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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
RECOMMENDATION No. R (92) 15
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
CONCERNING TEACHING, RESEARCH AND TRAINING
IN THE FIELD OF LAW AND INFORMATION TECHNOLOGY
(Adopted by the Committee of Ministers on 19 October 1992,
at the 482nd meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity among its members;
Considering the increasing number of ways in which information technology affects society, and the need for the law to adopt new strategies and perspectives to meet the legal implications thereof;
Considering that the development of information technology provides a new working environment for the lawyer, and contributes towards changes in business practices and public administration, including a more efficient administration of justice;
Considering that legal education should acquaint lawyers with these rapidly changing legal issues and working environments,
Recommends the governments of member states to:
1. encourage and support the introduction and further development at university level of teaching and training programmes based on the elements and standards annexed to the present recommendation;
2. encourage and support research in the field of law and information technology;
3. draw the attention of the competent authorities to the importance of creating one or more national academic resource centres specialising in matters of law and information technology;
4. recognise that information technology furthers an interest in laborative elements to legal teaching and training and that, in consequence, new demands for physical and human resources have to be met;
5. invite the appropriate bodies, and particularly those responsible for permanent education, to organise training courses for legal professionals and to recognise any professional qualifications thus obtained;
6. encourage the competent authorities, where appropriate, to take into account periods of study carried out abroad in this field as part of the study required for the granting of degrees and diplomas and to promote international exchanges of students.
Appendix to Recommendation No. R (92) 15
Suggested elements of a study programme in the field of law and information technology
A. General outline
I. A presentation of information technology as it is related to law, in particular the interaction of law and information technology reflected in, for example, needs for new legal concepts, standards, procedures, law-making strategies and system design and planning.
II. The computer as a personal working tool for the law student and for the legal professional, comprising matters such as personal computing, telecommunications, expert systems, data bases and working methods, for example organisation of systems and data.
III. Applications of information technology in the legal sector comprising matters such as:
- legal information storage and retrieval;
- administrative systems (for example court administration, criminal justice systems, land registration);
- decision support systems in public administration and law-making;
- electronic data interchange in trade, administration and transport;
- electronic funds transfer for banking and financial transactions.
IV. Legal issues related to the above applications and to other applications of information technology, such as:
- vulnerability and security, computer-related crime;
- data protection;
- regulation of telecommunications and the information market;
- automation of public administration;
- freedom of information;
- contracts, intellectual property rights.
B. Minimum standard
The minimum standard of an introductory course should acquaint students with the basic principles of information technology, the legal issues related to the application of information technology and the applications of information technology in the legal field.
In implementing this minimum standard, attention should be paid to the availability of computing facilities for the students. In particular, there should be possibilities for:
- the use of national legal information retrieval services;
- the use of standard professional legal programmes;
- the illustration of various legal aspects of applications of information technology, for instance the problems of quality control of data in matching computer files.
C. Advanced topics
Whilst recognising that topics specified within the general outline may be the subject of advanced treatment, certain other areas of study may be considered as particularly suitable for advanced research. These can be categorised as being within the broad areas of:
- theoretical issues of artificial intelligence (AI) involving representation and reasoning strategies for law (legal materials);
- technological developments within networking, personalised and integrated work stations, programmes;
- interdisciplinary issues relating to system design, system analysis and organisational analysis;
- normative issues concerning the proper scope and application of public and private law to the area of information technology
* * *
1. Whereas computers, databases, telecommunications, expert systems and other elements of modern information technology are used more and more frequently in all fields of administration, commercial life, etc., law students and practising lawyers are still not familiar enough with these new phenomena. Neither are they always sufficiently aware of the applications of information technology in the legal sector, ranging from legislative information and text processing systems to practical uses in law offices and in the administration of justice – applications which already affect their daily working methods – nor do all lawyers realise that normative problems of considerable concern are being caused by the use of information technology in numerous areas of daily life. Legal education should therefore acquaint law students with these questions. From the point of view of legal scholars, the interaction of law and information technology gives rise to demands for new methodological skills and inter-disciplinary strategies. There is, thus, a growing awareness that traditional legal science must be expanded to cover new areas associated with automation, information science and related fields.
