Law and Data Science Summary

1 INTRODUCTION TO LAW AND DATA SCIENCE Law: The body of authorative rules (and knowledge about these rules) that determines the outcomes of court cases, provides instructions to judges how to handle cases. Absolute Right: Right that can be exercised against all others (e.g. property right). Relative Right: Right that can only be exercised against one or more determined persons (e.g. loan). Objective Right: Rights which are general (the law). 1 INTRODUCTION TO LAW AND DATA SCIENCE Law: The body of authorative rules (and knowledge about these rules) that determines the outcomes of court cases, i.e. provides instructions to judges how to handle cases. Absolute Right: Right that can be exercised against all others (e.g. property right). Relative Right: Right that can only be exercised against one or more determined persons (e.g. loan). Objective Right: Rights which are general (the law). Subjective Right: Rights which differ from situation (individual rights), like privacy or freedom of speech. Authoritative rules: Courts and citizens are supposed to simply follow the rules (case / statute law); even if you do not agree with them. Soft law: Rules such as professional rules; these rules have a large normative effect on the society. However, they have not been drawn up and sanctioned by properly authorised state organs. 1.1 PURPOSES AND FUNCTIONS LAW Purposes: ⦁ Establishing standards ⦁ Maintaining order ⦁ Resolving disputes ⦁ Protecting liberties and rights Functions: ⦁ Judicial Function: Making the decisions on cases. ⦁ Legislative Function: Making rules to get to decisions on cases. ⦁ Executive Function: Making sure the involved accept the decision on the case, and the consequences are executed. ⦁ LEGAL SYSTEMS AND TRADITIONS Legal System: An operating set of legal institutions, procedures and rules. Common Law: Case law; laws are based on earlier judicial decisions of courts and similar tribunals. Judge makes legal rules in verdict. Civil Law: Statute law; laws are based on a codification of core principles. Legislator makes legal rules in codes. In extremes: Civil Law Law Written constitution or codified laws Yes No Com n Not necessarily Yes Contractual freedom Less More ⦁ SOURCES AND HIERARCHY Sources ⦁ Statutes / acts: ⦁ Constitution (e.g. privacy / non-discrimi nation); grondwet. o Act of Parliament; statutes passed by a parliament. ⦁ Delegated acts; further rules made up by powers with the competence. ⦁ Customary rules: (Unwritten) laws based on custom and principles ⦁ Judicial decisions ⦁ Treaties and binding decisions of international organisations Legal domains 1.3 SOURCES AND HIERARCHY Sources ⦁ Statutes / acts: ⦁ Constitution (e.g. privacy / non-discrimi nation); grondwet. o Act of Parliament; statutes passed by a parliament. ⦁ Delegated acts; further rules made up by powers with the competence. ⦁ Customary rules: (Unwritten) laws based on custom and principles ⦁ Judicial decisions ⦁ Treaties and binding decisions of international organisations Legal domains ⦁ Private law (horizontal; rules which govern relationships between private parties) o Contract law o Tort law o Property law ⦁ Public law (vertical) o Criminal law (material rules which state actions that are possible) o Administrative law (rules by which governments are bound when acting in administrative affairs) 1.4 ARGUMENTATION AND LEGAL REASONING In a civil law system, a judge must apply the law; this law must be interpreted: Grammatical / linguistic interpretation: Literal meaning. Historical Interpretation: Using the legislative history / earlier circumstances, to reveal the intent of the legislator. Systematic Interpretation: Considering the broader context of the legal framework in which a provision is listed. Teleological Interpretation: Focus on the purpose of the law. Argumentation by the judge is needed for legal equality and legal certainty. Argumentation theory: Interdisciplinary study how conclusions can be reached through logical reasoning Fact rair skin, red freckles, ard Sunbathed all , Nick has hair and he yesterday Warrant People With fait Skin, red hair and freckles getsu.nEumt easily. Backing Those people have melanin in the]r skin, Melanin protects against sunburn (probably) Conclusion Rick probably get get seriously sunburnt Rebuttal RICKS parents 50th have teir skin, red fid freckles, and they to get sunburnt l•vever much they sit outside Analogy: A similarity in some respects between things that are otherwise dissimilar (for example electricity case) A contrario: From a contrary position Jurisdiction: The official power to make legal decisions and judgements I. Case can have a different outcome depending on where the dispute arises 2. Very important to know which rules are applicable 1.5 INTERNATIONAL AND EU LAW Primary law: Treaties Secondary law: ⦁ Decision: Binding on those to whom it is addressed. ⦁ Directive: Legislative act for all Member States; does not contain means of application, only requirement. ⦁ Regulation: Binding legislative act; applicable in all Member States' internal law after its entry into force. Jurisdiction: