Please wait a minute...

Frontiers of Law in China

Current Issue

, Volume 13 Issue 3 Previous Issue   
For Selected: View Abstracts Toggle Thumbnails
Orginal Article
FOREWORD
WANG Yi
Front. Law China. 2018, 13 (3): 311-311.  https://doi.org/10.3868/s050-007-018-0020-3
Abstract   PDF (177KB)

References | Related Articles | Metrics
FOREWORD
Christian Walter
Front. Law China. 2018, 13 (3): 312-313.  https://doi.org/10.3868/s050-007-018-0021-0
Abstract   PDF (165KB)

References | Related Articles | Metrics
INTRODUCTORY NOTE
HAN Dayuan
Front. Law China. 2018, 13 (3): 314-315.  https://doi.org/10.3868/s050-007-018-0022-7
Abstract   PDF (182KB)

References | Related Articles | Metrics
INTRODUCTORY NOTE
Dieter Grimm
Front. Law China. 2018, 13 (3): 316-316.  https://doi.org/10.3868/s050-007-018-0023-4
Abstract   PDF (159KB)

References | Related Articles | Metrics
EDITORS’ NOTE
YU Wenguang, TIAN Wei, Christoph Krönke, Michael W. Müller
Front. Law China. 2018, 13 (3): 317-328.  https://doi.org/10.3868/s050-007-018-0024-1
Abstract   PDF (278KB)

References | Related Articles | Metrics
MAPPING PARADIGMS OF EUROPEAN INTERNET REGULATION: THE EXAMPLE OF INTERNET CONTENT CONTROL
Michael W. Müller
Front. Law China. 2018, 13 (3): 329-341.  https://doi.org/10.3868/s050-007-018-0025-8
Abstract   PDF (256KB)

The article introduces three of the paradigms used to analyze internet regulation and applies them to the history of internet content control in Europe. It builds on Thomas Kuhn’s notion of paradigms and previous works on regulatory theory, defining regulatory paradigms as a “shared understanding of the purpose of regulation, of the way of thinking about how regulation works, and of the set of institutional arrangements and instruments through which regulation is conducted.” Building on this definition, the prevalent concepts of the paradigms of internet regulation refer to the intention, mechanisms, and the intensity of regulation. The article discusses these concepts with regard to the regulation of internet content control in Europe and analyzes three paradigm shifts that have taken place since the early days of the internet. These paradigm shifts concern the responsiveness, differentiation, and intensity of regulation.

References | Related Articles | Metrics
INTERNET INTERMEDIARIES’ LIABILITY FOR ONLINE ILLEGAL HATE SPEECH
YU Wenguang
Front. Law China. 2018, 13 (3): 342-356.  https://doi.org/10.3868/s050-007-018-0026-5
Abstract   PDF (303KB)