2. As the situation is similar in all its member states, the Council of Europe considered it useful in 1980 to recommend that member governments follow certain common principles in this field. These principles were laid down in Recommendation No. R (80) 3, adopted by the Committee of Ministers of the Council of Europe on 30 April 1980. In this context attention was also drawn to Resolution (73) 23 on harmonisation measures in the field of legal data processing, adopted by the Committee of Ministers of the Council of Europe on 26 September 1973.
3. Recommendation No. R (80) 3 aimed at raising the level of awareness for the problems of computers and law, and sought to encourage educational and scientific endeavours in the field. These goals are still valid and developments both of technology and of its applications in society appear to have increased in importance. Thus, the principles and concerns expressed in Recommendation No. R (80) 3 are in no way obsolete. On the other hand, certain needs for adjustments have made themselves felt. They follow from experiences in implementing the recommendation of 1980 and from the ongoing development of hardware, software, and the applications of information technology in diverse fields of automation and data communications.
4. The present recommendation is firmly based on the two texts mentioned above. The revision has been particularly guided by the recommendation in Resolution (73) 23 to governments of member states:
– that they support research and development in the field of electronic processing of legal data, bearing in mind the need for international co-operation in this field;
– that they similarly support and encourage education and training in legal data processing;
– that they see to it that persons concerned with legal data processing, including lawyers and computer specialists, are enabled to acquaint themselves with different working methods and new problems by making study visits or otherwise widening their experience in other states.
Comments on the text of the Recommendation
5. The recommendation of 1980 used the expression “computers and law” to define its field of application. The present recommendation uses the expression “law and information technology”. The change of terminology does not reflect any far-going re-thinking of the area of application. In fact, the main reason for the change is the wish to emphasise more strongly that the recommendation does not merely centre narrowly on issues raised by computer hardware. On the contrary, it covers diverse legal concerns associated with data processing machinery as well as data communications, computer programs and data-bases, general information system theory, specific application-oriented problems, and so forth.
6. The recommendation covers two interrelated aspects. On the one hand, information technology is considered as an instrument used for various purposes in the legal sector, such as support for individual legal work, creation of legal data banks, and the administration of justice. On the other hand, the use of information technology raises a series of problems which require legal attention and legal regulations: for instance, protection of privacy, contracts between hardware and software producers and users, electronic messages in trade and banking, information system security, and so forth.
7. In a number of member states efforts have been made to introduce programs at university level in the field of law and information technology. However, the general impression is that such efforts are still relatively scarce and that they are diverse and even fragmentary in nature. Thus, there is still a need to draw the attention of the competent authorities to the importance of the field at issue. There may also be a need for special measures aimed at facilitating and economically supporting the introduction of the desired programs. The rapid development of information technology and its uses raises new demands on the legal profession; there is an evident risk of lagging behind and of not reaching the desirable – and even necessary – level of proficiency.
8. Teaching and training should be based on the suggested elements and standards. However, it should be emphasised, on the one hand, that the suggested list of elements is neither restrictive nor exhaustive and, on the other hand, that it is not intended to establish a rigid standard. Essentially for practical reasons – above all the available technical and economic resources – a range of implementation possibilities should be allowed for, and choices will have to be left to those responsible for the courses. It is, however, desirable that when choices are made, due consideration is given to the suggested elements of a study programme set out in the appendix to the recommendation, so as to assure a certain harmonisation of teaching in various law faculties and other teaching institutions.
9. The programme should preferably comprise both a basic introduction for all students and more advanced study programmes for students who wish to specialise in the field of law and information technology or in certain of its aspects. It is difficult to draw a clear distinction between introductory and advanced topics. However, the appendix suggests certain minimum standards for an introductory course. In this context, it is particularly important to draw attention to the need for practical exercises, where students are given the opportunity to work with computer equipment, databases, and computer programs. Generally speaking, legal education should involve, and sometimes be based on, laboratory work: these new possibilities are of an interest which goes beyond from the field of law and information technology.
10. The recommendation does not deal with the issue of what examinations should follow the suggested courses and what status they should convey. As the examination systems differ considerably in member states, it does not seem possible to attempt a harmonisation of this point. It is, however, important that the suggested minimum standard be implemented in courses which are followed by all students. New study programmes and exams could be created, in which law and information technology are combined with elements from other fields of study (cf. paragraph 11 below).
