Documentos de Académico
Documentos de Profesional
Documentos de Cultura
ISSN: 1864-2128
Gunnar Duttge, Sang Won Lee (Hg.)
The Law in the Information and
Risk Society
Gttinger Juristische Schriften
G
t
t
i
n
g
e
r
J
u
r
i
s
t
i
s
c
h
e
S
c
h
r
i
f
t
e
n
,
B
a
n
d
1
0
D
u
t
t
g
e
/
L
e
e
(
H
g
.
)
T
h
e
L
a
w
i
n
t
h
e
I
n
f
o
r
m
a
t
i
o
n
a
n
d
R
i
s
k
S
o
c
i
e
t
y
Universittsverlag Gttingen Universittsverlag Gttingen
The information and risk society poses a new challenge for the law in all its frag-
ments. Modern media communication and technologies increase peoples prospe-
rity while stating new risks with not uncommonly devastating crisis-potential: The
banking crisis, the safety net for the euro zone and the nuclear incident in Fukus-
hima are only the latest forms of those specifc modern common dangers which the
law is facing in many cases due to its domestically limited validity - not or not
suffciently prepared. In order to promote the international dialog within the juris-
prudence there was a conference in October 2010 held by the faculty of law of the
Georg-August-Universitt, supported by the chair of GAU, together with the faculty
of Seoul National University School of Law discussing main issues of law in a modern
information and risk society. With this volume the results of this convention shall be
made accessible to everybody interested. Thereby it illustrates not only the variety of
new issues and aspects, but also reveals that this can only be the beginning on the
way to a deeper understanding of the complex correlations.
Volume 10 in the series Gttinger Juristische Schriften
The series is published by the Faculty of Law of the Georg-August-Universitt Gt-
tingen und makes events at the faculty publicly available.
Gunnar Duttge and Sang Won Lee (Hg.)
The Law in the Information and Risk Society
This work is licensed under the
Creative Commons License 3.0 by-nd,
allowing you to download, distribute and print the
document in a few copies for private or educational
use, given that the document stays unchanged
and the creator is mentioned.
You are not allowed to sell copies of the free version.
Erschienen als Band 10 in der Reihe Gttinger Juristische Schriften
im Universittsverlag Gttingen 2011
Gunnar Duttge and
Sang Won Lee (Hg.)
The Law in the Information
and Risk Society
Gttinger Juristische Schriften,
Band 10
Universittsverlag Gttingen
2011
Bibliographische Information der Deutschen Nationalbibliothek
Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der
Deutschen Nationalbibliographie; detaillierte bibliographische Daten sind im
Internet ber <http://dnb.ddb.de> abrufbar.
Kontakt
Prof. Dr. Gunnar Duttge
e-mail: lduttge@gwdg.de
Dieses Buch ist auch als freie Onlineversion ber die Homepage des Verlags
sowie ber den OPAC der Niederschsischen Staats- und
Universittsbibliothek (http://www.sub.uni-goettingen.de) erreichbar und darf
gelesen, heruntergeladen sowie als Privatkopie ausgedruckt werden. Es gelten
die Lizenzbestimmungen der Onlineversion. Es ist nicht gestattet, Kopien oder
gedruckte Fassungen der freien Onlineversion zu veruern.
Satz und Layout: Alice von Berg
Umschlaggestaltung: Jutta Pabst
2011 Universittsverlag Gttingen
http://univerlag.uni-goettingen.de
ISBN: 978-3-86395-012-5
ISSN: 1864-2128
Table of Contents
Preace ii
Greeting rom the laculty o Law o Georg-August-Uniersitt Gottingen ix
SECTION 1:
CONSTITUTIONAL PRINCIPLES, DATA PRIVACY AND MEDICAL LAW
Hong Sik Cho
Liberal Democracy in State o Lmergency:
Seen By Standing on the Shoulders o Carl Schmitt 3
Werner Heun
Risk Management by the Goernment and the Constitution 15
Frank Schorkopf
Inormation as the Basis o Parliamentary Responsibility or Luropean Integration 31
Gunnar Duttge
1he Right to Ignorance in Medicine 41
Erwin Deutsch
Recent Research Accidents and New Approaches to Vaccination 49
SECTION 2:
CONTRACT LAW, INDUSTRIAL LAW AND OVERNIN STOC! E"C#ANE
Youngjoon Kwon
Judicial Modiication o Contract in Relation to the Change o Circumstances 65
Rdiger Krause
New Deelopments in Data Priacy or Lmployees in German Law 83
1able o Contents
i
SECTION $:
INTERNET LAW AND INTELLECTUAL PROPERTY
ohn !" #eitner
Korean Netizen Lquality in the Shadow o Real Name Veriication 103
Seong Wook Heo
An oeriew o ood saety regulation in Korea
- Precautionary Principle s. Cost-Beneit Analysis - 121
SECTION %:
CRIMINAL LAW AND CRIMINOLOY
Sang Won #ee
Obscenity in a Changing Society 133
!ar$a #aura %&h'
Lndanger Law: \ar on Risks in German Criminal Law 145
List o Contributors 165
P&efa'e
1he inormation and risk society poses a new challenge or the law in all its
ragments. Modern media communication and technologies increase people`s
prosperity while stating new risks with not uncommonly deastating crisis-
potential: 1he banking crisis, the saety net or the euro zone and the nuclear
incident in lukushima are only the latest orms o those speciic modern common
dangers which the law is acing - in many cases due to it`s domestically limited
alidity - not or not suiciently prepared.
