Vol. 8.1 March 2004

Giovanni Pascuzzi, Il diritto dell'era digitale. Tecnologie informatiche e regole privatistiche (Bologna: Società editrice il Mulino, 2003), 208 pp., ISBN 88-15-08974-8, EUR 15.80.

This book focuses on the role of the law in a digital age. As we may all know by now, the dynamics of society increase through the implementation of Information and Communication Technologies (ICT). Connections become weaker, changes take place quicker and innovations appear one after another. Developments such as file-sharing (Napster, KaZaa), virtual child pornography, on-line gambling and many other applications have shown that the concept of the 'malleable society' - according to which the government, from a central point, controls and provides solutions for social problems by means of law and legislation - becomes a relative one in an on-line world. Developments that affect the foundations of law most strongly are that of the fading or disappearance of territorial borders, the process of dematerialization and the decline in human intervention. These developments touch the very core of the law; law is very often territory-bound, is focused more or less on concrete physical objects and considers only individuals or legal persons as possible actors (not the computer). In addition, there are a number of developments that influence the law, though less fundamentally; to name a few, the disappearance of organizational boundaries (virtualization), the fading of social structures, the concentration of information as well as the changing of ideas about speed and deadlines.

Giovanni Pascuzzi is one of the many authors who published a book on these and other fundamental problems related to law in a digital era. Pascuzzi has written his analyses in Italian, which makes it less attractive for broader distribution. Nevertheless, the book will be of interest to those readers who are interested in views from another perspective than usually presented in books and articles (i.e. the US perspective). The author makes use of both Italian and international sources for his discussion of a broad range of issues with reference to legislative developments in Italy. Having briefly set out what he sees as the challenges facing the digital world, Pascuzzi begins the first part of his book with an analysis of issues such as e-commerce, form-requirements (writing and written signature), the protection of privacy and copyright in an on-line environment and digital money. By designating a chapter to each of these issues and discussing the issues from both an Italian and an international perspective, the author gives the work a comparative character. In the second part of the book, Pascuzzi addresses the challenging implications of deterritorialization, dematerialization and technologization. Finally, the author discusses the role of self-regulation, contractual agreements, technology as a regulatory instrument and on-line dispute resolution. In discussing the issue of technologization, Pascuzzi states that it is almost tautological to note that law in the digital age is a 'technologized law' and that one must understand what the term 'technologization' means in the context under discussion. Hence, it may refer to technology being used as a regulatory mechanism (for example filtering technology), technology as protection (for example digital rights management systems) and technicians as sources of rules (standards set by industry).

A core theme in this book is the changing role of the rule of law in a virtual society. The rule of law in the nation-state (i.e. law rooted in a given territory) has enabled democracy to become established and strengthened, while allowing the fundamental rights of the individual to be recognized. Pascuzzi argues that the possibility (offered by web technologies) of recomposing a community of individuals according to a standard that is different from the territory of a given state requires a redefinition of concepts such as the legitimation of power, democratic procedures, the rights of citizens, and so on. And he continues: it is the task of human beings to ensure that the availability of new technologies does not result in a step backwards as far as values are concerned.

The key question then is, of course, how such a redefinition of concepts will take its form and who decides on what the end result will be. Pascuzzi does not answer this question, and thus essentially adds nothing really new to the debate. Of course, many possible scenarios could have been presented. What about the following? Recently, we have seen a move towards what could be called re-territorialization. Although the Internet still is the most global communication and trading forum in existence today, a closer look reveals that small communities - one could say 'worlds' - arise. The opportunities offered by technology to lock and filter information could have an interesting impact on the potentially borderless reach of on-line communication. We see that Internet Service Providers (ISPs), by means of filtering technology, start applying their own values and rules to the e-environment they control. ISPs set their own standards as regards the information they distribute or not, and thus create their own small community. Clearly, such a development can be seen where ISPs block spam, illegal information and information that does not satisfy their 'quality' criteria. This development may be a very first indication that the on-line world will slowly reshape itself again and create new on-line borders - not the well-known geographical borders, but borders established by information distributors and other intermediary players in the digital world. One scenario could then be that the on-line world becomes a landscape with e-communities that distinguish themselves by providing a high level of consumer protection and spam-free zones or communities that market themselves by allowing communication zone where no rules apply. In essence, we will then have a new replica of our familiar off-line world.

Overall, Pascuzzi's work provides a broad overview of the key challenges and developments in the area of law and Internet regulation. Anyone perhaps put off by thinking they do not need to know about developments in other countries than the US and UK should think again. For case law such as the French Yahoo-Liro decision has shown that in an on-line world any law can apply to global e-communication, including Italian law.

Corien Prins,
Professor of Law and Informatisation, Centre for Law, Public Administration and Informatisation, Tilburg University, The Netherlands

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