11. The recommendation is only directed at law faculties of universities and other comparable institutions of higher education. It is directed at law students and does not touch upon, for example, the question of how students of computer and information science should be introduced to legal aspects of this subject in their studies. This question should be regulated by their own curricula. In this context, it may be noted that this type of introduction has proved to be important and may be found in many universities. The field of law and information technology is increasingly covered in courses in public administration, political science, and so on. The interest shown in such courses adds weight to the present recommendation and illustrates the need to develop academic expertise in the field of law and information technology.
12. It is recommended that scientific research be encouraged and supported, alongside teaching in this sector, as law and information technology as a subject is still in its early stages and under constant development.
13. In several member states experience has shown that specialised academic centres can play an important role in developing the field of law and information technology with regard to both teaching and scientific research. Such specialised research centres can also facilitate and strengthen co-operation between member countries. Their activities often presuppose access to computer facilities and make them more dependent on economic support than traditional academic centres in the legal field.
14. So far, only small steps have been taken to introduce into legal teaching “laborative” (or experimental) elements based on the use of information technology. The reason for this seems to be not a lack of interest and understanding of needs and possibilities, but frequently a lack of physical and human resources. One reason for this would seem to be that traditional legal education is concerned almost exclusively with the study of texts in books. Compared with many other university subjects legal teaching has always been a low-budget undertaking. This situation must now seriously be put into question. Legal working methods and legal problem-solving increasingly presupposes personal acquaintance with various uses of information technology. In consequence, the law teaching institutions run the risk of becoming antiquated workplaces, if they have to rely on traditional teaching methods only. National programmes, such as the German CIP (Computer-Investitions programm) and the United Kingdom CTI (Computers in Teaching Initiative) proposal, have provided resources and impetus.
15. This part of the recommendation concerns courses for legal professionals (in other words, all lawyers exercising their profession). As the lawyers who have left universities some years ago have only rarely, if not at all, had the occasion to profit from courses on law and information technology during their university education, they should be made familiar with the subject now, particularly as they will be confronted more and more frequently in their daily work with the use of electronic data processing in law, administration, etc. and with its implications. The term “training courses” was chosen to distinguish teaching in this sector from undergraduate university teaching (paragraph 1 of the recommendation). The curriculum for these training courses might, however, follow that of the suggested programme reproduced in the appendix. The training courses would include lectures as well as an introduction to methods of electronic data processing, allowing the trainees to acquire practical skills.
16. While the recommendations laid down in paragraphs 1 to 4 concern teaching in universities and other comparable institutions of higher education, the recommendation leaves it to governments to decide which are the appropriate bodies for the training of professional lawyers in this field. Such bodies might for instance be set up for training judges, civil servants, etc., but the framework would probably differ from one state to the other.
17. As the problems created by law and information technology are similar everywhere, and as courses on this subject in the different member states will probably cover similar territory, especially if the present recommendation is implemented, member governments are advised to encourage the appropriate authorities to give students credits for courses which they have followed in universities of other member states.
18. As it seems useful that students should profit from research results achieved outside their own country in this field – a field which is still under constant development everywhere – it is recommended that international exchanges of students be promoted.
Comments on the appendix to the recommendation – suggested elements of a study programme in the field of law and information technology
19. The field of law and information technology is broad as well as complex. Even where adequate resources exist with regard to technical equipment and teaching staff, it is a demanding task to arrange and carry out a full study programme comprising introductory as well as in-depth courses, and possibly special programmes for doctoral studies. Experience has shown that only a few law teaching institutions have such resources and that the situation is not likely to change in the near future.
20. In spite of such difficulties a study programme is outlined which is broad in nature and which covers topics central to and which reflect the current status of research and paradigm development in the field of law and information technology. The suggested programme is based on a general outline which may guide the development of courses with different aims. Even where only modest efforts are possible, the suggested programme may be useful both as a guide for continued development of courses and as a broader framework for the limited endeavours that are considered possible at an early stage.
