Civil Litigation, Access to Government-Held Information, and Coordination of Public and Private Enforcement in the Czech Republic

To correct the historical suppression of environmental information under communist rule, the Czech Republic has instituted several new laws granting citizen access to government-held information. This access should facilitate civil litigation by providing evidence in court for establishing causality in a country where practically everyone feels the effects of broad and severe environmental degradation. However, poor de facto citizen access and citizens'; traditional distrust of information severely limits litigation activity. Similarly, this paper examines the joint use of a privately-initiated ex post liability policy (i.e., tort litigation) and a state-initiated ex post liability policy (i.e., penalties). In particular, it explores a potential exchange of information between a government enforcer and plaintiffs, where the government enforcer provides information on the causality of harm to plaintiffs and plaintiffs provide information on the level of harm to the government enforcer. With more accurate information on both causality and damages, the joint use of state and private enforcement should lead to more efficient outcomes. This paper finds great potential for such improvement given the limited use of privately-provided information on harm and poor de facto access to government-provided information on environmental matters.     

Donor-conceived individuals and access to information about their genetic origins: the relevance and role of rights

The discourse of rights has increasingly been used to frame debates about access to information for donor-conceived individuals. This article seeks to clarify the moral and legal basis upon which human rights are relevant to this issue. It outlines the elements of a substantive rights-based approach which is then used to resolve the competing rights of a donor and a donor-conceived individual. Three arguments are offered. First, donor anonymity must be prohibited prospectively and donor-conceived individuals must be entitled to information about their genetic parents. Secondly, a context-sensitive application of a human rights-based approach allows retrospective access to non-identifying information but precludes retrospective access to identifying information where a donor wishes to remain anonymous in circumstances where anonymity was guaranteed at the time of donation. Finally, despite this finding, a rights-based approach requires states to actively encourage such donors to consent to the release of identifying information and to take reasonable steps to support donor-conceived individuals in circumstances where donors refuse to provide their consent.     

Blurred vision: How supreme court FOIA opinions on invasion of privacy have missed the target of legislative intent

The framers of the Freedom of Information Act believed that in order to make informed decisions concerning self‐rule in the democracy, citizens needed access to government information. However, the law also acknowledges the importance of protecting privacy—two of the FOIA's exemptions allow federal agencies to withhold information that would invade the privacy of individuals. The purpose of this article is to explore the legal conflict between an individual's right to privacy and the public interest in disclosure of government information. In an examination of seven United States Supreme Court decisions on this subject, this article questions whether the Court has fairly balanced the conflicting values of access and privacy within the guidelines established by Congress in the FOIA.     

信息进入自由的纯粹工具主义分析

本文通过重新解析彼得对信息进入自由的论证过程,提出了信息进入权利的权利属性和权能结构。借助彼得的工具主义模型和彼得对知识产权哲学的独占主义信条的批判,我提出了信息法律的纯粹工具主义分析模型。我的讨论支持下列结论：（１）信息进入自由的权能结构是信息法律的主要内容,信息法律就是配置信息的权利资源的法律,追求权能结构设计的效率,就是追求这种权利资源的配置效率;（２）纯粹工具主义的分析结构中不存在普遍道德或者终极的正义命令;（３）正当程序和分权机制是维护信息法律“正义”品格的基础。     

