European national news

This article tracks developments at the national level in key European countries in the area of IT and communications and provides a concise alerting service of important national developments in key European countries. It is co-ordinated by Herbert Smith Freehills LLP and contributed to by firms across Europe. Part of its purpose is to complement the Journal's feature articles and briefing notes by keeping readers abreast of what is currently happening “on the ground” at a national level in implementing EU level legislation and international conventions and treaties. Where an item of European National News is of particular significance, CLSR may also cover it in more detail in the current or a subsequent edition.     

Police–victim engagement in building a victim empowerment approach to intimate partner violence cases

Intimate partner violence (IPV) has been highlighted as a priority for UK governments and criminal justice agencies since the 1990s. However, whilst generating significant policy and procedural responses, the overall impact continues to be criticised. This paper examines contemporary approaches to IPV identification and response, highlighting the limitations within victim engagement and empowerment. It then moves on to specific developments and theories in victimology, demonstrating how research into victim engagement is emerging and could be utilised in practice to enhance victim empowerment. It argues that policy and procedure based upon an enhanced victim empowerment approach would be necessary in striving for positive criminal justice outcomes and for increasing victim satisfaction.     

论天气预报的法律性质

对天气预报的法律性质,理论和实践中存在很多不同的认识.有学者认为天气预报是一种著作权客体,有学者认为它是一种专利权客体,还有学者将它与商业秘密进行类比.笔者从法学理论的一般推理出发并利用法经济学的成果分析后认为:天气预报应当在坚持其公有信息性质的基础上,一定程度的产权化;产权化后天气预报属于一种特殊的知识产权,应当由专门立法进行保护.在此基础上作者对天气预报产权化应遵循的原则进行了探究,提出了三点建议.     

处置突发性公共事件时应对新闻传媒的策略

在处置突发性公共事件时,新闻传媒的作用不可忽视。为保证妥善处置突发性公共事件,公安机关应当认真研究应对新闻传媒的策略,准确把握突发性公共事件中新闻传媒的介入时间、方式,以引导新闻传媒正确发挥舆论导向作用。     

To Disclose or not to Disclose? That is the Question in Collaborative Law

Collaborative Law (CL) is a dispute resolution process increasingly used in family law and divorce designed to encourage problem solving negotiations by parties represented by counsel. Many states have adapted legislation to authorize and facilitate CL and thousands of lawyers have been trained in the CL process. CL lawyers and participants sign a Participation Agreement in which they agree that the lawyers will be disqualified if the CL process terminates without settlement. They also promise full and voluntary disclosure of information. The extent of the obligation of disclosure is, however, unclear. Through analysis of an extended hypothetical divorce settlement negotiation, this article advocates that CL lawyers and clients should assume an obligation to disclose material facts without a request from the other side. Traditional legal ethics, based on an adversarial framework, requires only disclosure of information when requested by another party. In addition, in traditional legal ethics, a lawyer cannot disclose information obtained in the course of the lawyer‐client relationship without the client's consent even if material to the negotiation. Some authority regulating CL, however, suggests that CL participants and counsel should disclose material information without a specific request even if a client does not want the information disclosed. In that situation, the CL lawyer should encourage the client to disclose the information but if the client refuses to do so, withdraw from the representation. This Article reviews the arguments for and against an obligation of affirmative disclosure in CL. It suggests that affirmative disclosure obligations should be the subject of discussion between CL participants and lawyers and that CL Participation Agreements should be drafted to establish a clear obligation. Finally, this article identifies key areas for further discussion and research on CL disclosure obligations.     

DNA数据库比对技术在刑事侦查中运用的合宪性问题

DNA数据库比对技术实质上是基因检测技术和大数据处理技术相结合的产物。DNA数据库比对技术可以精确锁定犯罪嫌疑人,由于其强大的证明能力而被广泛地运用于刑事侦查,各国都积极推动DNA数据库的建立。DNA数据库比对技术在维护了社会安全的同时也对公民基因隐私构成极大威胁。如何在技术的运用和隐私权保障之间做出更好的平衡,是DNA比对技术的合宪性争议的中心。廓清了合宪性问题,我们才可以更好地制定相关法律,消弭合宪性问题,在保障公民隐私权的同时也更好地维护社会安全。     

Encryption safe harbours and data breach notification laws

Data breach notification laws require organisations to notify affected persons or regulatory authorities when an unauthorised acquisition of personal data occurs. Most laws provide a safe harbour to this obligation if acquired data has been encrypted. There are three types of safe harbour: an exemption; a rebuttable presumption and factor-based analysis. We demonstrate, using three condition-based scenarios, that the broad formulation of most encryption safe harbours is based on the flawed assumption that encryption is the silver bullet for personal information protection. We then contend that reliance upon an encryption safe harbour should be dependent upon a rigorous and competent risk-based review that is required on a case-by-case basis. Finally, we recommend the use of both an encryption safe harbour and a notification trigger as our preferred choice for a data breach notification regulatory framework.     

Baker & McKenzie's annual review of developments in EU law relating to IP,IT & telecommunications

This is a summary of the Baker & McKenzie columns on developments in EU law relating to IP, IT and telecommunications. This summarises the principal developments in 2009 that are considered important for practitioners, students and academics in a wide range of information technology, e-commerce, telecommunications and intellectual property areas and which were reported on in this column in 2009. It seeks also to update any further development which may have taken place in relation to the specific topics since originally reported. It cannot be exhaustive but intends to address the important points. This is a hard copy reference guide, but links to outside websites are included where possible. No responsibility is assumed for the accuracy of information contained in these links.     

从公安资讯收集谈公民资讯隐私权和自决权的保护

当今,资讯快速流通和运用,一方面满足了公民知的权利,另一方面也有利于交易的安全,从而促进经济的发展。但缺乏有效法律规制,会造成资讯的误用和滥用,从而侵害公民的合法权益。我们在强调政府信息公开的同时,还要重视公民的资讯隐私权与自决权。法律赋予了公安机关广泛的个人资讯收集权,公安机关在行使该项权力时如何在公益与私利之间找到平衡点,值得我们反思。     

论我国有局限的推出型信息公开法

我国《政府信息公开条例》属于注重主动公开的推出型的信息公开立法。该型立法得益于我国二十多年来的政务公开实践以及改善后的信息流通环境。但不可否认的是,我国《条例》的主动公开程度受到有缺限的依申请公开机制、宽泛和模糊的例外规定以及最大化公开原则缺省等多种因素的制约。