La detenzione amministrativa degli stranieri. Nuove frontiere in materia di liberta' personale

La detenzione amministrativa degli stranieri, pur condividendo il carattere tipicamente afflittivo e stigmatizzante delle pene, non si fonda sulla commissione di un reato e non gode delle medesime garanzie previste dal sistema della giustizia penale. Nel nostro ordinamento l’inadeguatezza della legislazione, l’ampio margine di discrezionalità rimesso all’autorità di pubblica sicurezza, nonché il debole potere di sindacato giurisdizionale rimesso all’autorità giudiziaria, raggiungono il loro apice problematico nell’ambito delle pratiche di privazione della libertà personale che hanno per destinatari gli stranieri maggiormente vulnerabili, ossia quelli appena giunti sul territorio e il cui status giuridico non è ancora stato accertato (c.d. situazione di pre-admittance). E’ proprio sulla loro condizione che il presente lavoro si focalizza maggiormente. Le detenzioni de facto degli stranieri in condizione di pre-admittance sono analizzate, nel primo capitolo, a partire dal “caso Lampedusa”, descritto alla luce dell’indagine sul campo condotta dall’Autrice. Nel secondo capitolo viene ricostruito lo statuto della libertà personale dello straniero sulla base dei principi costituzionali e, nel terzo capitolo, sono analizzati i principi che informano il diritto alla libertà personale nell’ambito delle fonti sovranazionali, con particolare riferimento al diritto dell’Unione Europea e al sistema della Convenzione Europea dei Diritti dell’Uomo. Sulla scorta dei principi indagati, nel quarto capitolo è tracciata l’evoluzione legislativa in materia di detenzione amministrativa dello straniero in Italia e, nel quinto capitolo, è approfondito il tema dei Centri dell’immigrazione e delle regole che li disciplinano. Nelle conclusioni, infine, sono tirate le fila del percorso tracciato, attraverso la valutazione degli strumenti di tutela in grado di prevenire le pratiche di privazione della libertà informali e di garantire uno standard minimo nella tutela della libertà individuale, anche nelle zone di frontiera del nostro ordinamento.

Internet Service Providers Liability in Spain

The article focuses on the current situation of Spanish case law on ISP liability. It starts by presenting the more salient peculiarities of the Spanish transposition of the safe harbours laid down in the E-Commerce Directive. These peculiarities relate to the knowledge requirement of the hosting safe harbour, and to the safe harbour for information location tools. The article then provides an overview of the cases decided so far with regard to each of the safe harbours. Very few cases have dealt with the mere conduit and the caching safe harbours, though the latter was discussed in an interesting case involving Google’s cache. Most cases relate to hosting and linking safe harbours. With regard to hosting, the article focuses particularly on the two judgments handed down by the Supreme Court that hold an open interpretation of actual knowledge, an issue where courts had so far been split. Cases involving the linking safe harbour have mainly dealt with websites offering P2P download links. Accordingly, the article explores the legal actions brought against these sites, which for the moment have been unsuccessful. The new legislative initiative to fight against digital piracy – the Sustainable Economy Bill – is also analyzed. After the conclusion, the article provides an Annex listing the cases that have dealt with ISP liability in Spain since the safe harbours scheme was transposed into Spanish law.

Liability for Copyright Infringements on the Internet: Host Providers (Content Providers) - The Geman Approach

Copyright infringements on the Internet affect all types of media which can be used online: films, computer games, audio books, music, software, etc. For example, according to German studies, 90% of all copyright violations affecting film works take place on the Internet. This storage space is made available to such infringers, as well as to others whose intentions are legal, by hosting providers. To what extent do hosting providers have a duty of care for their contribution to the copyright infringements of third parties, i.e. their users? What duties of care can be reasonably expected of hosting providers to prevent such infringements? These questions have been heavily debated in Germany, and German courts have developed extensive case law. This article seeks to examine these questions by assessing German jurisprudence against its EU law background.

Google face à la justice française et belge Nouvelles décisions en matière de droit d’auteur

Internet Service Providers’ liability for copyright infringement is a debated issue in France and Belgium, particularly with respect to intermediaries such as providers of hyperlinks and location tool services for which the e-commerce directive does not set explicitly any exemption from liability. Thus, the question arises among other things whether the safe harbour provisions provided for in respect of caching and hosting also could apply to search engines. French and Belgian Courts had recently to decide on this issue in several cases concerning Google’s complementary tools such as Google Videos, Google Images, Google Suggest and Google News. This article seeks to give a summary of and to assess this recent case law.

