Rolf H. Weber, Allgemeiner Überblick, in: Rolf H. Weber (ed.), Information und Kommunikation als Gegenstand des Rechts, § 5 Informations- und Kommunikationsrecht als Querschnittsmaterie, Volume V/1, in: Heinrich Koller/Georg Müller/René Rhinow/Ulrich Zimmerli (eds.), Schweizerisches Bundesverwaltungsrecht (SBVR), Section A, pp. 28–48, Second Edition (Basel/Geneva/Munich 2003).
The 1996 launched series «Swiss Federal Administrative Law» includes a volume on information and communications law. In view of the fast developments of information, society and the law are also confronted with new challenges. Therefore, in 2003 Rolf H. Weber published a revised version of the 1996 treatise, which addresses relevant issues of information and communications law.
The field of information and communications law has experienced dynamic changes from a theoretical-dogmatic perspective, as well as in practical aspects. Due to these partly quite radical developments, information and communications law must be captured as a cross-sectional matter. Weber’s text analyses information and communications law based on the described background as a subject of law.
Rolf H. Weber (born 1951) is a professor in 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 the co-founder and director 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.
In the first part of the text, Rolf H. Weber analyses information and communications law as a cross-sectional domain. Weber starts with the promise that this legal field is not a system itself; however, if there is a specific reason, the information can become a subject of law. This fact is shown by the increasing statutory regulations governing information, even if the respective legal field can often only assume (limited) auxiliary functions.
Information and communications law can be analysed from a formal and also a material perspective. Formally a differentiation is possible as to whether there is information flow or not and whether interest in the information has to be protected on the sender’s or the receiver’s side. The four case groups can be described as follows:
- Guarantee of access to the addressees (relation between information and the informed)
- Right to obtain information (relation between information and the non-informed)
- Secrecy protection (relation between non-information and the informed)
- Protection of information (relation between non-information and non-informed)
Thereby, information access and also data protection need to be evaluated as substantive aspects. Materially, information law can also be classified in different ways. For example, a classification as follows is possible: (1) The right of disposal of information refers to economically significant values; the framework of intellectual property and competition law and the handling with information have to be observed. (2) The basis for entitlements in contract and administrative law is to be strengthened; individuals should be able to claim the disclosure of certain information. (3) A liability for data with regard to the specific characteristics of incorrect information must be introduced. (4) Specific parts of information are protected and only accessible for the concerned person (secrecy). Apart from this classification, Weber acknowledges that many more systematic approaches are conceivable. Information and communications play an important role in the following fields:
- Data protection: The globalisation of information and communications goes hand in hand with a need for secrecy. The permanent availability of information causes a threat of interventions into the relevant (secret) spheres. Therefore, privacy by design merits greater importance.
- Intellectual property law: The reproducibility of programs and the facilitated dissemination of certain services make proper legal protection of the original performance provider necessary. Therefore, Weber particularly discusses copyright law.
- Computer and technology law: The increased importance of communications services leads to increased juridical demands to have established a comprehensive computer and technology law. Weber mentions the electronic publication of law, the computerisation of legal registries and the structures of electronic trade as significant aspects.
- Media ownership and media control: Weber analyses the power of information intermediaries; those who have this power can control – in general – the content. As a consequence, the functioning of a competition law framework (antitrust law) is important.
- Security: Weber states that due to the globalisation of information and communications, the national security interests, the operational interests of electronic systems and encrypted information are affected (keyword: cryptography).
In the following chapter, Weber analyses the above-mentioned control functions of law in the sector of information and communications. The law can control through mandatory rules. In this context transparency and organisation, for example, must be classified as important control mechanisms. If regulations of information entail more transparency, they can serve the objective of truth. Regarding the rules of control, Weber differs between procedural and substantive law. Procedurally, the competence is an indication for the right to transmit the information. In contrast, the information is an indication for other (legally relevant) behavioural obligations. The law has to rule the assignment and the exploitation of information. This is essential due to the valuable nature of information. In addition, Weber highlights the importance of information distribution rules. The function of law is to guarantee a free flow of information, as well as an undistorted information market.
In a further section, Weber analyses the creation of a regulatory concept for the area of information and communications. The legislator has to define an adequate level of power and to describe the access to the data transfer technology. With regard to the permeable borders between general and individual communications, transmission (conduit)-based distinctions and content become key regulatory principles. Therefore, Weber pleads for an intensified debate about this «division». The growth of the information society, linked with the fact that not every person has access to the available information, is a tremendous social challenge; particularly, a two-class society must be prevented from occurring.
In the last section, Weber analyses the openness of the information exchange. He outlines the tensions between the dissemination of information and the exclusion of information. Regarding the dissemination of information, Weber describes the principles of an actively initiated information flow and the constitutional right of information access. In respect to the exclusion of information, the text deepens the above-mentioned problem of information overload, data protection and information security. Furthermore, Weber analyses «classic» secrecy rules in the Swiss legislation.
In general, the text discusses many topics that are still relevant. One hot topic is the steadily increasing importance of computers and the information and communications law as a cross-sectional matter. Furthermore, data protection is much discussed; the relevant rules in the European Union and in Switzerland are currently under revision. Privacy by design and privacy by default play important roles in this legislative process. With regard to computer and technology law, it can be said that digitisation is an unstoppable process with a big impact on the existing legislation. In addition, media ownership and media control are often linked with the information intermediary giant Google. Antitrust law is (and will be) one of the most important legal fields in our connected world. Finally, the mentioned cryptography plays an essential role as a security factor in transactions with digital currencies or in the blockchain technology used by FinTech businesses.
You can find a scan (PDF) of the original text here: Weber – Allgemeiner Ueberblick.