The official power to make legal decisions and judgements I. Case can have a different outcome depending on where the dispute arises 2. Very important to know which rules are applicable 1.5 INTERNATIONAL AND EU LAW Primary law: Treaties Secondary law: ⦁ Decision: Binding on those to whom it is addressed. ⦁ Directive: Legislative act for all Member States; does not contain means of application, only requirement. ⦁ Regulation: Binding legislative act; applicable in all Member States' internal law after its entry into force. ⦁ Recommendation: Not binding, suggestion of line of action. ⦁ Opinion: While laws are being made, committees give opinions from their viewpoint. Council of Europe: Europe's leading human rights organisation, uses international conventions. • The European Court of Human Rights oversees the implementation of the Convention in the member states. Regulation: Promulgation of rules by government accompanied by mechanisms of monitoring and enforcement. Lessig: Four modalities of regulation; law, market, norms and architecture 2 PRIVATE LAW Law governing private relationships 2.1 WHAT IS PRIVATE LAW? Party autonomy is the most important basic principle of private law. Positive law: The rules that describe the law as it is; often laid down in statutes, codes or case law. Other than public law, private law is not primarily aimed at providing absolute commandments; much of it describes no more than: ⦁ Formalities: rules that must be followed if one wishes to achieve a certain effect. ⦁ Default rules: Rules that apply if parties have not made other arrangements (so not necessarily mandatory). Three groups regarding private law: ⦁ Contract law: Promises must be kept ⦁ Property law: Property must be respected ⦁ Tort law: Harming others is not allowed Obligation: Having to do (or refrain from doing) something. Principles: Academic texts modelled on civil codes; resemble statutory law and are indicative of the consensus of how certain issues are regulated. However, these do not have the force of law. Contract: Mutual promise by parties to be bound. Each party promises (and intend to be legally bound) on the condition Three phases in the 'life' of a contract (not strict): ⦁ Formation ⦁ Consequences (content and remedies) ⦁ Termination 2.2 CONTRACT LAW: FORMATION OF CONTRACT Requirements contract in Civil Law: A contract is concluded, without further requirement if the parties: intend to enter a binding legal relationship or bring some other legal effect, and reach a sufficient agreement. 1. No formalities: A contract does not necessarily have to be made in the form of a signed document (even though Three phases in the 'life' of a contract (not strict): I. Formation ⦁ Consequences (content and remedies) ⦁ Termination 2.2 CONTRACT LAW: FORMATION OF CONTRACT Requirements contract in Civil Law: A contract is concluded, without further requirement if the parties: intend to enter a binding legal relationship or bring some other legal effect, and reach a sufficient agreement. ⦁ No formalities: A contract does not necessarily have to be made in the form of a signed document (even though this might be preferable). Sometimes this is needed (for example by directives by the European Union). ⦁ No general requirement of consideration: in common law, a mere intention to be bound is not enough. Also required is some kind of bargain in return for the promise to assume certain obligations. This might pose a problem in open-source software etc. It provides protection against too freely undertaken contracts. Conditions contract: ⦁ Intention to be bound (offer and acceptance) ⦁ Agreement between parties ⦁ Common law: Requirement of consideration Offer and acceptance: Procedure in which the intention to be legally bound is expressed. ⦁ There must be somewhat clear indications that an offer is made; otherwise every incidental suggestion could be a non-intended offer. This then violates the notion of party autonomy. The consequence of an offer is that upon acceptance it leads to a contract. ⦁ An offer can be withdrawn before it has reached the other party. It can be revoked after the offer has reached the other party, but has not accepted it yet. The problem of acceptance is the fact that we do not want parties to be bound without real acceptance, but can repudiate acceptance too easily neither. Receipt theory: The position that acceptance is effective only upon receipt (accepted in Civil Law). Postal rule / emission theory: Acceptance may be effective once it has been posted (accepted in English Law for communication through paper mail; not 'immediate' communication). In the European Union are further requirements (formalities) in case of non-face-to-face contracts and e-commerce. If in such cases the contract is between business and consumer, the business has to provide the consumer with precisely defined and honest information. Precontractual liability: Although a contract requires agreement between parties, it is possible that even in the absence of a contract, the negotiations between parties may be far enough that a party that breaks off negotiations may