The security of access to accounts under the PSD2

The revised Payment Services Directive (‘PSD2’) has been adopted to stimulate the development of an integrated internal market for payment services. In particular, it facilitates payment initiation services and account information services by granting the providers of these services access to the accounts of the payment service users. At the same time, the recitals state that the PSD2 guarantees a high level of consumer protection, security of payment transactions and protection against fraud.This paper answers the following question: To what extent does the access to accounts of the payment initiation service providers and account information service providers balance the development of the market for payment services with the security of the payment account and the privacy of the user? An analysis of the PSD2 shows that the development of the market for payment services has a higher priority. Security and privacy are ultimately subordinate.First, the PSD2 does not adequately protect the personal data of the users. The definition of ‘account information service’ is broad and covers a wide range of services. This allows the payment service providers to circumvent the limitations of the access to accounts.Next, the payment service providers have a ‘fall back option’ that allows ‘screen scraping’ if the dedicated interface is not functioning properly. Although this access is constrained by several safeguards, the fall back option gives the payment services provider unlimited access to the account of the user.Finally, the payment service providers have considerable freedom to arrange their authentication process as they see fit. The banks seem to be required to trust this process. The PSD2 and regulatory technical standards do not demand that a bank is able to verify the authentication or the integrity of the payment order.     

How Transparent are EU ‘Comitology’ Committees in Practice?

Much of the debate on transparency is normative in nature: more transparency is ‘good’ from the perspective of democratic accountability. After all, without information on what decisions are being taken and by whom, it will not be possible for various accountability forums to hold actors to account. This article goes beyond the rhetoric on the need for more transparency in the political system of the EU and examines, in practice as a matter of empirical research, how much transparency there really is. It also goes beyond a purely legal approach to access to information that depends upon the active participation of citizens and others in challenging refusals by specific institutions to grant access to specific documents. We are interested rather in the question as to what extent the institutions are systematically and pro‐actively providing access to their documents via the internet. We focus on the Register of Comitology of the European Commission as a relatively limited case study and, within this context, limit ourselves further to a study of all the documents published in the latest year for which a benchmark was available—2005. Are all comitology documents that exist in fact made available through this public register?     

The violence of silence: some reflections on access to information, public participation in decision-making, and access to justice in matters concerning the environment

The proposition put forth in this paper is that whether—and the extent to which—harm or potential harm to the environment (its natural resources, living beings, and their ecosystems) is identified, resisted, mitigated, or prevented is linked to the nature and scope of public access to information, participation in governmental decision-making, and access to justice—which are often referred to as “environmental due process” or “procedural environmental rights.” Using examples in the United States of attacks on law school clinics and denial of standing in court, this paper argues that restrictions on public access to information, participation in decision-making, and access to justice create legacies and “cultures of silence” that reduce the likelihood that future generations will be willing and able to contest environmental harm.     

Psycho-social, ethical and legal arguments for and against the retrospective release of information about donors to donor-conceived individuals in Australia

In the February 2011 report on its inquiry into the past and present practices of donor conception in Australia, the Australian Senate Legal and Constitutional Affairs References Committee called for the introduction of legislation to regulate donor conception in all jurisdictions that do not have it in place "as a matter of priority". It further called for the establishment, "as a matter of priority", of a national register of donors to enable donor-conceived individuals to access identifying information about their donor. The Senate Committee left open the question as to whether the legislation and central register should have retrospective effect. This article focuses upon that question. It shows that arguments concerning the privacy, confidentiality and anonymity of some donors who may wish to remain anonymous are outweighed by the manifest injustice faced by donor-conceived individuals who are denied access to such information, as well as their families and donors who wish to exchange this information,     

Use of artificial intelligence by tax administrations: An analysis regarding taxpayers’ rights in Latin American countries

In this paper, we analyze taxpayers’ rights to have access to artificial intelligence algorithms and formulas that have been used by tax administrations in Latin America. We consider two applications of artificial intelligence: in the characterization of taxpayers’ risk and the robotization of tax audit actions. Very little has been described in the literature on how these technologies coexist with taxpayers’ rights, especially in the exercise of their right to defense in administrative and contentious proceedings. The evidence reflects that, although in the countries under study the access to these techniques is not clearly regulated, general principles derived from the fundamental rights declared by each country make it possible to safeguard taxpayers’ right to access this information.     