Diverse Readings of the Court of Justice Judgments on Copyright Work

EU law’s impact on the meaning of the copyright work for a long time seemed limited to software and databases. But recent judgments of the CJEU (Infopaq, BSA, FootballAssociation [Murphy], Painer) suggest we have entered an era of harmonization of copyright subject-matter, after decades of focus on the scope of exclusive rights and their duration. Unlike before however, it is the Court and not the legislator that takes centre stage in shaping pivotal concepts. This article reviews the different readings and criticisms the recent case law on copyright works evokes in legal doctrine across the EU. It puts them in the wider perspective of the on-goingdevelopment towards uniform law and the role of the preliminary reference procedure in that process.

Domain Name Transfer before Slovak and Czech Courts

In Europe, a disagreement persists in the courts about the possibility of plaintiffs to request a domain name transfer in domain name disputes. In the last ten years, Slovak and Czech courts also produced some jurisprudence on this issue. Interestingly, the BGH’s influential opinion in the shell.de decision, which denied domain name transfer as an available remedy under German law back in 2002, wasn’t initially followed. To the contrary, several Slovak and Czech decisions of lower courts allowed a domain name transfer using two different legal bases. This seemingly settled case law was rejected a few months ago by the globtour.cz decision of the Czech Supreme Court, which refused domain name transfers for the time being

Spanish Supreme Court Rules in Favour of Google Search Engine... and a Flexible Reading of Copyright Statutes?

On 3 April 2012, the Spanish Supreme Court issued a major ruling in favour of the Google search engine, including its ‘cache copy’ service: Sentencia n.172/2012, of 3 April 2012, Supreme Court, Civil Chamber.* The importance of this ruling lies not so much in the circumstances of the case (the Supreme Court was clearly disgusted by the claimant’s ‘maximalist’ petitum to shut down the whole operation of the search engine), but rather on the court going beyond the text of the Copyright Act into the general principles of the law and case law, and especially on the reading of the three-step test (in Art. 40bis TRLPI) in a positive sense so as to include all these principles. After accepting that none of the limitations listed in the Spanish Copyright statute (TRLPI) exempted the unauthorized use of fragments of the contents of a personal website through the Google search engine and cache copy service, the Supreme Court concluded against infringement, based on the grounds that the three-step test (in Art. 40bis TRLPI) is to be read not only in a negative manner but also in a positive sense so as to take into account that intellectual property – as any other kind of property – is limited in nature and must endure any ius usus inocui (harmless uses by third parties) and must abide to the general principles of the law, such as good faith and prohibition of an abusive exercise of rights (Art. 7 Spanish Civil Code).The ruling is a major success in favour of a flexible interpretation and application of the copyright statutes, especially in the scenarios raised by new technologies and market agents, and in favour of using the three-step test as a key tool to allow for it.

Oblivion, Erasure and Forgetting in the Digital Age

In light of the recent European Court of Justice ruling (ECJ C-131/12, Google Spain v Spanish Data Protection Agency),the “right to be forgotten” has once again gained worldwide media attention. Already in 2012, whenthe European Commission proposed aright to be forgotten,this proposal received broad public interest and was debated intensively. Under certain conditions, individuals should thereby be able todelete personal data concerning them. More recently – in light of the European Parliament’s approval of the LIBE Committee’samendments onMarch 14, 2014 – the concept seems tobe close to its final form.Although it remains, for the most part,unchanged from the previously circulated drafts, it has beenre-labelled as a“right of erasure”. This article argues that, despite its catchy terminology, the right to be forgotten can be understood as a generic term, bringing together existing legal provisions: the substantial right of oblivion and the rather procedural right to erasure derived from data protection. Hereinafter, the article presents an analysis of selected national legal frameworks and corresponding case law, accounting for data protection, privacy, and general tort law as well as defamation law. This comparative analysis grasps the practical challenges which the attempt to strengthen individual control and informational self-determination faces. Consequently, it is argued that narrowing the focus on the data protection law amendments neglects the elaborate balancing of conflicting interests in European legal tradition. It is shown thatthe attemptto implement oblivion, erasure and forgetting in the digital age is a complex undertaking.

Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers

Internet connectivity providers have been ordered to block access to websites facilitating copyright infringement in various EU countries.In this paper, the proportionality of these enforcement measures is analysed. After addressing preliminary questions, the recent ECJ ruling UPC Telekabel Wien (C-314/12) and then case law from all Member States are examined from the perspective of proportionality. Finally, five criteria are submitted for proportionality analysis, and a proportionality evaluation is provided. The major observation is that the underlying goal of copyright enforcement has implications on how the scale tilts. In particular, ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is considered legitimate. On the other hand, if the goal is to decrease the impact of infringement, higher efficiency and economically quantifiable results may be required

Rechtsmittel gegen Entscheide des juge d'appui bei der internationalen Schiedsgerichtsbarkeit der Schweiz