be held liable. In most civil law systems, there are three or four grounds for voidability of a contract (voidability is not always necessarily): ⦁ Mistake• one or both parties closed the contract under mistaken assumptions. Can occur without blame, or by breaching of the duty to disclose relevant information. ⦁ Fraud; one party by devious means caused the other party to agree to the contract ⦁ Threat' one party threatened the other party to have that party agree the contract ⦁ Undue influence• the offering party abused the other party's vulnerable position in order to obtain favourable contractual conditions. Under English law threat and fraud and to some extent undue influence is recognized. However, mistake is recognized to nnlv limitaH avtønH Tharp ic nn Hlltv tn Hicrlncø ( pmntnr• hi Ivor howarø• tho hllvar chOlllH Innle Aftor hic nwn In most civil law systems, there are three or four grounds for voidability of a contract (voidability is not always necessarily): I. Mistake• one or both parties closed the contract under mistaken assumptions. Can occur without blame, or by breaching of the duty to disclose relevant information. ⦁ Fraud; one party by devious means caused the other party to agree to the contract ⦁ Threat• one party threatened the other party to have that party agree the contract ⦁ Undue influence• the offering party abused the other party's vulnerable position in order to obtain favourable contractual conditions. Under English law threat and fraud and to some extent undue influence is recognized. However, mistake is recognized to only a limited extend. There is no duty to disclose (Caveat emptor; buyer beware: the buyer should look after his own interests). Specific representations (clauses in which is represented that certain characteristics hold) should be asked for. 2.3 CONTRACT LAW: CONTENTS OF CONTRACT Kinds of clauses: I. Clauses that describe the obligations of parties, including possible conditions ⦁ Clauses regulating whether certain outside events are attributable to a party (force majeure) ⦁ Clauses regulating the kinds of remedies that are available, and limitations to and conditions of these remedies. In particular remedies limiting damages are common (limitation clauses, liquidated damages) ⦁ Clauses regulating the termination of the contract: under what conditions can the contract be terminated, and what are the consequences? ⦁ General clauses regulating issues such as formalities for sending notice, applicable law etc. Boilerplate: Standard contractual terms with which businesses often work with In English law, certain distinctions between terms, representations, conditions, warranties and intermediate terms are made. English law Kind of clause Remedy representation rescission. damages torm oondition termination warrantydamagea - intarmadiato torm damages, possibly tormination U.S. law Kind Of clause Kind Of action Remedy warranty —+ breach of oontraot —+ Gontractually/statutory law epeoified representation —P innocent mierepresentation rescission negligent or damages fraudulent misrepresentation In civil law, there is generally no strict division between kinds of clauses: Obligation -5 breach of contract (sufficiently serious) damages, specific performance, termination Private International Law looks at whether a choice of law clause if valid, and which legal system is applicable in the There are two approaches to interpretation: I. Objective interpretation: Interpretation which is solely based on the text of the contract. This is the rule in common law. 2. Subjective interpretation: The intention of the parties is primary. The text may serve as an indication, but is not decisive. In civil law systems, generally the text is taken as the basis for interpretation, but other evidence is usually admitted. In civil law systems the relation between parties are usually described as relations governed by good faith; this has several aspects or functions: Supplementary function by which possible gaps in the contract can be filled in by the court on the basis of what There are two approaches to interpretation: I. Objective interpretation: Interpretation which is solely based on the text of the contract. This is the rule in common law. ⦁ Subjective interpretation: The intention of the parties is primary. The text may serve as an indication, but is not decisive. In civil law systems, generally the text is taken as the basis for interpretation, but other evidence is usually admitted. In civil law systems the relation between parties are usually described as relations governed by good faith; this has several aspects or functions: ⦁ Supplementary function by which possible gaps in the contract can be filled in by the court on the basis of what is reasonable. ⦁ Interpretative function whereby the interpretation of the contract is guided by what reasonable parties are supposed to have intended (subjective interpretation) ⦁ Restrictive function whereby unreasonable behaviour is disallowed. In common law systems good faith is generally repudiated as governing the relation between parties. However, some aspects contain it, like implied terms from statutory provisions or precedents. Contracts with unfair clauses are not binding on the user. The most common type of unfair terms are exclusion clauses whereby one party seeks to exclude their liability to excl ude their liability arising under the contract. Also, clauses against public order are void from the start. 