IntroductionInformation Law – Introduction

Information law is a relatively new legal field in Switzerland and abroad. In real life, information has always played an important role in society; the relations between private (commercial or not) persons and the relations between governmental bodies and the citizens are based on information from the origins of society thousands of years ago. But this «natural» situation has not contributed to the establishment of information law as a special legal discipline.

The lack of a homogenous approach governing the information issues in private law is evidenced by the fact that the information-related rights in the various civil law relations (family, inheritance, contract, company law) are quite differently organised and regulated, even if the underlying objectives are similar. The same impression exists in the field of public law. Access to information laws and data protection laws is often released in a manner that is not very coherent and differs quite considerably amongst the jurisdictions, even in times of globalisation and the Internet.

If «information» is understood in a very broad sense, it can be said that the only area having been subject to conceptual legal efforts concerns the communications and/or media providers. Media law has for a long time been recognised as a distinct discipline; looking from a substantive perspective, media deals with communications. However, the information as such has not been addressed in detail by scholars of media law. In addition, not only in Switzerland but also in other countries, different authorities have been regulating and supervising media enterprises (mainly related to content) and telecommunication providers as information transporters (mainly related to conduit), respectively; print media has not been subject to specific regulation.

In contrast to the relatively weak research efforts in legal doctrine (and the lack of legislative actions related to informational issues), expertise in technology can be widely diagnosed in Switzerland. At the forefront, professors and assistants at the Eidgenössischen Technischen Hochschule (ETH, Swiss Federal Institute of Technology) in Zurich have become leaders in several aspects; for example, in the development of the early computers and in programming languages and software (cf. Egger, 1.1.). As a consequence, experts from ETH have been instrumental in technological inventions that have been transferred into practical applications in Swiss firms (Heinz Rutishauser, Ambros Speiser, Konrad Zuse). Correspondingly, it is not exaggerated to state that Switzerland has been a forerunner in information technology development.

On the legal side, the first attempts to design a concept of information law go back to the time when informatics started to play a role in society. The main efforts were undertaken in Germany. In the context of law and informatics, combined with the new developments in automation, the function of law had to be reconsidered. In particular, two German professors having been educated in law and mathematics or psychology, Herbert Fiedler and Wilhelm Steinmüller, described ways in which the technique of law making can be suitable for the computer (cf. Forstmoser, 1.2; Egloff, 3.3). The intellectual foundation of this approach was to establish links between elements of an offence and its legal consequence or between legal principles and life situations; in an ideal case, «yes/no» decisions would be possible based on informatics programs. In Switzerland, Peter Forstmoser took up these ideas but with a partly quite critical perception (cf. Forstmoser, 1.2). However, this law and informatics concept never had a real breakthrough. This assessment is partly due to the fact that new circumstances have redirected attention to other fields.

On the one hand, information law in the nineties was a new discipline but became an actual topic of scientific legal research. On the other hand, at the same time, the invention and commercialisation of the Internet and World Wide Web raised the need to address new legal questions and challenges. As a consequence, the discussions about law and informatics generally lost importance and the fact that the corresponding issues on law and informatics did not really start up in Switzerland was not a major disadvantage.

As far as the theoretical and conceptual research efforts related to information law is concerned, two publications from the mid-nineties have become very influential; namely, the ground-breaking book on information law by Jean Nicolas Druey (1995; cf. Druey, 2.1) and the shorter and more structured treatise of Rolf H. Weber (1996, 2nd edition 2003; cf. Weber, 1.3). In particular, Druey’s book outlined an overarching concept by looking at manifold facets of information in legal relations. Druey has also become the father of the so-called «St. Gallen Research Approach of the Information Law» (cf. Gasser, 2.1).

Druey has been a pioneer in linking information to law, being itself specific information, and in developing basic strategies employed by information (cf. Druey, 2.1). Druey also puts emphasis on the asymmetry between informing and not-informing; but irrespective of the developed theoretical concepts, Druey states that law cannot regulate information in its totality due to phenomenological reasons. His influential book has laid the scientific foundation for further research in the field of information law. Weber looked at the possible differentiation of the information flow, the adequate classification methods for information law and the areas in which information plays a particular role in the legal system (cf. Weber, 1.3). The manifold topics discussed in the relatively short treatise show that information law must be understood as a cross-sectional matter and as an interdisciplinary approach.

