RICERCA ITALIANA     

Innovation, science, technology, rules and liability. Legal and economic perspectives

Scuola Superiore di Studi Universitari e Perfezionamento S. Anna di Pisa

Abstract

The research is grounded on the necessity the necessity of reasoning critically on the role that tort liability systems, and in general private law rules, could have in managing risks coming from the technological and scientific progress in the strategic sectors of biotechnology, communication technologies and in particular information technologies. The aim of the project is verfying the possibility of using liability as a mean of social regulation, considered as a part of a normative policy referred to the protection of consumers, users and all people affected/interested by the development dynamics.
The research will focus on the following items:
a)biotechnology (GMO, drugs and medical devices);
b)exposure to magnetic fields;
c)advanced digital technologies, such as systems of Digital Rights Management (DRM), platforms for automated management of privacy preference, Trusted Computing and "secure" architectures, semantic web and intelligent software agents;
d)"electronic document", "digital signature", "electronic signature" and qualified signature;
e) e-commerce, focusing mainly on privacy, limitation of freedom of contract and control over unsolicited commercial e-mail.
For instance, referring to the last item, but as a method generally used in the whole project, the analysis will focus on the aspects related to the process of European legal harmonization. Particular attention will be given to the choice between maximum and minimum harmonization, whose relevance is perfectly demonstrated by the different normative options expressed in the European Directive on Distance Selling and the Directive 2002/65 on Financial Online Services.
The research will be articulated in more phases. In the first one, we will proceed to rebuild the scientific and legal debate on the topics indicated, trying to recollect and analyse the scientific, legal and informatic literature about them, with the purpose of defining the level of consciousness that different scientific communities have reached on the social implications of the technological progress, on the risks related to it and on the possibility of regulating scientific phenomena. Subsequently, the second step will be aimed at analyzing the scientific literature that has taken into consideration the economic and legal-economic implication of the deployment of technologies, and at analysing case-studies which could help to have a general view of the problems analysed. After the reconstructive part described above, the research activity will focus on the set up of legal institutional solutions able to drive the policy choices in the problematic situations indicated, trying not only to position the notion of the risk at the centre of the Italian civil liability system, but also, in the case it will be seem inadequate to reach the targets of protection indicated before, to devise institutional answers able to better distribute and guarantee the costs of compensation while contributing to risk reduction. <<<

Principal Investigator

Giovanni COMANDE' Scuola Sup. di Studi Univ. e Perfezionamento S.Anna di PISA

Research Objectives

The general goal of the project is at first an analysis of the role that liability systems could have as a mean of risk allocation, promotion and deterrence of the social relevant conducts. The project then will focus on the analysis of how the use of different liability models can bring to a fair management of risks which come from the technological progress, in other words how liability systems and private law in general can be used as a regulation policy in order to protect users, consumers and all people concerned with the scientific and technological progress dynamics.
The analysis will focus on the following items:
a)biotechnology (GMO, drugs and medical devices);
b)exposure to magnetic fields;
c)advanced digital technologies, such as systems of Digital Rights Management (DRM), platforms for automated management of privacy preference, Trusted Computing and "secure" architectures, semantic web and intelligent software agents;
d)"electronic document", "digital signature", "electronic signature" and qualified signature;
e) e-commerce, focusing mainly on privacy, limitation of freedom of contract and control over unsolicited commercial e-mail.
In the first phase of the project, the general goal will be to rebuild the scientific and legal debate on the topics indicated, trying to recollect and analyse the scientific, legal and information/computer doctrine about them, with the purpose of defining the level of consciousness that the different scientific community have reached on the social implications of the technological progress, on the risks related to it and on the possibility of regulating scientific phenomena. Particular attention will be dedicated to examine the specificities of every single scientific sector (e.g. the relation between legal and computer language, the individuation/arrangement of precautionary measures in lack of certain data on the adverse effects on human health or on the environment of some products and activities, the international harmonization of legal norms on "spamming" etc.)
Subsequently, the second step will be aimed at analyzing the scientific literature that has taken into consideration the economic and legal-economic implication of the deployment of technologies, and at analysing case-studies which could help to have a general view of the problems concerned.
As imposed by the wideness of the study, an interdisciplinary and comparative approach will be used, so that the concrete implications of choices made until now by the scientific community and the legislator will be shown, and so that it will be possible to compare the different national European and non European experiences. Particular attention will be used when referring to the European law system, relating to which the analysis will focus on how the different options that the legislator could choose (e.g. soft law v. hard law) have so far influenced the results of the regulation policies.
After the reconstructive part described above, the research activity will focus on the set up of legal institutional solutions able to drive the policy choices in the problematic situations indicated. More specifically, the goals of this second phase are:
a)to position the notion of the risk at the centre of the Italian civil liability system in order to stress also the links it has with solidarity principles, on the one hand, and with the free market, on the other;
b)to plan/arrange an efficient technological risk management clarifying the interaction between potential risk producers liability regime and the prevention of their actual fulfilment, and verify whether and how liability systems can actually react to the materialization of the contemporary risks;
c)in the case of a negative answer to the question made above, to devise institutional answers able to better distribute and guarantee the costs of compensation while contributing to risk reduction. <<<