2.4 CONTRACT LAW: REMEDIES AND TERMINATION OF CONTRACT Common remedies in case a party fails to perform its obligations: ⦁ Specific performance ⦁ Award of damages ⦁ Termination The defendant first has to be informed of the breach and provided with an opportunity to remedy the breach (notice). After this, the defendant is in default, and remedies can be claimed. In case of force majeure, the non-performance is not attributable to a party, unless this is stated in the contract. Damages Damages serve the aim of compensation of the aggrieved party. ⦁ Party in breach must be in default ⦁ There must be sufficiently close causal connection between the breach and the damage ⦁ English law: the damage must be foreseeable; this may not always be the case if losses are not directly caused by the breach Direct losses: losses which are assumed to be recovera ble Consequential losses: Losses which may not be recoverable. Contracts often contain clauses explicitly declaring consequential losses are not compensated Personal injury: damage to a person's body or health; commonly recoverable, including consequences of economic loss due to primary injury or damage. Property damage: damage to physical property; commonly recoverable. Pure economic loss: other damage; loss of profit, wasted time etc. Not always recoverable (sometimes possible in civil law) Limitation clauses: Clauses which mention a limited amount of damages which may be awarded; so flexible amount of money can be applied for. Liquidated damage clauses: Clauses that fix the amount of damages awarded for specific kinds of breach. If the amount is clearly much higher than the actual loss suffered, it is a penalty clause. In common law system, penalty clauses are not enforceable. Specific performance A court can give an injunction (gebod / verbod) for specific performance. This means that the defendant has to act in a Pure economic loss: other damage; loss of profit, wasted time etc. Not always recoverable (sometimes possible in civil law) Limitation clauses: Clauses which mention a limited amount of damages which may be awarded; so flexible amount of money can be applied for. Liquidated damage clauses: Clauses that fix the amount of damages awarded for specific kinds of breach. If the amount is clearly much higher than the actual loss suffered, it is a penalty clause. In common law system, penalty clauses are not enforceable. Specific performance A court can give an injunction (gebod / verbod) for specific performance. This means that the defendant has to act in a certain way, conforming the obligations it had undertaken. This is especially used in civil law, but it is now exceptionally also used in common law. Termination Termination may mean several things: I. Termination for breach: Termination is a response to breach of contract by the other party; only possible when sufficiently serious. ⦁ Termination for cause: The termination is based on a ground that justifies terminating the contract. For example death or insolvency of a party. ⦁ Termination at will: A party is free to terminate without having to provide any reasons. Termination may be subject to further conditions and requirements such as requirement of notice. Sometimes a contract explicitly states which clauses survive termination (survival clauses) Prescription: The time limits in which you have to revoke remedies 2.5 TORT LAW: FAULT-BASED LIABILITY AND NEGLIGENCE Tort law: The part of private law concerned with non-contractual liability. The aims of tort law are (1) the compensation of the victim (award of damages, injunction) and (2) prevention. Restitutio in integrum: Restoring the victim into the state of affairs that applied before. This usually takes the form of payment of damages. The central issue of tort law is the one between liberty and accountability. Individuals should be to the largest possible extent free to do as they want, but on the other hand they may be liable for the consequences of their acts. Distinctions between liability: ⦁ Fault-based liability: Liability for one's own fault. ⦁ Strict liability: Liability for damage caused without a fault of the person held liable. ⦁ Vicarious liability: Liability for the fault of another person (i.e. employer-employee, parent-child relationship). Profit and possibility of supervisor to prevent or lower damage is taken as reason for strict liability. ⦁ Negligence Requirements fault-based liability I. A fault by the tortfeasor (act the tortfeasor should not have committed). ⦁ Unlawfulness of the act Infringement of a right, or ii. Violation of a statutory duty, or iii. Rule of unwritten law pertaining to proper social conduct; people have to take others interest into account. Are determined in: (1) case law, (2) soft law, (3) safety rules and (4) references