Following Jean Nicolas Druey, the Law Faculty of St. Gallen University became the «hub» for information law research scholars of different generations (Rainer Schweizer, Herbert Burkert, Urs Gasser). In particular, this team from the Eastern part of Switzerland called their scientific activities the «St. Gallen Approach of the Information Law», labelling the ongoing work as «marketing strategy». The key messages of this approach can be summarised as follows: (i) Information must be seen, as already stated by Weber, as a cross-sectional discipline. (ii) Information is an interdisciplinary way of looking at things. (iii) Information law is a blend of legal and phenomenological ways of looking at things. (iv) Information law is part of the legal system. (v) Information law is law in fields of tension (cf. Gasser, 2.1). Over the years, however, the St. Gallen research activities have partly lost momentum due to personal reasons (Druey and Schweizer retired and Gasser moved to the Berkman Center for Internet & Society at Harvard University). But in 2015, Druey published the book «The Code of Information», which is linked to his seminal book from 1995.
The efforts to build on information law have mainly been taken over by the Center for Information and Communications Law at the University of Zurich, incorporated by Rolf H. Weber in 1998 (with a book series of more than 60 volumes in the meantime), and since 2015 replaced by the interdisciplinary Center for Information Technology, Society and Law (ITSL). In this context, an important contribution to the basic foundations of information law can be seen in a quite theoretical contribution that sheds light on this discipline from the angle of the structuration theory and the governance theory (cf. Weber, 2.1). This article concludes that in the information context, procedural rules must gain enhanced importance; appropriate actor-centred processes based on appropriate governance models have to guarantee the participation of the concerned stakeholders in the information society.
Several contributions have tried to bring more concretization into the rather abstract concepts of the information law theories. According to Daniel Thürer, in a world of global digital commons the constitutional «ius communicationis» and the «communicatio iuris», founded on an interdisciplinary perspective, are essential for a vital information society (cf. Thürer, 2.2). Another extension of the theoretical approach concerns the emphasis of methodological aspects of the information law. According to Herbert Burkert’s perception, both the descriptive and functional parts of the informational method can freely borrow from disciplines and research efforts outside the law; therefore, a clearer direction of the efforts towards methods might be beneficial for information law in the future (cf. Burkert, 2.2).

For obvious reasons information law has spillover effects on «related» areas: (i) The importance of data protection and the right to informational self-determination has become a key research field of information law (cf. Weber, 3.1); in fact, privacy-oriented publications play a quantitatively central role in the debates about information law for substantive, procedural and geographical reasons in a world of globalisation and lost borders in the Internet. (ii) Contract law and liability law also had to adapt their traditional concepts to the new technological developments: In contract law a stronger inclusion of the linguistic theories and knowledge patterns appears to be advisable in order to develop models for communicative acts (cf. Huguenin, 3.2). Liability issues arise particularly in connection with the use and distribution of open source software; new concepts are needed in order to comply with the changed technology leading towards a higher degree of sharing valuable information (cf. Laux/Widmer, 3.2). (iii) The important legal fields of competition law and intellectual property law equally need to be adjusted to the needs of the information society: The required «open approaches» can encompass open source, open access, and open innovation; so far open innovation has been underestimated, but the way market participants react in general and how their role as entrepreneurs influences competition in a broader context merits more attention (cf. Hilty, 3.3). Another topic is the access to scientific and technical information in view of the tensions between private interests and social needs; new forms of data processing and potentially mandatory licenses enabling interested persons to get access to the relevant information should be considered (cf. Egloff, 3.3). The protection of content being available on the Internet is a further issue that has caused intensive debates and legal activities; the results do not seem to be satisfying for the time being (i.e., other approaches to copyright protection appear to be more sensible in the long run) (cf. Tissot, 3.3). For quite some time the so-called administrative information law had been neglected as a discipline; only specific questions disregarding the necessity to develop a coherent legal framework were dealt with; a foundational approach sketched by Schweizer/Burkert (cf. 3.4), which already existed 20 years ago, merits further development.

