of the paper briefly outlines the direction of the development of autonomous weapons. The second section analyzes the provisions on command responsibility of the Rome Statute and the Statute of the ad hoc tribunals for Yugoslavia and Rwanda. The national legislation of some countries and the significant jurisprudence in this field is also analyzed and projected into the context of semi-autonomous and autonomous warfare. A special emphasis is placed on the issue of unconscious negligence. The objective of the paper is to indicate the legal gaps and to propose guidelines for future development.

WHEN IS A CRYPTOCURRENCY TRANSFER INTERNATIONAL IN DISTRIBUTED LEDGER TECHNOLOGY-BASED SYSTEMS?

2023-11-06T12:19:30+01:00

ALGORITHMIC DISCRIMINATION

2023-11-06T12:23:31+01:00

The paper aims at providing an overview of the issues raised by algorithmic discrimination, and the key contributions proposed in the literature to address them. It is intended to be used as a starting point for those interested in approaching the topic for the first time or as a syllabus for the students taking the Erasmus+ Strategic Partnership MOOC “Time to Become Digital in Law”. First, the contribution will outline what algorithms are and what we consider algorithmic bias and what are its causes. Second, it will investigate the ethical and social implications of algorithmic bias. Then, the paper will focus on how existing laws and regulations can be applied to algorithmic discrimination. This contribution will focus in particular on the two branches of law that have been identified in the literature as the most relevant in this context: anti-discrimination law and data protection law. The work will outline their potentialities and limitations, presenting some proposals advanced in the literature to fill the new and emerging gaps of protection.

PRIVATE INTERNATIONAL LAW AS A MEANS TO PROJECT EU DIGITAL VALUES ABROAD

2023-11-06T12:26:27+01:00

In light of the pivotal role that new technologies play for the achievement of policy objectives, and considering their ability to negatively affect rights and freedoms in a ubiquitous manner, EU law is adopting a number of instruments to regulate those matters that are particularly influenced by digitalisation. Such instruments include substantive rules applicable to several online activities. This legislation aims at establishing an environment where digital interactions take place in accordance with fundamental rights, whose protection is enshrined within EU primary law, as well as to ensure the proper functioning of the internal market. Given the ubiquitous nature of digital technologies, and in order for these rules to be effective, their scope of application is designed to also include cases that may be strongly related to Third States. In this way, the EU aims at strengthening its digital sovereignty by creating a strong digital single market, and by guaranteeing the protection of European users, whose rights should benefit from the protection of EU substantive law even when digital activities take place abroad. Although the EU has a strong interest in ensuring a broad application of its substantive rules, the possibility for EU law to be concretely applicable abroad depends – in the first place – on the existence of jurisdictional rules specifically designed to apply to disputes that may involve parties from Third States. Nonetheless, while some of the instruments adopted in this area ensure the application of substantive rules by providing for specific grounds of jurisdiction, litigation in these matters will normally fall within the scope of Regulation (EU) n. 1215/2012, whose rules apply – in general – only when the defendant has her/his domicile in the Union. In light of these considerations, the paper will assess the coherence between the broad scope of some of the instruments that the EU has adopted (or is going to adopt) in fields strongly affected by digitalisation – such as the GDPR, as well as other EU’s initiatives pertaining to Artificial Intelligence and to digital platforms – and Regulation (EU) n. 1215/2012, in order to evaluate the ability of the latter to support the application of EU digital standards world-wide.

CROSS-BORDER SERVICE OF DOCUMENTS IN EU GOING ONLINE

2023-11-06T12:28:49+01:00

The service of documents is crucial for the smooth initiation and operation of cross-border civil and commercial proceedings. Cross-border service of documents raises the issues on effectiveness and efficiency of proceedings together with the effective right to access a (foreign) court in terms of the language used and the effective possibility of appearing before a court. In response, international judicial cooperation in the service of documents was established and operated for decades, starting with the Hague 1965 Service Convention. The importance of proper service of documents also comes from the fact that it is a condition to recognise and enforce the final foreign judgment in different domestic, European, and international legislations. The abolition of the exequatur procedure in the context of the EU legislation in civil matters points toward an even greater need for harmonisation, which seeks to be achieved through the Service of Documents Regulation. The changes in individual lives and business operations affected by digitalisation have also led to the need for the modernisation of judicial cooperation. The Service of Document Regulation underwent the recast procedure and entered into force on 1 July 2022. It has brought novelties, given the introduction of mandatory electronic communication between the agencies and facilitating electronic and direct service. The significant changes concern the e-Codex as the mean of communication; electronic service; electronic signature of deeds, documents and forms; and assistance in address enquiries. The paper assesses the implication of using ICT in the service of documents and, at the same time, addresses whether the changes are fully up with the fast-growing general technological advancement since it seems that the implementation level still depends on the Member States.