to what a reasonable person would do. ⦁ Responsibility of the act. 2. Damage for the victim; because immaterial interests are hard to protect, which results in a tendency to use tort law also as a kind of penal system (prevention). Requirements fault-based liability I. A fault by the tortfeasor (act the tortfeasor should not have committed). ⦁ Unlawfulness of the act Infringement of a right, or ii. Violation of a statutory duty, or iii. Rule of unwritten law pertaining to proper social conduct; people have to take others interest into account. Are determined in: (1) case law, (2) soft law, (3) safety rules and (4) references to what a reasonable person would do. ⦁ Responsibility of the act. ⦁ Damage for the victim; because immaterial interests are hard to protect, which results in a tendency to use tort law also as a kind of penal system (prevention). ⦁ Causality between fault and damage; most jurisdictions also require another causal requirement that requires a closer causal connection. a. Condicio sine qua non (c.s.q.n.): If the act would not have occurred, the damage would also not have occurred. In civil law, usually (pure) omissions may be unlawful as well as positive acts. There may be a duty to act to prevent harm. English law refuses to formulate general overarching rules, and instead stresses that rules within one kind of tort are not necessarily applicable to other torts. It prefers reinterpretation of existing courts; a plaintiff will have to state and prove that the facts of the case meet the requirements of one of these torts. The most important development in English law is the rise of negligence as a specific tort. Requirements negligence 1. The existence of a duty or care; found in circumstances and does not require a pre-existent right. This again has certain requirements: ⦁ Foreseeability of the damage. ⦁ Proximity ⦁ The situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of care. ⦁ A breach of that duty ⦁ Harm as a consequence of the breach Pure economic loss is not always recoverable in negligence; especially common law does not allow recovering of such losses, except in specific cases. Defences against an action based on tort: ⦁ Consent; it is not unlawful if someone consented to the action (volenti non fit iniuria). ⦁ Contributory negligence (eigen schuld). ⦁ Prescription (statute of limitations). The period starts from the moment the victim has the necessarily knowledge to start a tort action. 2.6 TORT LAW: OTHER FORMS OF TORT LIABILITY Liability for employees Initially, it was accepted that employers may be held liable due to negligence in the supervision by the employer. However, this required a fault or lack of care by the supervisor. This was found to limit liability too much, so the liability is extended. French and German law (PETL) favour a broad test on the possibility of control for an employer liability (scope of functions), where English law (DCFR) relies more on an actual employee relationship (course of employment). ISP liability 2.6 TORT LAW: OTHER FORMS OF TORT LIABILITY Liability for employees Initially, it was accepted that employers may be held liable due to negligence in the supervision by the employer. However, this required a fault or lack of care by the supervisor. This was found to limit liability too much, so the liability is extended. French and German law (PET L) favour a broad test on the possibility of control for an employer liability (scope of functions), where English law (DCFR) relies more on an actual employee relationship (course of employment). ISP liability ISP's are not held liable if they merely transmit data without being aware of the unlawful nature of the data. Only if they were notified of a claim of unlawfulness could they be held liable: the practice starts in which a notice usually leads to taking down the data, after which the ISP could start communication with the claimant and the person having put the data on the website. In the U.S. this procedure is called Notice and Take-Down. This practice is copied in the European Union. An injunction after a court decision does not imply liability. 2.7 PROPERTY LAW Law relating to things The difference between property and contractual law is in the binding effect. ⦁ Contractual law only binds on parties which have voluntarily accepted the promises made. Property rights on the other hands can bind in principle to everyone (erga omnes), whether they want it or not. The number and content of (limited) property rights are fixed. New property rights can only come into existence when the legislature creates them, and parties cannot deviate from formalities nor substance of property rights as laid down in law. The reason for this is that property rights are very strong rights. The deviation is possible in contractual law. ⦁ Furthermore, property rights follow the object, not so much the person who is entitled to the object at that moment. Objects of property law You can be owner of a tangible object, but not of an intangible object; then you are the right holder. Whether something belongs to the movable or immovable does not depend on