21. The amount of teaching and practice hours which are required will, of course, vary according to the kind of courses that can be arranged. In member states programmes of 100 to 200 teaching hours can be found. As a rule, efforts which aim at courses for all law students must be more modest, and a basic level of 20 to 40 teaching and practice hours, or some equivalent measure of the teaching and training volume, appears to be suitable. Generally speaking, it will still require time to develop adequate courses, and the teachers and institutions responsible will have to find ways to deal with the basic problems of limited resources and limited space within the general curriculum.
A. General outline
I. Information technology
22. Experience indicates that courses which present information technology as a more or less technical subject, and outside the legal framework, are not well received by law students. Therefore, it is desirable that students are introduced less to the purely technical aspects of information technology and more to the basic methodological aspects of information processing and, in particular, to the relationship between law and information technology. Thus, discussion of the vulnerability of computerised information systems and the legal consequences should be given priority over mere presentation of computer programming languages or of various technical devices used for data storage. Generally speaking, the legal interest in information technology should serve as the fundamental criterion for the way in which an introduction is structured and conducted. It may also be said that legal science gives indications for an integrated legal technical presentation of the kind advocated here. 1 It should be underlined that the development of information technology will in some respects have far-reaching effects for the legal order. Thus, it is likely that the theory of legal sources and legal decision-making will be influenced increasingly by the storing and manipulation of legal information in computers. New legal concepts must be developed in many areas of law, where electronic handling of information makes traditional regulations inadequate or obsolete. The introduction of data protection legislation in a number of member states during the 1970s and 1980s offers a well-known example. The legal consequences of automation of public administration have been the subject of a number of specialised studies. At present, much attention is devoted to the legal aspects of so-called Electronic Data Interchange, etc.
II. The computer as a personal working tool
23. As pointed out above, the introduction of information technology should not be one-sided and concerned with purely technical aspects. However, personal computing has become a reality and cheap and yet powerful desk computers, specialised work-stations etc. can now be regarded as ordinary tools for legal work. Moreover, various kinds of advanced software packages for such work have become available to the ordinary lawyer. Legal databases are available either via on-line facilities or via media for local use such as CD-ROM's. In short, automation is becoming an increasingly important prerequisite for efficient legal work of day-to-day.
24. Law teaching institutions should be in the forefront when it comes to developing a working environment which reflects this development. The reality is, however, gloomy. The budgets of law faculties and other responsible institutions are, as a rule, too modest to allow the investment in technical and human resources which is required. There are difficulties in financing the use of legal information retrieval systems at commercial rates. Rather than being in the forefront, law teaching institutions run a clear risk of being left behind and out of contact with the working methods of courts, law offices, corporate legal offices, law-making bodies, and so on. Given this situation, special care must be taken to develop strategies which allow progress to be made in spite of the difficulties. Such strategies may range from special government investment programmes aimed at introducing computing laboratories for the law students, to sponsorship by professional organisations and vendors of hardware, software, and databases. Where the big leap forward is not possible, step-by-step advances may still be possible.
III. Applications of information technology in the legal sector
25. The list of topics suggested under this heading names some of the subjects that could be illustrated and worked on within in the legal computing laboratory discussed above. As for the level of presentation, the choices are broad and different combinations of levels and detailed descriptions may be tried: in some cases mere demonstrations of certain applications may be found suitable; in other cases presentations may aim at familiarising the students with practical details of a certain application and may be combined with in-depth discussions of methodological aspects and legal implications. Generally speaking, the assessment of implications seems vital. The effects of automated document retrieval and use of expert systems on legal research and decision-making, or the consequences of Electronic Data Interchange (EDI) for contract procedures and the relations between, on the one hand, business enterprises and, on the other hand, customs authorities and other government organs, may be quoted as examples. The discussion of the legal implications also serves to underscore the integrated nature of the field of law and information technology that is the overlapping nature of many applications and the regulation aspects. It follows that there is no sharp dividing line between the elements treated under III and IV.
IV. Legal issues related to the above applications and to other applications of information technology
26. Regardless of how much effort is devoted to regulatory issues, a systematic and coherent treatment is essential. Frequently, this is not achieved and the pertinent issues are brought up in a fragmented and arbitrary way according to the preferences and skills of individual teachers with other specialised interests. A systematic treatment presupposes a perspective on the regulatory issues, which distinguishes central issues and delimits the field. The discussion during recent years of the practical and theoretical aspects of “data law” or “information law” has prepared the ground for this.
