Viktor Mayer-Schönberger, Informationsrecht als Gestaltungsaufgabe: Eine transatlantische Begegnung, in: Rainer J. Schweizer/Herbert Burkert/Urs Gasser (eds.), Festschrift für Jean Nicolas Druey, pp. 853–868 (Zurich/Basel/Geneva 2002).
In 2002 Jean Nicolas Druey, an emeritus professor of civil and business law at the University of St. Gallen, celebrated his 65th birthday. To this event, scientific colleagues, collaborators and several of his students published a commemorative volume with the title «Festschrift für Jean Nicolas Druey». This volume is divided into (1) principles, (2) civil law, code of obligations and international private law in general, (3) corporate law and law relating to groups, and (4) information law. Information law is a field that was strongly influenced by Jean Nicolas Druey (cf. Druey, 2.1). The contribution by the Austrian Mayer-Schönberger analysing information law under transatlantic aspects has, therefore, also been included in this anthology.
At the beginning of the third millennium, almost 100 million people were «online» in the United States. Therefore, based on modern and integrated communications networks, millions of people were connected with each other. The information and communications environment has been categorised as a new field of expertise. In the United States the term «cyberlaw» was coined with the intention of establishing a relation between the Internet and cyberspace.
The traditional term «information law» has not gained acceptance in the transatlantic latitudes. The term sounds too much like regulation of information and media freedom. Mayer Schönberger’s text is devoted to information (or cyber) law from an American point of view. With this perspective, Mayer-Schönberger analyses the content and the function of the afore-mentioned legal fields and underlines their importance.
Viktor Mayer-Schönberger (born 1966) is a professor of Internet governance and regulation at the Oxford Internet Institute. Mayer-Schönberger has published several books, as well as over a hundred articles and book chapters. His research focuses on the role of information in the networked economy. Furthermore, he has done research in data privacy, governance in virtual worlds, e-government and big data.
In the first section of the text Mayer-Schönberger describes the history of the term «cyberlaw». It all started in 1996. President Clinton and his political party wanted to liberalise the regional and local telecommunications market. At the last moment the Republicans introduced a legislation called the «Communication Decency Act» in order to clean the Internet of dirty content. As a consequence, for the first time on the federal level, cyberlaw was «created». The Internet pioneer John Perry Barlow represented another position; he stated that regulation of the Internet was not needed since the World Wide Web has to be seen as an independent world (cf. Weber, 4.4).
Nowadays, both extreme positions seem to be antiquated. In 1997 the Supreme Court ruled that the Communication Decency Act contradicts the United States Constitution. Barlow’s (broad) view was indeed supported by a few exponents; however, some U.S. courts did not support this approach. Cyberlaw must be qualified as a cross-sectional matter that includes the legal rules which regulate the activities of Internet users. Therefore, the freedom of expression and of information, intellectual property, data protection and contract law can be affected by cyberlaw.
In a further section Mayer-Schönberger describes different arguments concerning cyberlaw as a cross-sectional discipline. He refers to Frank Easterbrook, a judge of the United States Court of Appeals for the Seventh Circuit, who heavily criticised this approach. Easterbrook stated that cyberlaw as a cross-sectional body is not prepared to open up new perspectives. Mayer-Schönberger disagrees with that point of view and underlines the arguments of Lawrence Lessig, a U.S. Harvard law professor. According to Lessig, the mixture of law and cyberspace is important for the entire legal system. The focus of (cyber) law must be based on its function as a social regulatory instrument. In cyberspace, however, the law as such can be overruled since the regulatory function is overtaken by the technical infrastructure; therefore the important topic is to regulate the technical infrastructures.
In addition, Mayer-Schönberger has replicated the theorem of Coase. Referring to Coase he outlines that cyberspace leads to many economic transactions on a global virtual market place. Transactions that are made globally are based on trust of the involved partners. If there is a lack of trust, the law should assume this function. But, the transaction costs must be low since e-commerce transactions are often based on high volumes and low prices. In view of these facts, the law as such is not an appropriate «economic» solution.
Therefore, the markets are invited to define alternatives; an example is the private organisation ICANN that provides alternative dispute procedures for domain names. Another alternative is a marketplace reputation system, for example from eBay. Mayer-Schönberger states that the implementation of such reputation systems can immensely reduce the fraud rate.
Law and economics are also fundamental for the next type of Mayer-Schönberger’s arguments. The respective approach focuses on the information and its relationship with the citizens. In the United States, two lines of perceptions have been implemented, namely in respect to the «protection of intellectual property» and the «data protection/right to informational self-determination».
According to Mayer-Schönberger, the progressing digitisation of intellectual creations leads to a situation that makes worldwide distribution of copyrighted content over the Internet possible. But the creators of the copyrighted work have problems to enforce their subjective rights. Therefore, formal protection of property rights still exists; however, in times of decentralised and non-controllable peer-to-peer networks, it is hardly possible to enforce these rights. Nevertheless, the modern information and communications technologies can guarantee technical protection of creations (i.e. a combination of hardware and software is (technically) in a position to prevent illegal distribution). Producers as well as rightsholders have a profound interest in establishing such a technical protection regime. Since full transparency of transactions is necessary for such protection of intellectual property, privacy and anonymity can no longer be available.
Furthermore, digitisation has an impact on personal data; collecting, processing, recording and transferring personal data is no longer difficult to execute. It is questionable whether the rightsholders can enforce their legal claims. Mayer-Schönberger replicates Kenneth Laudon who proposed a quasi-ownership right for personal data. The enforcement of subjective quasi-ownership rights in a worldwide market of personal data should be done – once more – by technical measures.
In a further section, Mayer-Schönberger describes European information law. He indicates that the above-mentioned arguments are also discussed in a European context. However, the information is interpreted more as information relations than law of information technique. In this context, Mayer-Schönberger refers to Jean Nicolas Druey who declares that law consists of norms, and therefore law is a special type of information. Since the American and European perspectives differ from each other, a conflict area exists. Mayer-Schönberger favours the European perspective that focuses on the relationship between information and individuals. Since this relationship is formally recognised by the legal system, it can be qualified as subjective right. However, in a digitised world it is not understandable why numerous «types» of information exist; therefore, according to Mayer-Schönberger, it should be discussed whether it would make sense to establish a common structure for subjective rights on information.
From a transatlantic point of view, rights of disposal of information that include a personality right do not exist. Furthermore, Americans do not have subjective rights that are comparable with rights in terms of protection of their image. Another fact exists in the different data protection regulations; there is no harmonised regulation on a federal level. In addition, the American legal culture focuses on the model of property rights. Therefore, subjective rights on information are generally understood as property rights.
Consequently, Mayer-Schönberger summarises that the information law in the United States relates to a concrete and political aim. In contrast, European information law intends to hinder contradictions and inconsistencies in the legal system. The mentioned differences between the U.S.A. and the European legal systems still exist. For example, there is quite a different understanding of data protection or of rights of disposal.
You can find a scan (PDF) of the original text here: MayerSchoenberger – Informationsrecht als Gestaltungsaufgabe.