During the past 10 years, information law has been increasingly overlapped by Internet law. This new discipline obviously has a broad scope and encompasses a wide variety of topics. In connection with information law, particular emphasis must be paid to the more theoretical aspects of new legal concepts. Looking from a Swiss perspective, it is certainly noteworthy that the World Wide Web and several programming languages for the Internet have been invented in Switzerland (CERN, Geneva) and that Swiss persons exercise important functions in U.S. Internet technology enterprises (cf. Berners-Lee/Calliau/Groff/Pollermann, 4.1). But Switzerland has also played a pivotal role in the governance of the Internet. From the beginning Swiss experts have been involved in the design of Internet governance structures; for example, by organising the first World Summit on the Information Society (WSIS, 2003), executing an active role in the establishment of the Internet Governance Forum (IGF)—logistically through its domicile in Geneva and personally through the appointment of the first head of the IGF (Markus Kummer)—and promoting the European IGF, EuroDIG (cf. Weber/Schneider, 4.2). Switzerland is also a good example for the world community due to its compliance with constitutional principles that are relevant in the context of Internet governance (subsidiarity principle/federalism, «Rechtstaat» principle, neutrality principle) and allowing the realisation of an appropriate multistakeholder model (cf. Weber/Schneider, 4.2). Recently, the Swiss government has again started new initiatives, strengthening Geneva as a place for Internet governance discussions, amongst others, by implementing the Geneva Internet Platform (GIP).

An early attempt for linking information law and Internet law shows 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 (cf. Burkert, 4.3). Looking at the manifold regulatory developments in the context of cyberlaw (as new term for Internet law), the need for an adequate global cyberspace framework becomes evident. This framework should encompass elements for an internationalisation of policy structures, elements for a multi-layer polycentric approach with multistakeholder participation, and elements for consensus on substantive guiding principles (cf. Weber, 4.4). Thereby, form must be dependent on the function of law, asking what social impacts should be caused by law (as expected from civil society). As a consequence, an increasingly informal law-making environment makes it necessary to implement governance pillars that enshrine collective efforts and enable a proper identification and understanding of worldwide problems, as well as ideas for global solutions (cf. Weber, 4.4).

Looking back to the various facets of «information» disciplines, Switzerland’s important role in the development of information technology devices in the form of hardware (computers) and software (programming languages) is well established, mainly through the research activities at ETH. During the past ten years a similarly influential function can be attributed to the Swiss initiatives in the field of Internet governance; without the Swiss involvement in the WSIS and IGF processes, the Internet ecosystem would hardly have reached its present shape.

From a purely legal perspective, Switzerland has been partly involved in the scientific debates: The movements on law and informatics of the seventies and eighties only vaguely reached Switzerland (Peter Forstmoser), probably due to the fact that it became less relevant prior to its real arrival in Swiss legal doctrine. From the nineties onwards the «St. Gallen Approach of the Information Law», mainly shaped by the ground-breaking work of Jean Nicolas Druey, attracted good attention in Central Europe; nevertheless, since Anglo-American countries were less interested in such kinds of theoretical studies, the St. Gallen approach did not reach global importance. Since the beginning of this century, information law as a legal discipline has also been (at least partly) superseded by Internet law (or cyberlaw) and, more recently, by information technology law in general (Internet of Things, big data analytics, etc.). Many legal contributions from Switzerland to these new fields of law, and to Internet governance in particular, stem from Rolf H. Weber (Zürich) who widely published on these topics and has been involved in the corresponding multistakeholder fora (IGF, EuroDIG, Swiss IGF, vice-chairman of GigaNet, [academic research network on Internet governance]). In addition to Weber, the Swiss outreach on the international level is also guaranteed through the activities of Urs Gasser (now formally as the executive director of the Berkman Center for Internet & Society). Finally, new initiatives such as the Center of Information Technology, Society and Law of the University of Zürich (Rolf H. Weber/Florent Thouvenin) and the Summer School on Internet Law of the University of Geneva (Jacques de Werra) contribute to the ongoing involvement of Swiss scholars in the discussions about information law and Internet law.