Technological innovation within the Spanish tax administration and data subjects' right to access: An opportunity knocks

In this paper, we analyse the data subjects' right to access their personal data in the context of the Spanish Tax Administration and the legal consequences of the upcoming General Data Protection Regulation. The results show that there are still difficulties related to the scope of this right, the establishment of proper storage criteria, and in the procedures used by the data controllers to provide accurate information to the data subjects. This situation highlights the necessity to incorporate such technological innovation as metadata labelling and automatic computerised procedures to ensure an optimum management of the data subjects' access to their tax related personal information.     

Privacy Act; exempt record system--Office of the Secretary, DHHS. Notice of proposed rulemaking

The Office for Civil Rights of the Department of Health and Human Services maintains a system of records entitled "Complaint Files and Log. HHS/OS/OCR." The Department intends to exempt this system from certain provisions of the Privacy Act, 5 U.S.C. 552a. The proposed exemption is authorized by subsection (k)(2) of the Privacy Act, which applies to investigative materials compiled for law enforcement purposes. The Office for Civil Rights (OCR) is authorized to gather information for civil and administrative law enforcement purposes pursuant to several statutes requiring nondiscrimination in programs or activities receiving Federal financial assistance. In order to maintain the integrity of the OCR investigative process and to access to complete and accurate information, the Department proposes to exempt this system, under subsection (k)(2), from the notification, access, correction and amendment provisions of the Privacy Act. The Department is requesting public comments on the proposed exemption.     

Data Theft? Cybercrime and the Increasing Criminalization of Access to Data

The use of computers in the commission of crime, so-called ??cybercrime??, presents a considerable challenge to law enforcement. Central to the prosecution of cybercrime is the offence of unauthorised access to a computer, or ??hacking??. Originally conceived of as analogous to trespass, the trend in some jurisdictions has been toward punishing access to computer data per se. This issue also arises under the Council of Europe Convention on Cybercrime which criminalizes ??offences against the confidentiality, integrity and availability of computer data and systems??. As the criminal law traditionally provides protection only to limited forms of information, the increasing use of the criminal law to protect computer data therefore confers on it a status not enjoyed by information stored in other forms. Drawing upon the laws of Australia, the United Kingdom and the United States, this article explores the increasing criminalization of access to computer data. It describes the evolution of cybercrime laws and considers ways in which problems of over breadth may be avoided. Questions will also be raised as to the appropriate role of the criminal law in protecting information.     

论“接触权”——著作财产权类型化的不足与克服

随着技术保护措施成为网络时代著作权法不可或缺的组成部分，“接触权”从公众接触政府信息的人权变成为了著作权人控制利用人接触作品的“私权”。当对作品的主要利用方式从占有载体转为直接体验内容后，著作权人是否享有控制他人接触作品内容的能力就显得相当重要，“接触权”突破了建构于18、19世纪的传统著作财产权体系，其正当性源自对网络环境下作品利用模式的适应，是应对科技发展所做出的合理设计。     

State secrets: access to information under the Human Reproductive Technology Act 1991 (WA)

Many Australian children have a biological father who gave his sperm so that the child's mother could conceive and raise them. Many of these children, and their parent(s), do not know who that biological father is. However, some want to know. The article examines the Western Australian law on access to information about the identity of parties in these arrangements. It is argued that there is an implied right to access identifying information where all parties consent to the exchange of information; that this right has been ignored in official and medical practice and opportunities for good record-keeping missed; and that the current law allows a parent to give consent to the exchange of identifying information on behalf of their child at any time after the child is conceived.     

论政府的信息形成权及当事人义务

在政府信息公开问题背后,隐藏着另外一个重要问题——政府信息的来源和收集。政府具有信息形成权,其合法性基础在于正确行政决策和信用社会建构以及政府保护私人权利和公共利益之管制权的有效运用的需要。政府具有自主形成信息的权力,也对公民、法人和其他组织享有强制性信息申报请求权、信息强制保留请求权、信息强制披露请求权、信息调查权、信息档案形成权和保持权、信息技术使用权、获得信息预算支持权以及对违法信息收集的制裁权。政府的信息形成权的运用也给相关当事人带来了负担和义务,因此在信息领域应妥当处理政府公共权力与私人权利的平衡关系及合理地运用平衡技术。     

