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Open EDI and law in Europe
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prevented or that this has a deterrent effect on the use of the constitutional freedom of speech". In BVerfGE 30, p. 336, 353 et seq., the court explained that the legislator "is bared from rendering publications which do not always or at least typically pose any danger to the youth subject to general prohibitions"; rather, this must be evaluated in each individual case.
311Cf. Part IV.B. above. 312Cf. Part II.B. above, in particular in relation to the shifting of criminal activities to the Worm Wide Web. 313Cf. Sieber (fn. 10) 285 et seq. 3~4preventive police action against service providers might, therefore, have been more effective than criminal preliminary investigations, however, this would face similar problematic issues (in particular as regards the qualification of the service provider as the 'disturbing party' in view of criminal offences committed by other persons.) 3~SSuch an extension is also required in relation to the elements constituting a regulatory offence in terms of Sections 119, 120 of the Act on Regulatory Offences (Ordnungswidrigkeitengesetz -- OWiG). However, an extension of the criminal law term publications in Section 1 Ss. 3 GjS must be refused for the reasons stated in Part IV.A,5. above. 316Cf. Part IV.A.I.a) above. 3~7Cf., in particular as the problems of Section 184 StGB, Part IVY.2. above. As to the individual loopholes in criminal laws cf. fu. 158 above. 3~SThis language shall be without prejudice to the question of legislative power of the Federal Government of the LAnder. However, cf. Part IV.A.6.b) 319Cf. the references above in Part I.A. (fn. 6). Respective concepts are also being elaborated in relation to questions of whether a contract is concluded in computer networks. 32°Cf. Part II.B. above.
3Zlcf. Part II.B. above. 322For an overview of the different activities of supra-national and international organizations cf. Sieber (fn. 7) 1992, p. 73 et seq.; Sieber (publisher) (fn. 7) 1994, p. 575 et seq. In view of the underlying questions, two activities must be mentioned in addition. In 1995, the European Commission invited tenders for a study on the questions of international computer law which, after the University of Wfirzburg was awarded the contract, shall be conducted by the author in the course of 1996. Cf. ABI. No 95/C 206/12. In addition, the European Council intends to review the development of a model criminal code in autumn 1996 and instructed the author to prepare a respective feasibility study. Cf. Sieber already in ZStW 103 (1991) p. 958. 523Cf. Part 1V.A.2. above. 324Forms of self-control can be found here (such as the Freiwillige Selbstkontrolle der Filmwirtschaft, the Juristenkommision der Spitzenorganisation der Filmwirtschaft, Freiwillige Selbstkontrolle Fernsehen, the Presserat and the Gremium der freiwilligen Selbstkontrolle beim T-Online Dienst) as well as government policy makers (such as the supreme state authorities for examination pursuant to the JOSchG, the Bundesprfifstelle fiir jugendgefahrdende Schriften pursuant to the GjS, or the control authorities pursuant to the Land media laws). Partially these are composed on a representative basis, i.e. of members of all levels of society, cf., e.g. Section 9 Ss. 2 GjS and as to the FSK v H a r t l i e b (fn. 182) chapter 17 margin no 6. 325Cf. Part 1V.A.2. (fn. 171) above. 326Cf. Part IV.B.3. above. 327Cf. Sieber in CR 1995, p. 100, 110 et seq. 328Cf. as to the development of an independent law Sieber in NJW 1989, p. 2569. 3Zgcf. Sieber (fn. 7) p. 73.