1he requently transboundary and supranatural releance o these new risks lead to
a ineitable international cooperation concerning the eorts o a legal risk
limitation, in respect o the dierent constitutional and cultural circumstances,
howeer, this is a diicult exercise. Initial to all common eorts o dealing with
this challenge there is the international and intercultural dialog, een i the
implications and the eentually implemented solutions drit apart at national leel
in the end. In order to promote the international dialog within the jurisprudence
there was a conerence in October 2010 held by the aculty o law o the Georg-
August-Uniersitt, supported by the chair o GAU, together with the aculty o
law o the Seoul National Uniersity discussing main issues o law in a modern
inormation and risk society. \ith this olume the results o this conention shall
be made accessible to eerybody interested. 1hereby it illustrates not only the
ariety o new issues and aspects, but also reeals that this can only be the
beginning on the way to a deeper understanding o the complex correlations.
Gottingen,Seoul, May 2011 (he Editors
&eet(n) f&o* t+e ,a'-lt. of La/ of
eo&)0A-)-st0Un(1e&s(t2t 3tt(n)en
Gunnar Duttge
My dear colleagues o the respectable and extremely renowned law aculty o the
Seoul National Uniersity,
my dear colleagues rom Gottingen,
ladies and gentlemen, dear guests,
it is my great pleasure to cordially welcome all o you - and a ery warm welcome
goes to our guests rom Seoul who traelled so ar to be with us today. I may
express this warm welcome in my position as a medical and criminal law proessor
as well as on behal o my colleague Pro. Langeneld, dean o the local law school,
who apologizes or not being here due to other commitments. loweer, she sends
her warmest regards.
Last eening, ice president Pro. Mnch already greeted and welcomed you in
the name o the chairmanship o Georgia Augusta. Gottingen`s law aculty and its
members are no less cheerul. Some o these members are currently present or will
join us in the course o the next hours or by tomorrow.
1he immediate reason o our meeting is an initation by Gottingen`s aculty o
law which joins in the larger context o Georgia Augusta`s endeaors to strengthen
the existing international cooperation and to promote as well as extend
internationalization o the sciences.
In times o globalization across all areas o lie, haing been initiated long ago,
it should be natural and taken or granted that one`s own thoughts in the course o
Gunnar Duttge
x
Law and its scientiic adaptation don`t end at the national borders. 1hereore we
need to pursue with great interest the solutions and debates about similar, oten
identical legal questions o other legal systems. 1hereby we are oered the
opportunity to critically analyze and conront our own legal system. lor criminal
law, howeer, the amazingly well established relationship with our colleagues rom
South Korea is no news. lor decades now, and or hopeully many more,
proessors as well as doctoral students hae iaciously exchanged ideas.
Globalization, neertheless, reaches all areas o law. It certainly embraces ciil and
constitutional law and all other interdisciplinary ields, one o which is medical and
bio law, a traditional ield in Gottingen which has seen an upward trend in recent
years. 1he local center o medical law has strong ties with Lwha Uniersity`s
Institute or Biomedical Law & Lthics in Korea.
\ith regards to recent deelopments in Gottingen`s relationship to Seoul
National Uniersity and its law aculty, the meetings and lecture eents on the
occasion o the opening o a branch o Gottingen Uniersity in Seoul are especially
worth mentioning.
Just last year we were ortunate to welcome here in Gottingen the president o
the Seoul National Uniersity, who, during his isit to Gottingen`s Center or
Medical Law, oiced a strong interest in urther communication and exchange o
ideas, particularly between both law schools. \ith this background, we can take it
up rom here and with this conerence urther strengthen existing relations.
Besides our ast uniied interest in getting to know each other or institutional
reasons, we join today chiely because o our shared pursuit o the exchange o
scientiic ideas and or the purpose o deepening our knowledge o recent queries
o Law in today`s orged ahead risk and inormation society.
As you all know, Law is acing new societal challenges which can no longer be
coped with through conentional measures. One example is society`s growing
heterogeneity regarding its constitution and concomitant problems o integration,
another one the exorbitant increase in signiicance o the media and new orms o
communication in all public areas. An especially demanding societal challenge is
the - in ormer times unimaginable - dimension o interconnectedness and all the
consequences thereo, such as inormational protection o priacy, on one hand,
and on the other hand the amendment o responsibilities regarding the legal
sanctioning o harm done, through a struggle with incomprehensible complications
o causalities. 1hese catchwords are only a ew o many. 1hey stand or all the new
problems and questions which aect the interdisciplinary ields o legal sciences.