Considering the prevalence of online hate speech and its harm and risks to the targeted people, democratic discourse and public security, it is necessary to combat online hate speech. For this purpose, internet intermediaries play a crucial role as new governors of online speech. However, there is no universal definition of hate speech. Rules concerning this vary in different countries depending on their social, ethical, legal and religious backgrounds. The answer to the question of who can be liable for online hate speech also varies in different countries depending on the social, cultural, history, legal and political backgrounds. The First Amendment, cyberliberalism and the priority of promoting the emerging internet industry lead to the U.S. model, which offers intermediaries wide exemptions from liability for third-party illegal content. Conversely, the Chinese model of cyberpaternalism prefers to control online content on ideological, political and national security grounds through indirect methods, whereas the European Union (EU) and most European countries, including Germany, choose the middle ground to achieve balance between restricting online illegal hate speech and the freedom of speech as well as internet innovation. It is worth noting that there is a heated discussion on whether intermediary liability exemptions are still suitable for the world today, and there is a tendency in the EU to expand intermediary liability by imposing obligation on online platforms to tackle illegal hate speech. However, these reforms are again criticized as they could lead to erosion of the EU legal framework as well as privatization of law enforcement through algorithmic tools. Those critical issues relate to the central questions of whether intermediaries should be liable for user-generated illegal hate speech at all and, if so, how should they fulfill these liabilities? Based on the analysis of the different basic standpoints of cyberliberalists and cyberpaternalists on the internet regulation as well as the arguments of proponents and opponents of the intermediary liability exemptions, especially the debates over factual impracticality and legal restraints, impact on internet innovation and the chilling effect on freedom of speech in the case that intermediaries bear liabilities for illegal third-party content, the paper argues that the arguments for intermediary liability exemptions are not any more tenable or plausible in the web 3.0 era. The outdated intermediary immunity doctrine needs to be reformed and amended. Furthermore, intermediaries are becoming the new governors of online speech and platforms now have the power to curtail online hate speech. Thus, the attention should turn to the appropriate design of legal responsibilities of intermediaries. The possible suggestions could be the following three points: Imposing liability on intermediaries for illegal hate speech requires national law and international human rights norms as the outer boundary; openness, transparency and accountability as internal constraints; balance of multi-interests and involvement of multi-stakeholders in internet governance regime.

References | Related Articles | Metrics
BOUNDARY OF CRIMINAL RESPONSIBILITY OF INTERNET SERVICE PROVIDERS — A LESSON FROM THE QVOD CASE
CHEN Xuan
Front. Law China. 2018, 13 (3): 357-366.  https://doi.org/10.3868/s050-007-018-0027-2
Abstract   PDF (274KB)

The Qvod case in 2016, in which the Chinese video-sharing site Qvod was convicted of the crime of disseminating pornographic materials for profits, provoked heated debates regarding the criminal responsibility of internet service providers (ISPs) in China. Using the Qvod case as an example, this paper first discusses the definition and the legal obligations of ISPs, and argues that we should decide the criminal responsibility of ISPs according to their functions and the content of their services. This paper further analyzes four major issues associated with the criminal responsibility of ISPs, including accomplice responsibility, accessory with neutral conduct, perpetrator by action or omission and ideal concurrence (Idealkonkurrenz).

References | Related Articles | Metrics
DATA REGULATION IN THE INTERNET OF THINGS
Christoph Krönke
Front. Law China. 2018, 13 (3): 367-379.  https://doi.org/10.3868/s050-007-018-0028-9
Abstract   PDF (213KB)

The reflections on data regulation in the internet of things (IoT) in this paper provide an overview of the different conceptions and legal problems of “data property rights.” Beginning with an overview of the existing and possible applications of the future IoT (in particular, smart cars), this paper describes the legal concerns that may arise because of increased commercialization of object-generated data. The author uses German and European Union law to illustrate the legal complexities, solutions, and shortcomings. He demonstrates how and to what extent these issues are covered by traditional data protection regulations and highlights the conceptual blind spots of these regulations. He then contrasts the data protection paradigm (de lege lata) with the idea of a general erga omnes data property right (de lege ferenda) and describes the most common understanding of such a right, that is, a data producers’ property right. Against the background of the possible economic advantages of general data property rights, the paper discusses conceptual problems and constitutional concerns. In conclusion, the author rejects the idea of a general data property right.

References | Related Articles | Metrics
PERSONAL DATA PROTECTION: RETHINKING THE REASONS, NATURE, AND LEGAL FRAMEWORK
DING Xiaodong
Front. Law China. 2018, 13 (3): 380-389.  https://doi.org/10.3868/s050-007-018-0029-6
Abstract   PDF (254KB)

This paper rethinks the reasons for and the nature and means of personal data protection. The reasons for personal data protection are that it could promote the fairness and effectiveness of information flow, help individuals develop their independent personality, and equip them to deal with risks. With respect to the nature of personal data, this paper argues that such data should not be perceived from a purely individualistic point of view. Rather, there should be a contextualized understanding of the data, which considers the appropriate information flow of personal data within a particular context. Regarding the legal framework of personal data protection, this paper suggests that consumer protection law and public law are better equipped to protect personal data than tort, contract, or property law.