Book Review Electronic Commerce O p e n EDI a n d Law i n E u r o p e , b y A n d r e a s M i t r a k a s , 1997, h a r d c o v e r , K l u w e r Law I n t e r n a t i o n a l , 339 p p . , £ 7 2 . 0 0 ; NLG 185.00; US $115.00, ISBN 90 411 0489 5 The aim of this text is to discuss and present the legal issues that arise from the e m e r g e n c e of o p e n electronic data interchange. O p e n EDI allows for commercial transactions to take place in a fully automated and highly organized trading environment. It permits ad hoc o p e n electronic transactions, irrespective of geographic border and jurisdictions, among trading partners with no prior trading relationship. It therefore limits the scope for interchange agreements to be formulated in advance of any transaction. It is w i t h i n this framework that the legal issues are explored. The first part of the text identifies the u n i q u e trading e n v i r o n m e n t of o p e n EDI and the legal challenges that arise. The second part considers the legal problems in the light of existing solutions that have b e e n made available to address other applications of electronic commerce, such as closed EDI (typically used by trading partners w h o are already k n o w n to each other and have had previous business contact). Among the legal problems of o p e n EDI discussed in the book are: the admissibility and evidential value of electronic documents; the use of digital signatures and their legal values; contractual issues associated with the time and place of the formation of agreements; issues of tax law that mainly c o n c e r n the preservation of c o m p u t e r records and commercial documents; and the changing behaviour of trading partners as o p e n EDI b e c o m e s more widespread. The author argues that the legal solutions that can be used in a closed EDI e n v i r o n m e n t are not suitable for use in o p e n EDI. Technical progress must be c o m p l e m e n t e d by progress in the legal instruments w h i c h address o p e n EDI issues. The author concludes that a framework is n e e d e d to address the legal issues in an international perspective. Responding to the legal problems of o p e n EDI depends o n the use of international law and IT. Available f r o m : K l u w e r Law I n t e r n a t i o n a l , D i s t r i b u t i o n C e n t e r , PO B o x 322, 3300 A l l D o r d r e c h t , The N e t h e r l a n d s ; o r i n t h e U n i t e d States a n d C a n a d a f r o m : K l u w e r Law I n t e r n a t i o n a l , 675 M a s s a c h u s e t t s A v e n u e , C a m b r i d g e , MA, 0 2 1 9 9 , USA.
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Computer Law & Security Report Vol. 14 no. 1 1998 ©1998, Elsevier Science Ltd.
Law
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II
prevented or that this has a deterrent effect on the use of the constitutional freedom of speech". In BVerfGE 30, p. 336, 353 et seq., the court explained that the legislator "is bared from rendering publications which do not always or at least typically pose any danger to the youth subject to general prohibitions"; rather, this must be evaluated in each individual case.
311Cf. Part IV.B. above. 312Cf. Part II.B. above, in particular in relation to the shifting of criminal activities to the Worm Wide Web. 313Cf. Sieber (fn. 10) 285 et seq. 3~4preventive police action against service providers might, therefore, have been more effective than criminal preliminary investigations, however, this would face similar problematic issues (in particular as regards the qualification of the service provider as the 'disturbing party' in view of criminal offences committed by other persons.) 3~SSuch an extension is also required in relation to the elements constituting a regulatory offence in terms of Sections 119, 120 of the Act on Regulatory Offences (Ordnungswidrigkeitengesetz -- OWiG). However, an extension of the criminal law term publications in Section 1 Ss. 3 GjS must be refused for the reasons stated in Part IV.A,5. above. 316Cf. Part IV.A.I.a) above. 3~7Cf., in particular as the problems of Section 184 StGB, Part IVY.2. above. As to the individual loopholes in criminal laws cf. fu. 158 above. 3~SThis language shall be without prejudice to the question of legislative power of the Federal Government of the LAnder. However, cf. Part IV.A.6.b) 319Cf. the references above in Part I.A. (fn. 6). Respective concepts are also being elaborated in relation to questions of whether a contract is concluded in computer networks. 32°Cf. Part II.B. above.