Illegal access to information systems and the Directive 2013/40/EU

Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013, on attacks against information systems, came into force on 3 September 2013, replacing Council Framework Decision 2005/222/JHA. It maintains existing offences and criminalizes new activities such as illegal interception and the usage of certain tools for committing offences. The offence that is the focus of this article – illegal access to information systems – is set out in Article 3. It represents a change from the wording of Art 2 (2) of the Framework Decision 2005/222/JHA in that under Art 3 of the Directive the incrimination of illegal access to information systems now depends upon whether such access infringes a security measure. This paper provides an overview of the impetus for the introduction of cybercrime laws and analysis of the key provisions of the Directive before exploring whether the wording of Art 3 is a sensible legislative approach.     

From electronic health records to personal health records: emerging legal issues in the Italian regulation of e-health

In 2012, the Italian Legislator has provided an appropriate legal framework for the realisation of the national Electronic Health Records (EHR) system, in which the patient plays a pivotal role: with the implementation of the Fascicolo sanitario elettronico (FSE), patients will have access to their EHRs through the online platform, and decide which data to share and with whom. In this perspective, one of the most interesting innovations is the so-called ‘taccuino’, a digital space of patients’ FSE in which they can autonomously record data and information relating to their health. Patients’ ability to access their own health data and EHR at any time and to enter information by themselves in a personal area is a unique form of power at a European level, but their legal consequences are still vague. The aim of this contribution is to offer a first review of the Italian e-health reform, showing the most critical aspects.     

The evolution of computer/privacy concerns: Access to government information held in the balance∗

Computers are a mainstay of most record systems at virtually all levels of government. The vast accumulation of personal information by governments has raised concerns about the erosion of personal privacy caused by the speed and efficiency of computers. For more than 30 years, realistic and sometimes exaggerated concerns about the proper role of computers in society have driven the public policy debate, resulting in a raft of legislation designed to protect the privacy of individuals about whom government keeps records.

But these computer /privacy concerns threaten legitimate public and media access to government records. The dangers to access were underscored by the Supreme Court in a holding that publicly available records regained privacy interests when drawn together in a centralized government computer. In other words, the form in which records were kept rather than their content could control access.

This article suggests that understanding the origin and context of the computer /privacy conflict will better prepare access proponents to deal with attempts to curtail legitimate access to government information because of privacy concerns.     

Men and Women’s Perceptions of Justifications of Wife Beating: Evidence from Pakistan Demographic and Health Survey 2012–13

Pakistani women are vulnerable to all kinds of violence due to the patriarchal setup of society. We examined the justification of wife beating by women and men of reproductive group that comprised of 15–49 years of age by doing secondary data analysis on nationally representative cross- sectional survey data from the Pakistan Demographic and Health Survey, 2012–13. The analysis was conducted on randomly selected 13,558 ever- married women and 3134 ever- married men representing all the four provinces of Pakistan including Gilgit Baltistan and federal capital Islamabad. The data showed that women justified wife beating more as compared to men. The findings of multivariable logistic regression depicted that women living with partners, having no access to information, lacking autonomy, and no control over income were more likely to justify wife beating while men who did not have access to information were more in favor of this acts. These findings may help in devising strategies to change the mindset regarding justification of wife beating in Pakistan.     

裁判文书网上公开中的隐私问题研究

随着法院信息化建设的推进，裁判文书的公开方式呈现出从纸质到网络的发展趋势。加大了隐私扩散风险。针对法院是否应在网上公开裁判文书及公开的程度等问题，存在着三种观点：禁止说、区别说及同等说。为平衡公众知情权与个人隐私之间的冲突，对裁判文书中记载的敏感的个人信息或有损声誉的事实，需依据裁判文书公开的目的，决定是否将之公开在网上。同时，法院也应采取积极措施应对公众对隐私问题的关注，同等对待纸质公开和网上公开。