References | Related Articles | Metrics
ADJUDICATING THE REGULATORY PENALTIES AGAINST NONPROFESSIONAL TAXI SERVICES IN CHINA AND THE EUROPEAN UNION
XIONG Bingwan
Front. Law China. 2018, 13 (3): 390-411.  https://doi.org/10.3868/s050-007-018-0030-0
Abstract   PDF (397KB)

This paper provides an overview of judicial decisions on lawsuits against regulatory penalties imposed on nonprofessional taxi drivers and ride-hailing platform operators in China and the European Union (especially Germany). Despite strikingly different facts in these cases, courts in both China and the EU are frequently called upon to rule on similar legal issues, including the applicability of old regulatory rules to new forms of transport services, the regulatory bar for the operation of emerging transport models, and the proper intensity of competition in taxi markets. The comparison of such cases suggests that for deciding the regulatory schemes of the innovative economy of transport services, the judicial system is not better suited than the regulatory system, especially the regulatory authority of the central government. Moreover, an experimental regulatory approach with minimum standards is arguably a feasible option that can fit with the emerging nature of innovative businesses.

References | Related Articles | Metrics
SPACE AS PARADIGM OF INTERNET REGULATION
Laura Münkler
Front. Law China. 2018, 13 (3): 412-427.  https://doi.org/10.3868/s050-007-018-0031-7
Abstract   PDF (268KB)

Right now internet regulation is standing at the crossroads. Its problem-driven evolution has led to a conglomerate of seemingly diverse rules, which can hardly be structured as one cohesive area of law. Nevertheless, a consolidation of these rules as one cross-sectional field of law is can be identified. The discussion about the terms “internet regulation” and “internet governance” as well as recent developments in this field indicate that a paradigm shift in internet regulation is ongoing. Whereas self-regulation has been the determining mode of internet governance for a long time, internet regulation in the sense of public regulation is currently gaining more influence. This transformation is accompanied by the rising importance of a traditional paradigm of law: the idea of space. Even though the idea of space finds itself challenged with regard to the internet, it can give substance to many different aspects of internet regulation.

References | Related Articles | Metrics
DIGITAL BORDER CONTROLS
Walther Michl
Front. Law China. 2018, 13 (3): 428-440.  https://doi.org/10.3868/s050-007-018-0032-4
Abstract   PDF (251KB)

The article examines to what extent territory plays a role in internet regulation, especially whether an equivalent to physical border controls for cyberspace already exists in Germany, i.e. digital border controls. To that end, both the abstract relevance of the territorial principle and specific examples of legal commands that cause the free flow of data to be interrupted or modified along state boundaries are scrutinized.

References | Related Articles | Metrics
FUNDAMENTAL RIGHTS IN THE DIGITAL ERA, HORIZONTAL EFFECT AND THE DISTINCTION BETWEEN “STATE” AND “SOCIETY” IN GERMAN AND EUROPEAN CONSTITUTIONAL THEORY
Daniel Wolff
Front. Law China. 2018, 13 (3): 441-455.  https://doi.org/10.3868/s050-007-018-0033-1
Abstract   PDF (277KB)

The article discusses the proposal for a “Charter of Digital Fundamental Rights of the European Union,” whose central element is a binding effect of its fundamental rights not only to state authorities, but also to powerful private internet companies, which have a potential similar to that of the state to infringe on fundamental rights in the digital era. The article outlines the traditional German approach to fundamental rights and its underlying distinction between state and society, which makes it difficult for German scholars to handle a so-called horizontal effect of fundamental rights. Finally, the article discusses the main objections to such a horizontal effect and shows some practical problems it has the potential to cause in German and European constitutional law.

References | Related Articles | Metrics
14 articles

NewsMore

LinksMore