3Zlcf. Part II.B. above. 322For an overview of the different activities of supra-national and international organizations cf. Sieber (fn. 7) 1992, p. 73 et seq.; Sieber (publisher) (fn. 7) 1994, p. 575 et seq. In view of the underlying questions, two activities must be mentioned in addition. In 1995, the European Commission invited tenders for a study on the questions of international computer law which, after the University of Wfirzburg was awarded the contract, shall be conducted by the author in the course of 1996. Cf. ABI. No 95/C 206/12. In addition, the European Council intends to review the development of a model criminal code in autumn 1996 and instructed the author to prepare a respective feasibility study. Cf. Sieber already in ZStW 103 (1991) p. 958. 523Cf. Part 1V.A.2. above. 324Forms of self-control can be found here (such as the Freiwillige Selbstkontrolle der Filmwirtschaft, the Juristenkommision der Spitzenorganisation der Filmwirtschaft, Freiwillige Selbstkontrolle Fernsehen, the Presserat and the Gremium der freiwilligen Selbstkontrolle beim T-Online Dienst) as well as government policy makers (such as the supreme state authorities for examination pursuant to the JOSchG, the Bundesprfifstelle fiir jugendgefahrdende Schriften pursuant to the GjS, or the control authorities pursuant to the Land media laws). Partially these are composed on a representative basis, i.e. of members of all levels of society, cf., e.g. Section 9 Ss. 2 GjS and as to the FSK v H a r t l i e b (fn. 182) chapter 17 margin no 6. 325Cf. Part 1V.A.2. (fn. 171) above. 326Cf. Part IV.B.3. above. 327Cf. Sieber in CR 1995, p. 100, 110 et seq. 328Cf. as to the development of an independent law Sieber in NJW 1989, p. 2569. 3Zgcf. Sieber (fn. 7) p. 73.
Book Review Electronic Commerce O p e n EDI a n d Law i n E u r o p e , b y A n d r e a s M i t r a k a s , 1997, h a r d c o v e r , K l u w e r Law I n t e r n a t i o n a l , 339 p p . , £ 7 2 . 0 0 ; NLG 185.00; US $115.00, ISBN 90 411 0489 5 The aim of this text is to discuss and present the legal issues that arise from the e m e r g e n c e of o p e n electronic data interchange. O p e n EDI allows for commercial transactions to take place in a fully automated and highly organized trading environment. It permits ad hoc o p e n electronic transactions, irrespective of geographic border and jurisdictions, among trading partners with no prior trading relationship. It therefore limits the scope for interchange agreements to be formulated in advance of any transaction. It is w i t h i n this framework that the legal issues are explored. The first part of the text identifies the u n i q u e trading e n v i r o n m e n t of o p e n EDI and the legal challenges that arise. The second part considers the legal problems in the light of existing solutions that have b e e n made available to address other applications of electronic commerce, such as closed EDI (typically used by trading partners w h o are already k n o w n to each other and have had previous business contact). Among the legal problems of o p e n EDI discussed in the book are: the admissibility and evidential value of electronic documents; the use of digital signatures and their legal values; contractual issues associated with the time and place of the formation of agreements; issues of tax law that mainly c o n c e r n the preservation of c o m p u t e r records and commercial documents; and the changing behaviour of trading partners as o p e n EDI b e c o m e s more widespread. The author argues that the legal solutions that can be used in a closed EDI e n v i r o n m e n t are not suitable for use in o p e n EDI. Technical progress must be c o m p l e m e n t e d by progress in the legal instruments w h i c h address o p e n EDI issues. The author concludes that a framework is n e e d e d to address the legal issues in an international perspective. Responding to the legal problems of o p e n EDI depends o n the use of international law and IT. Available f r o m : K l u w e r Law I n t e r n a t i o n a l , D i s t r i b u t i o n C e n t e r , PO B o x 322, 3300 A l l D o r d r e c h t , The N e t h e r l a n d s ; o r i n t h e U n i t e d States a n d C a n a d a f r o m : K l u w e r Law I n t e r n a t i o n a l , 675 M a s s a c h u s e t t s A v e n u e , C a m b r i d g e , MA, 0 2 1 9 9 , USA.
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Computer Law & Security Report Vol. 14 no. 1 1998 ©1998, Elsevier Science Ltd.