The author examines whether and by which means the decisions handed down by the State judge giving his support to the arbitral proceeding (juge d'appui) may be appealed. Every relevant Article in the PILA (Private International Law Act) is addressed and analyzed in this regard (Art. 179(2) and (3), Art. 180(3), Art. 183(2), Art. 184(3) and Art. 185) by reference to the present legal doctrine and case law. Concerning the stages of appeal, the view is held that by direct or analogous application of Art. 356(2) CPC (Civil Procedure Code) the juge d'appui has jurisdiction as the sole instance of the Canton to render decisions in support of the arbitral tribunal. On the federal level however, the parties shall have the right to appeal against these decisions by filing a civil law appeal before the Swiss Federal Supreme Court, with the exception of most decisions given by juge d'appui within the meaning of Art. 180(3) PILA. As to this federal appeal, it is established that the case law of the Swiss Federal Supreme Court under the FTA (Act on the Federal Tribunal) indicates the Court's inclination to qualify both negative and positive decisions issued by the juge d'appui as final decisions in terms of Art. 90 FTA. In reference to the upcoming revision of the PILA's 12th Chapter the author concludes that the legislator might implement some clarifications in the current legal framework. It seems particularly advisable to ensure that all relevant Articles in the PILA regarding decisions of the juge d'appui explicitly reference to Art. 356(2) CPC. Moreover, the author is of the opinion that it would also be expedient to specify the

Swiss Patent Jurisprudence 2012

The new Swiss Federal Patent Court, with nationwide first-instance jurisdiction over all civil patent matters, has been operating since January 1, 2012. This article reviews and contextualizes the most important patent cases published in 2012 by the Swiss Federal Patent Court and the Swiss Federal Supreme Court. More specifically, the article covers cases on issues such as the evidentiary status of party expert opinions, the formal requirements for requests for injunctive relief, the infringement and non-obviousness tests employed by the Swiss Federal Patent Court, the use of reports and statements from technical judges in lieu of expert opinions, and the procedural devices for the pre-trial taking of evidence, in particular the new patent-specific device of precise description. The author suggests that designing the Federal Patent Court to include technically trained judges may lead to a more automatic adoption of the practices and case law of the European Patent Office. The article concludes that the revamped Swiss patent litigation system has the potential of turning Switzerland into a competitive venue for the adjudication of patent matters in Europe.

A discourse-theoretic perspective on the bioethical-legal framework of genetic counseling

The reflexive nature of reason and the unique relationship reason shares with autonomy in Kant's philosophy is the theoretical basis of this dissertation. The principle of respect for autonomy undergirds the two main legal and ethical tenets of genetic counseling, an emerging profession trying to accommodate the sweeping changes that have occurred in clinical genetics, clinical ethics, and case law applicable to medicine. These two tenets of the counseling profession, informed consent and nondirectiveness, both share a principlist interpretation of autonomy that I argue is flawed due to its connection to: instrumental forms of reasoning, empirical theories of action supporting rational choice, and a liberal paradigm of law. I offer an alternative bioethical-legal framework that is based in the Kantian tradition in law and ethics through the complex theories of Jurgen Habermas. Following Habermas's reconstruction of the mutually constituting notions of private and public autonomy, I will argue for a richer conceptualization of autonomy that can have significant implications for the legal and bioethical concepts supporting the profession of genetic counseling, and which can ultimately change counseling practice. ^

Commentary of GATS Article IX : Business Practices

Commentary of Article IX of the General Agreement on Trade in Services (GATS) on business practices, including a textual analysis of the provision, as well as an examination of the pertinent WTO case law and of other related international and regional rules and practices.

Communication services

This is a concise encyclopedia entry that discusses the applicable law of the World Trade Organization (WTO) with regard to telecommunications, audiovisual, postal and courier services, which are framed in terms of existing WTO classification under the common heading of 'Communication Services'. The chapter analyzes the pertinent rules of the General Agreement on Trade in Services (GATS), the present state of commitments, the problems faced in light of the recent technological advances that affect, albeit differently, all these sectors. It includes insights from the case-law and a brief overall appraisal of the prospects for change.

Minors’ Access to Contraceptive Services

Over the past 30 years, states have expanded minors’ authority to consent to health care, including care related to sexual activity. This trend reflects U.S. Supreme Court rulings extending the constitutional right to privacy to a minor’s decision to obtain contraceptives and concluding that rights do not “come into being magically only when one attains the state-defined age of majority.” It also reflects the recognition that while parental involvement is desirable, many minors will remain sexually active but not seek services if they have to tell their parents. As a result, confidentiality is vital to ensuring minors’ access to contraceptive services. Even when a state has no relevant policy or case law, physicians may commonly provide medical care to a mature minor without parental consent, particularly if the state allows a minor to consent to related health services.