Timescale

24 months

National and international background

The interest of the contemporary societies for the so-called "topics of modernity" - above all the scientific and technological research and its effects on the protection of the health - are in continuous expansion. The reason of that is above all the crisis of the paradigm of an infallible science, confirmed from cases like thalidomide and the Creutzfeld-Jacob disease, that for a long time have occupied the first pages of newspapers.
Today's attention, therefore, is mainly devoted to products safety (also to food products), environmental, drugs and medical devices safety.
These fields more and more conquer importance in the context of the civil liability, limiting the importance of traditional fields like the working activities and the circulation of the vehicles.
Despite the positive and vital effects of these technological progresses, it has been risen the issue of the physical and biological impact on human beings of these inventions, particularly of these magnetic fields originating from non-ionising radiations.
With reference to the low frequency magnetic fields (50 Hz), epidemiological studies suggest an association between exposition to them and a modest, but significant, increase in the children leukaemia. However, no correlation between these fields and cancer appears to be known.
The scientific debate is even more intense on long-term effects of radio frequency and microwaves (100 kHz- 300 GHz).
We should then devote more attention to epidemiological studies that are not always kept in due evaluation because of their inability to establish a clear causal link between an agent and a cancer, for instance.
In 1999, the EU Council adopted Recommendation 99/519/CE (of July 12 1999) recalling the Community duty to protect European citizens from certain negative effects of electromagnetic fields exposure and the need to provide with an organically regulation and the possibility for Member states to enact more protective rules according to the precautionary principle tempered by the rationality principle and the cost-benefit analysis.
The Italian legislator regulated with a statute the subject only in 2001 by a framework law (l. 22 February 2001 n.36) on the protection from electric, magnetic and electromagnetic fields. Until this moment the applied rules were those provided for in d.p.c.m. 23 of 23 1992, providing for the upper limits to exposure to magnetic and electric fields generated at the frequency of 50 Hz in living areas and in the external environment and provided for in d.m. 5 gust 5 1998 establishing the limits of radio frequency compatible with human health.
This was an insufficient regulation since the envisaged upper limits of exposure were intended to avoid so called acute effects; that is for those effects whose causal link is well and clearly established experimentally. Those limits could clearly not be applied to avoid long-term chronic effects since, for instance the ground level to fields of 50 Hz evidenced by epidemiological studies – consisting of 0,2-0,5 microtesla- is much lower than the ground level of 100 microtesla provided for in the d.p.c.m. of April 23 1992.
Moreover, the last statute mentioned attempts to draft an integrated approach of various aspects concerning protection against electromagnetic pollution taking into account both health related aspects and environmental protection with specific reference to the landscape protection in case of building activities.
The GMO's field is much more problematic because the open precautionary attitude of the EU in regulating it has been perceived within the WTO as a protectionist measure hampering international commerce from countries exporting GMO (USA, Canada, Argentina) starting up legal controversies.
In order to explain this divergence, it is necessary to remember the diversity of aims of the two organisms, since the WTO protects the free trade, instead in the European Constitution there are also the sustainable development and the consumers' protection (Article III-119 and Article III-120).
To the uncertainties and the dangers (but also to the opportunities) of the new technologies the informatics' problems can be added. Even if they are from a long time object of studies and researches, continue to constitute a problematic node of the regulation, both national and international.
Internet communication – in its actual structure of "open line" - has led to an ever greater diffusion of new technologies since Ninety Years. In fact, the electronic equipments, computers and digital new system of communication are now even in our daily life. The technologic evolution has raised the necessity to set legal dispositions which permit to grant legal enforceability to contracts made by electronic documents, and to give digital signature the same effects regarding certainty, authenticity, and paternity as certified signature.