whether it is actually movable (can be used as a rule of thumb), but it mostly depends on tax matters. Intangible objects contain: ⦁ Claims: rights a person has on another (contractual right or object, as it can be used to secure a loan someone has to pay back to someone else). ⦁ Intellectual property: Copyright, database rights and patents. Not a physical copy of the initial invention is protected by intellectual property rights, but the invention itself. Rights Not because everything can be categorized as either intangible or tangible mean it is subject to property law. For example, humans cannot be owned. Ownership rights: Rights of which all other property rights are derived from. It is the most extensive right, but not Intangible objects contain: ⦁ Claims: rights a person has on another (contractual right or object, as it can be used to secure a loan someone has to pay back to someone else). ⦁ Intellectual property: Copyright, database rights and patents. Not a physical copy of the initial invention is protected by intellectual property rights, but the invention itself. Rights Not because everything can be categorized as either intangible or tangible mean it is subject to property law. For example, humans cannot be owned. Ownership rights: Rights of which all other property rights are derived from. It is the most extensive right, but not limitless (due to public and private laws). Revindication: The legal action you can take as an owner to regain possession of a tangible object if you do not have the possession of it. This is only possible if the other party having possession does not have right to the object. Limited property rights Pledge / charge: The security rights that exist in relation to movables and intangibles. Mortgage / hypothec are restricted to immovables. Security rights are meant to secure payment, not to profit from. Insolvency: Bankruptcy; the entire patrimony is tallied up and all the assets are equally divided among the creditors, meaning all creditors are equal to their share. If you secured your claim with a property right, you are prioritized (with the concerned objects). Obtaining property rights 3 ways to obtain possession of objects: ⦁ Objects which do not have an owner (res nullius), and you take possession of it, you will become the owner. ⦁ By creation ⦁ By transfer. For a transfer to be valid there are three requirements: ⦁ Valid title or reason for transfer (most of the time sales contract) ⦁ Power to dispose (power to transfer the object needed by initial owner) ⦁ Delivery (object needs to be delivered (by deed) to new owner) Reservation of ownership (clause): If the new owner party does not pay the initial owner party, the initial owner can revendicate. Non-transferability clause: Clause which says the objects cannot be transferred (used by for example online gamedevelopers) Data ownership It is not the 1 and o's that are protected, but rather what they represent; an expression of human creativity. Pictures / documents Copyright Personal data Privacy Law or Data Protection Law Database Intellectual Property Law (Database Rights) Data lost Tort Law Non-transferability clause: Clause which says the objects cannot be transferred (used by for example online gamedevelopers) Data ownership It is not the 1 and o's that are protected, but rather what they represent; an expression of human creativity. Pictures / documents Copyright Personal data -5 Privacy Law or Data Protection Law Database Intellectual Property Law (Database Rights) Data lost Tort Law 3 PUBLIC LAW Law governing relationship between the government and its citizens 3.1 ADMINISTRATIVE LAW Law regulating public administration (executive function) and its relationship with citizens In a constitutional state, all governmental actions must be justified according to democratic principles, or be open to political challenge. Administrative law is both 'of' the state and 'against' the state: ⦁ Capable administration: Effective government. ⦁ Accountable administration: Protection of individual rights. Administrative law only concerns public bodies deciding on an administrative act. However, in today's world public and private is not is not always straightforward anymore. Public bodies ⦁ State o Parliament (legislative) o Government (executive) o Ministers / Department (executive) Provinces Municipalities Administrative actions Rulemaking: Used to create or proclaim regulations, regulating details and completing the existing legislative standards. Administrative bodies are in a better position than legislators to enact flexible rules and adapt them to changing circumstances. Adjudication: Exercise of judicial powers by administrative agencies. Deals with disputes between individuals and government in terms of benefits sought or disabilities incurred from the governmental action. o Formal adjudication: Trial-like hearing with witness testimony, a written record and a final decision. ⦁ Informal adjudication: Decisions involve mainly the use of inspections, conferences and negotiations. Administrative decisions taken on these grounds are generally subject to appeal.