INDIVIDUAL CRIMINAL RESPONSIBILITY OF NON-STATE ACTORS OPERATING IN CYBERSPACE FOR WAR CRIMES UNDER THE ICC STATUTE

2023-11-06T12:36:53+01:00

Contemporary armed conflict has witnessed an increased employment of digital technologies in the conduct of hostilities. While there is broad consensus on the full applicability of the rules and principles of international humanitarian law (IHL) to the “fifth domain” of warfare, many issues remain debated. More specifically, digital technologies allow a wide range of actors other than States – such as individuals, “hacktivists”, criminal groups, non-State armed groups – to play a role in the hostilities and engage in cyber operations that have the potential of harming civilians or damaging civilian infrastructure and that may amount to serious violations of IHL. Against this backdrop, this paper seeks to examine the legal grounds upon which hostile cyber operations carried out by non-State actors (NSAs) could constitute war crimes, thus entailing their individual criminal responsibility under international law. Hence, the analysis will focus on the applicability of the war crimes provisions of the Rome Statute of the International Criminal Court (ICC) to such operations, with a view to identifying the prerequisites necessary to trigger the ICC’s jurisdiction. To this end, the first part will focus on the increased involvement of NSAs in the conduct of hostilities by cyber means, taking the recent conflict between Russia and Ukraine as a pertinent case study. Subsequently, the paper will explore the conditions necessary for the application of Article 8 of the ICC Statute, with special attention devoted to those aspects that are deemed particularly problematic in light of the participation of NSAs in armed conflict. Finally, the paper seeks to highlight the limits of possible future investigations of cyber conducts possibly amounting to war crimes. These encompass not only issues of admissibility, but also the statutory limits of the Rome Statute when it comes to war crimes provisions applicable to noninternational armed conflicts.

CONTEMPORARY FORMS OF WORK WITH A DIGITAL FEATURE IN PRIVATE INTERNATIONAL LAW

2023-11-06T12:40:33+01:00

Digitalization has enabled the rapid development of the gig economy and changed the entire paradigm in such a way that through digitalization people are increasingly achieving their primary employment. As a result, there is a frequent occurrence of the phenomenon of digital nomads and platform workers. Although initially conceived as freelance jobs, in certain cases, the legal relationships of digital nomads or platform workers take on the characteristics of an employment relationship. To circumvent fiscal and labour obligations, digital nomads or platform workers are often defined in contracts as self-employed individuals or independent contractors, resulting in a deprivation of labour rights. Consequently, a challenge arises for European private international law in terms of the correct characterization regarding the legal relationship and, subsequently, the application of the appropriate conflict of law rule to determine the applicable law.

FEASIBILITY OF MOOCS FOR LEGAL EDUCATION

2023-11-06T12:42:48+01:00

Distance learning tools are not a feature of modern times. However, COVID-19 pandemic boosted its usage and enabled its penetration into higher education. Among various e-learning features, higher education embraced model of Massive Open Online Courses (MOOCs). This paper addresses the very notion of e-learning in law. It focuses on MOOCs from the perspective of educational pedagogy, but more specifically on its usage in legal education. Pros and contras are given based on experience of MOOCs development in the framework of DIGinLaw project.

DEEP DIVE INTO THE MEDIA WORLD OF YOUTH

2023-11-06T12:47:39+01:00

The emergence of internet technologies and social media platforms has affected all aspects of life, especially among younger generations. In this new media world of social media, for stakeholders dealing with the 15–24-year-old population it is important to understand how to communicate and engage with them. Using a combination of qualitative/quantitative research methodology, this paper aims to provide a comprehensive, descriptive view of the values, perception, and behaviour of youth (15–24) in Croatia when it comes to digital media channels and especially social media. Research results confirmed that social networks, messaging services and browsing internet are the dominant activities of young generation. YouTube, Instagram, and Facebook are the most popular social network, and principals in content creation are authenticity, customization, and interactivity. These results should serve as a basis for communication strategies within this target audience. And since the way young use social networks and create/consume content changes daily, legal framework should follow.

SUPPORTING LAW TEACHERS’ IN THE DEVELOPMENT OF MOOCS

2023-11-06T12:56:52+01:00

Modernising law and legal education are inevitable in today’s society. Possible arguments for not taking such steps disappeared with the pandemic which fostered processes which were postponed or were found as not applicable. Onwards, the COVID-19 pandemic has further accelerated the existing trend toward online and hybrid learning. It uncovered new and innovative ways for students and educators to organise their teaching and learning activities and to interact in a more personal and flexible manner online. Several papers and policies on the European level, among them Digital Education Action Plan highlight the importance of developing a high-performing digital education ecosystem and higher levels of digital capacity of education and training systems and institutions. Still, the process of modernisation and digitalisation of law and legal education is complex and requires significant efforts and resources from all stakeholders involved. The important aspect in this process is teachers’ preparedness and ability to implement digital technologies in teaching and learning, the support they need in this process as well as their training in digital skills to be able to properly use and implement digital technologies using new teaching methods and digital pedagogies. This paper discusses how to support teachers in the digitalisation of law and legal education and teachers’ training in acquiring necessary digital competences. This is part of the Erasmus+ project Digital in Law Education (DIGinLaw) where one of the results is the development of 12 MOOCs on the topic of law and legal education in higher education. The aim of this paper is to reveal the significance of organizational support for teachers and the importance of developing teachers’ digital skills and competences for successfully meeting the challenges of the digitalization of legal education. The paper describes the process taken to support teachers in the development of MOOCs including their training in digital skills. The results of the research – the proposed model of supporting and training teachers in MOOC design - can be applied to similar requirements for higher education teachers’ support in implementing digital technologies in teaching and learning. Using the survey as a quantitative research method and in-depth semi-structured interviews as a qualitative method, the paper gives insight into teachers’ readiness to use digital technologies and what kind of support and training they need to sufficiently implement digital technologies in the educational process.