Global networks represent a source of economic, social and cultural development, and at the same time, they have qualities that have to be assessed in the light of the individuals right to privacy. One of the main issues in todays cyberlaw is represented by spamming, a constantly growing problem and so difficult to fight on juridical basis. This situation led Member States to start passing legislation to protect their citizens' fundamental right to privacy. Within the scope of the European Community this legislation was analysed from the perspective of the internal market, concluding that it could represent a barrier. There is an online privacy crisis and a great lack of enforcement of positive regulation. The informal social norms are largerly accustomed in the internet community. The Internet, in that perspective, is definitively a "test-bench" for the protection of privacy. In other terms, data protection is more and more viewed by public and private policy makers as a fundamental precondition for the development of ecommerce. This is the main purpose of regulation concerning the processing of personal data and the protection of privacy in the electronic communications sector.
The more promising frontiers of computer science is to develop a computing environment where human tasks will be "delegated" to hardware and software systems.
There are technologies - already in phase of experimentation or deployment - for the control and "management of rights" over digital goods.
The semantic web is an evolution of the present World Wide Web and enables the net with new functionalities. It will be easier to organize and to share information.
The implementation of the semantic web would allow to transform the whole web into a huge, powerful and easily accessible database.
The applications of these new technologies are manifold: e-commerce, intellectual property, net security, etc.
If this environment increases - apparently - the easy enjoyment of the digital good, on the other hand, it creates new and different risks. The nature of the possible damages - linked or not to a contractual relationship - changes.
In a contractual relationship, the problem arises from the unequal bargaining power between actors that operate in the digital context.
Without a contractual relationship, possible damages in the digital space can be consequence of a course of action that can be hardly arranged within the traditional elements of civil liability. The damage can arise from the potentialities of the advanced digital technology more that form the human conduct. An autonomous intelligent software agents can be thought as an example.
Civil liability should provide a basis for the development and deployment of digital technologies that incorporate values largely shared among the western legal tradition, such as the democracy of interest selection and protection, privacy respect, freedom of thought and free competition.
These ones are the typical examples of the conflict that appears to be contrasting free market economies and health protection and individual safety.
These are the reasons why the hypotheses of scientific-technological innovation that have been over described of scientific-technological innovation which are problematic with reference to the involved players and are a test-bench for a practical application of the precautionary principle in its interplay with liability rules as a regulatory device.
However, it is necessary to overcome the seeming dichotomy between compensation of damages to the person and technological and research development in free market economies. The study will analyse the regulative function of tort liability with reference to the notion of risk.
The best institutional answer, in these cases, does not seem to be the traditional kind of liability, that it takes part subsequently to the production of the damage (it is called intervention ex post).
In these cases, indeed, we face an uncertain scientific knowledge. For instance, science is not able to dissolve all doubts neither on the long-term impact on human health of exposition to electrical, magnetic and electromagnetic fields nor on the consumption of food containing g.m.o. Moreover, the probabilities of damage are, in the light of the scientific acquaintances available, today very remote, so the civil liability would not be in a position to supplying an adequate level of deterrence, also in consideration of the high profits, which it is possible to make immediately. At the same time, the civil liability is not able to guarantee an optimal level of compensation, because of the catastrophic damages than can occur.
The transnational nature of the damages would render for sure more uncertain and probably ineffective the civil liability as an instrument of compensation. Moreover, it is difficult to think that the traditional criteria on which the liability is based from the times of the Roman law can be useful instruments in order to attribute the liability. Analogous considerations can be made for the other types of liability, in the first place the penal liability and that administrative one.
After all, if the function of social regulation of the civil liability grows, role previously belonged to other branches of the law, for instance the criminal law and administrative law, the preventive role of the precautionary principle grows at the same time.
The main doubt to which legal science is called to giving an answer is the way to influence the political action in these situations, since waiting for the damages would expose the humanity to excessive and serious dangers. <<<