| Cover |
- The Two Homes of
SCRIPT-ed
Wiebke Abel, Shawn H.E. Harmon and Julie Robinson.
This image, The Two Homes of
SCRIPT-ed, depicts the foundational and the ethereal, both
integral to the journal. The dome of Old College at the University
of Edinburgh represents its real-world home and physical anchor.
The binary code represents its content and the dynamism inherent
in online publishing. The grey background represents the typical
leaden skies of Scotland.
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| Editorial |
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| Peer-Reviewed Articles |
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A Private Law Approach to Privacy;
Mandatory Law Obliged?
Colette Cuijpers, pp.304-318
This article contests the general
assumption that Directive 95/46/EC concerning the processing of
personal data and the free movement of such data requires
implementation into mandatory rules of law. In this respect,
several arguments are presented in order to stimulate discussion.
This discussion is important because the mandatory or regulatory
character of the rules laid down in Directive 95/46/EC influence
the nature of rights over data in relation to the principle of
freedom of contract. Moreover, it touches upon some core issues
regarding European law such as the protection of our fundamental
rights and freedoms; the scope of these rights, and freedoms and
the correlation between them; as well as the scope of the European
Union's authority to harmonise rules concerning data protection.
Furthermore, the assumption that Directive 95/46/EC requires
implementation into mandatory rules of law is the main point of
resistance against a private law approach to the right to data
protection. If this assumption is successfully disproved, it will
clear the way for a wide-ranging discussion as to whether a
private law approach to the right to data protection will lead to
a more effective system of privacy protection in practice.
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Emerging Global Networks for Free
Access to Law: WorldLII’s Strategies 2002-2005
Graham Greenleaf, Philip Chung and Andrew Mowbray, pp.319-366
Those who value free access to law
need to respond to the increasingly global nature of legal
research, and the fact that most countries still do not have
effective facilities for free access to law. The free access to
law movement, centred around University-based Legal Information
Institutes (LIIs), is assisting and encouraging the development of
free access law facilities in many countries in the developing
world. While doing so, it is also creating a global network of
interconnected free-access legal research facilities on the
Internet. This network is becoming comparable to the global legal
research facilities provided by the multinational legal publishers.
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Can Article 5.7 of the WTO SPS
Agreement be a Model for the Precautionary Principle?
Niu Huei-Chih, pp.367-388
The aim of this paper is to
suggest that the mechanism set up in Article 5.7 of the Agreement
on the Application of Sanitary and Phytosanitary Measures
(“SPS Agreement”) can be used as a
model to implement the precautionary principle outside the
jurisdiction of the WTO.
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The Protection of Personally
Identifiable Information (PDF only)
DeLiang Liu, pp.389-406
Personally identifiable information (PII) can be defined as any piece of information that can, directly or indirectly and unrelated to the public interest, be used to identify a natural person. Property rights associated with PII include the right to assign the commercial value of the PII. These are relatively new rights which have emerged only as a result of the rise of commercial exploitation of PII. Currently, laws safeguard personality rights, but not necessarily property rights attaching to PII. However, drawing on philosophical thinking, particularly Hegel’s views on private property and the value of individual freedom, there is obviously an interest in protecting rights in PII. Unfortunately, existing legal tradition and mechanisms, particularly those in the USA, are inadequate and do not provide coherent mechanisms, particularly as compared to those in Europe. In future, the protection of rights in PII should be based on the value of PII. Thus, if the PII holds value relating to the subject’s personality and property interests, then both personality rights and property rights should be protected in association with the PII. Conversely, if the PII contains value relating only to the subject’s property interest, then only property rights should be granted and enforceable. Further, in this information age, every single example of PII has a potential commercial value, making it important for property rights to be defended.
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Net Neutrality and Consumer Access to
Content
Christopher T Marsden,pp.407-435
‘Net Neutrality’ is a very heated
and contested United States policy principle regarding access for
content providers to the Internet end-user, and potential
discrimination in that access where the end-user’s ISP (or another
ISP) blocks that access in part or whole. The suggestion is that
the problem can be resolved by either introducing greater
competition, as for instance in certain Western European nations
under the Telecoms Framework 2002 (as proposed for amendment
2007), or closely policing conditions for vertically integrated
service, such as VOIP. This assumes that competition in the ‘local
loop’ or ‘last mile’ to the end-user subscriber provides a choice
of platform, and therefore rigorous telecoms competition
regulation resolves the issue in Europe. However, that may not be
the whole story. The question this paper aims to answer is: Are
Internet Service Providers motivated to require content providers
to pay for superior service via lower levels of service for the
same price (e.g. blocking or “throttling” content) or higher price
for higher Quality of Service? Can abusive discrimination take
place even where an ISP does not have dominance? I consider market
developments and policy responses in Europe and the United States,
conclusions and regulatory recommendations.
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Identity Theft and Systems Theory: The
Fraud Act 2006 in Perspective
Anne Savirimuthu and Joseph Savirimuthu, pp.436-461
The Fraud Act 2006 provides us
with an instrument through which we can now target emerging online
criminal threats posed by identity thieves. This paper argues for
a nuanced approach to the debates regarding the amenability of
online criminal activity to centralised regulatory oversight.
Managing risks in a decentralised and distributed network
environment has frequently descended into a question of how
liability rules can be harnessed to promote trust and security. We
argue that a deeper understanding of the governance implications
of managing complex systems is an important prerequisite to
coherent policymaking. The analysis advocated in the paper has a
number of implications for the way we understand and conceptualise
information security governance in the online environment. We
identify three. First, law is a necessary but not a sufficient
governance instrument in managing the emerging threats on the
Internet. Second, identity theft is a social not technologically
driven problem. Third, emerging networks for information sharing,
the evolution of specialised technological solutions and increased
end-user participation suggest an important trend in the way
online threats can be conceptualised and managed. The central
thesis of the paper is that Luhmann’s ideas of autopoiesis and
social systems may provide us with a better understanding of
governance in the online environment than what seems to be
afforded by current analysis of the Fraud Act 2006.
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| Analysis |
- Robots Bowling Alone: Evolving
Post-Technological Humans
David Koepsell, pp.462-467
It is clear that some are more adaptive to the rate of
technological progress than others. Popular culture and homes
across America are rife with angst and alienation. Look for the
flashing “12:00” beacons on underused DVD players, or more
likely, VHS players – or maybe even Betamax. Our technology is
not comfortably integrated with our lives if we fear programming
a mere clock. Even among those of us who feel comfortably
integrated with our technologies, it is safe to say that there
is creeping alienation in the sense that the technology
sometimes overwhelms the “human” in uncomfortable ways. Things
move too fast, we become inundated, our senses are overwhelmed,
and our face-to-face human relationships take a back seat,
sometimes.
- Copyright and Research: A
Different Perspective
Jan Velterop, pp.468-472
Recently, two articles have appeared in SCRIPT-ed on ‘Copyright
and Research’. One by Kevin Taylor, giving the perspective of an
academic publisher (SCRIPT-ed 4:2), and one by Andrew Adams,
from the perspective of an ‘archivangelist’ (SCRIPT-ed 4:3). The
latter is a critique of the former. Neither article sheds much
light on the role copyright actually plays in publishing
research results in peer-reviewed journals. Taylor brings
authors’ remuneration into the discussion, a concept quite alien
to most primary research literature, where recognition and
citation are the coin of the realm, and Adams seems to argue
that copyright somehow impedes open access without explaining
how or why that should be the case. This brief article aims to
address the actual role copyright plays in the primary research
literature and the appropriateness of that role.
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