27. The suggested list of elements is not exhaustive but may nevertheless serve as a structure for the field. Thus, six main, partly overlapping, areas have been quoted. This list reflects both practical and methodological viewpoints on how to organise the whole field.
28. Issues of vulnerability and security, and computer-related crime are of much concern. They should be touched upon even in short introductory courses. In addition, the field covers a broad range of questions: acceptable error rates in automated administrative procedures, machine-readable data as evidence, issues of record-keeping, etc.
29. Data protection is primarily concerned with the protection of the privacy of individuals. A broader definition includes, for example, the protection of data concerning businesses. The issues of data protection may be viewed as part of the vulnerability and security complex, but should preferably be treated separately, due, not least, to their practical significance and the existence of special data protection laws.
30. The regulatory aspects of the information market have become increasingly complex. Among other things, this situation is brought about by the ever-increasing flow of data across national borders and the disappearance of the traditional walls and legal dividing-lines between telecommunications and data processing and between different categories of information services and products. Briefly, data law is concerned mainly with these ongoing changes and the creation of new legal regimes for modern “information society”.
31. Automation of public administration is commonly considered as a central field of data law. There are even tendencies to regard it as important enough to be treated as a separate, interdisciplinary academic subject. From the point of view of law and informatics it includes issues such as the consequences of laying down legal regulations via computer programmes and the shaping of administrative procedures based on automation and on the electronic communication of messages inside and outside public authorities.
32. Freedom of information issues concern freedom to gather information and, in particular, laws on access to public documents held in computer storage, freedom and restriction of expression in media such as teleconferences, regulation of commercial messages and related activities in computer networks.
33. Contracts, licenses, and intellectual property rights are of high practical and economic importance. Here the central private and commercial law aspects of the information technology market are found. A course should cover topics such as standard contracts, the specific problems of particular products and services (personal computers, standard programmes, customized programmes, databases, maintenance, etc.), and the most important clauses in contracts (functional specifications, acceptance tests, liability, etc.). Intellectual property aspects also fit into this context naturally and should be given due attention.
B. Minimum standard
34. The experience with Recommendation R (80) 3 has shown that it is difficult to set a minimum standard which has a good chance of immediate and widespread implementation. Flexibility is required and one can only foresee a gradual development of acceptable programmes. These are the considerations behind the present suggested minimum standard: it does not indicate, for example, the volume of teaching or the specific topics which should be covered. Instead it states the goals which should be set concerning the knowledge to be transmitted and the practical experiences to be conveyed. Even then expectations are relatively high compared with the present situation: only a few law teaching institutions have so far managed to establish programmes of the suggested kind. Once more, there is reason to point out the risk of lagging behind and the need to improve the situation through efforts of the governments of member states to create the appropriate conditions for the desired development.
C. Advanced topics
35. Although the main difficulty still lies with the establishment of programs which fulfil a minimum standard, certain topics which are particularly well-suited for advanced courses and advanced research are suggested under Section C. Naturally, the number of suggestions could be extended considerably. For instance, mention may be made of such topics as legal logic and logic programming in law, distributed systems in law and public administration, and information management.
36. One particular reason for directing attention to advanced topics is that continued theoretical advancement in the field of law and information technology is significant also for teaching and training efforts. The field exhibits the characteristics of a newly developing discipline and, in consequence, there is also a noticeable shortage of teachers with the necessary theoretical background. Therefore, even from the point of view of basic level teaching and training it is essential to identify particularly important research subjects and to ensure that university careers exist for persons wishing to specialise in law and information technology.
1 Mention may be made of works such as Advanced Topics of Law and Information Technology, G.P.V. Vandenberghe (Editor), Computer/Law Series 3, Deventer, Boston, Kluver 1989; Computer in der Juristenausbildung, H. Fiedler and G. Oppenhorst (Editors), Munich, Beck'sche Verlagsbuchhandlung 1 1989; J. Huet, H. Maisl: Droit de l'Informatique et des TÚlÚcommunications, Paris, Editions Litec 1989; P. Seipel, Computing Law, Perspectives on a New Discipline, Stockholm, Liber 1977.