2.18 Herbert Burkert, Information Law: From Discipline to Method (February 28, 2014). Berkman Center Research Publication No. 2014-5; U. of St. Gallen Law & Economics Working Paper No. 2014-02. Available at SSRN:http://ssrn.com/abstract=2402866 or http://dx.doi.org/10.2139/ssrn.2402866
The text at hand is the farewell lecture of Herbert Burkert at the University of St. Gallen , Burkert provides the first comprehensive description of the “St. Gallen Approach to Information Law”. In this remarkable lecture, Burkert also addressed why this approach was tried in St. Gallen: “For one, as early as the 80s, scientists and practitioners in the areas of law and computer science met here on a semi-regular basis in a long tradition of so-called ‘law and information circles’. In addition, the University of St Gallen is a place in which computational economics, business, and communication sciences have historically been and still are in close dialogue with legal studies. And finally, one shouldn’t forget that the university encourages such collaboration; it is an essential element of its didactic and research strategy. For this reason, the term ‘St. Gallen Approach’ seemed justified to us and we use it in international Background.”
Burkert is among the earliest and most internationally respected legal scholars from the German speaking part of Europe who has devoted much of his legal thinking and writing to the systematic analysis of information law as an emerging interdisciplinary field at the intersection of law, technology, markets and social norms. Burkert published several highly influential books and articles on information law. His publications on public sector information, for instance, have had a deep influence on the respective OECD guidelines and principles, respectively. He was also involved, as part of an initiative by the European Commission, in the development of the code of conduct for social networking platform providers in Europe. Among his most recognized contributions are his studies on freedom of information and data protection laws in Europe (including Switzerland).
At the Research Center for Information Law, Herbert Burkert teamed up with Urs Gasser to further sharpen the contours of the St. Gallen School of Information Law by developing a methodological core for it (also known as the “St. Gallen Approach to Information Law”).
The concept of Information Law goes back to the 1970 and originally had a markedly technology-related connotation with a strong emphasis on the phenomenon of automation-assisted data-processing and the problems of social controls of information associated with the altered distribution of information in society. Subsequently, the focus of attention shifted away from a technology-centric view towards a broader understanding of Information Law, defined as the sum total of the legal norms that relate to information, including its production and processing, storage, conversation, transfer, reproduction, use and consultation. Topics associated with information law are many and various, and include the infrastructure, content, ownership, identity, data protection, participation, and ethical debates, among others.
The text at hand is farewell lecture of Herbert Burkert’s held at the University of St. Gallen in October 2012. In this highly sophisticated speech, Burkert not only synthesizes decades of research and collaborative work conducted among researchers affiliated with the St. Gallen Research Center for Information Law, but takes information law theory to the next level. In fact, the text is the first attempt aimed at describing in detail the information law method as it emerged in the St. Gallen context—a method incubated by Jean Nicolas Druey and tested out in practice by Burkert and Urs Gasser in particular. Burkert’s farewell lecture is full of nuances, but also addresses fundamental questions about the relationship between law and information as well as between information and constitutional law. The focus of this summary is on the methodological argument presented in the paper. Building upon practical examples, Burkert describes what he calls an information-functional approach (informationsfunktionale Betrachtung), consisting of three steps or phases. The analysis of an information phenomenon which is scrutinized by the legal system—take, for example, laws aimed at informing the public about certain environmental or health risks, or the interpretation of laws about the role and obligation of national archives—starts with the description of the underlying information model: Where is the information about what is generated and distributed over what media, with what purpose, and for which audience? The second phase of the analysis includes two elements. One element focuses on the information model identified in the first step, which is now analysed with regard to possible functional problems: Do we observe, for instance, breaks in the communication medium, flow, semantic shortcomings, inadequate dissemination, or threats to its integrity? The second element looks at the (existing or proposed) legal norms in question and tests them for their effectiveness: Which information intervention mechanisms will the regulation make available? How and in which way will the relevant regulations intervene in the information processes? How functional are such interventions in regard to problems identified in the information processes? Which malfunctions do they eliminate? Do alternatives exist? Again, depending on the question, this stage involves an evaluation, whether and to what extent a given or projected legal instrument is functionally suited for solving existing or predicted information problems.
In a third and final step, the functional analysis—including, potentially, alternative functional solutions—are evaluated against the legal-normative framework conditions. Questions include: What normative information structuring principles can accommodate functional considerations as needed and be implemented with the appropriate legal regulations? At which point must constitutional law be appealed? For this purpose, the normative framework—in particular constitutional law, but also other sources of (information) law, including norms born out of interaction (in the sense of Druey’s theory of sources of information law)—must be examined and the values extracted that we consider important for evaluating and constructing societal information flows. In the text, all three steps are illustrated by a number of case studies and examples. In sum, the information law approach presented in Burkert’s farewell lecture combines elements of system analysis, which utilize the process-oriented methods of computational economics and administration information technology, directs evaluations at information flows and, if applicable, appeals to constitutional law.