1he array o releant topics is broad and hardly lucid, yet we - and I mean all
o us as we are gathered here today - seemingly managed to perectly single out the
most essential questions or this conerence which we will go on to discuss in
detail later throughout the day.
I am exceptionally thrilled about eerything we are going to hear and urther
deliberate oer today and tomorrow. I wish to already thank eeryone ery much
who helped acilitate this conerence, and make it possible in the irst place, by
Greeting rom the laculty o Law o Georg-August-Uniersitt Gottingen
xi
contribution within the ramework o our discussions. I wish to especially thank
my dear colleague Pro. Kuk Cho, who on short notice accepted my oer and
within no time set the course or today`s conerence on track as well as established
contacts. It would not hae been possible to get together here in Gottingen today
without your committed support, dear Pro. Kuk Cho. 1hanks again!
Now, I would like not to urther prolong the commencement o the scientiic
part o this conerence and thereore wish, on behal o the dean o Gottingen`s
aculty o law, or the conerence to run smoothly.
One o the most popular German poems includes the ollowing beautiul and
apt motto: Inherent to eery new beginning is a special magic`.
SECTION 1:
CONSTITUTIONAL PRINCIPLES, DATA PRIVACY AND
MEDICAL LAW
L(be&al De*o'&a'. (n State of E*e&)en'.:
Seen 4. Stan5(n) on t+e S+o-l5e&s of Ca&l S'+*(tt
Hong Sik Cho ) *
I6 T+e C-&&ent lobal ,(nan'(al C&(s(s an5 !o&ea7s Res8onse
Len though the global inancial crisis was deemed to be as seere emergency as
the worldwide depression o the 1930s, the Korean goernment has not yet taken
e+tralegal measures. Since basic constitutional norms presuppose a background o
social and political stability, at times o emergency, whether it being military
exigencies in the theater o war` or less grae, but unusual and urgent conditions`
such as current inancial crisis, the basic constitutional norms are subject to
suspension. 1he Constitution o Korea, in Article 6, proides that in time o a
grae inancial or economic crisis, the President may take the minimum inancial
and economic action or issue orders that hae the eect o an Act when, and only
when there is an urgent need to take measures or the maintenance o national
security or public peace and order, and there is no time to await the conocation o
the National Assembly. Despite the broad presidential powers prescribed by the
Constitution, I would say that the Korean goernment has responded to the
inancial crisis with much constitutional care and ully aware o the temptation o
oer-reactions.
loweer, aside rom the e+tralegal measures, the Korean goernment did take
eery means without departing rom established principles. Among the measures
taken by the Korean goernment has increased expenditure on research and
deelopment, introducing numerous legislatie bills, taking arious administratie
1his is a reised ersion o the paper published at ,ationa- (aiwan .ni/ersit0 #aw Re/iew ol. 4, no. 3,
55-84 ,Dec., 2009,.
long Sik Cho
4
options, proiding suicient liquidity and executing budget earlier than scheduled.
1hese means taken by the Korean goernment seemingly are within the scope o
its administratie discretion. loweer, the Korean Assembly was criticized or
impeding goernmental eorts by not timely resoling the legislatie bills. In
particular, because o the deadlock surrounding the controersial media bills, the
Korean Assembly could not ocus on bills which aect the daily lies o people
such as a bill aimed at reiing small-scale shops. In spite o apparent lack o sense
o responsibility on the side o the political leaders, the Korean economy is
gradually recoering rom its downturn.
Such being the case, the goernmental reaction to the crisis has not been
subject to judicial reiew. 1here are a handul o the Constitutional Court cases
dealing with the IMl bailout crisis`, a inancial crisis the Korean people deem ar
seerer than the current crisis. Len though much more swit and radical measures
were taken by the Korean goernment, none took on the e+tralegal orm, and none
were declared unconstitutional by either the Supreme Court or the Constitutional
Court. Gien the lack o e+tralegal actions taken by the goernment and releant
precedents, I would like to address general issues related to emergency power rom
theoretical perspecties.
II6 W+. Ca&l S'+*(tt (n t+e State of C&(s(s9
Carl Schmitt, a jurist with an enormous inluence on German political and legal
thought, is known not only or his charge that liberalism is nothing but one
ideology seeking to impose upon the whole its own partial conception o the good
lie, but also or association with the Nazis. Surprisingly, the Lnglish-speaking
world including the United States in the atermath o September 11 has recently
had a renaissance o interest` in his work. Schmitt`s critique captures better than
contemporary critics the problematic nature o liberalism at least in some aspects,
and I would like to examine Schmitt`s well known insights and highlight some
lessons or times o crisis by oering my own response to what I regard to be
Schmitt`s points.
According to Schmitt, the stupidity o parliaments proides the occasions or
executies to exercise the soereign power that always resides in the executie.
Schmitt`s antiliberalism seems to get more releant in times o crisis as relected in
the post-911 attention o constitutional theorists. As Sanord Leinson points out,
ormer US President Bush`s response to the September 11 attaches presents
constitutional theorists with the kind o problem Schmitt seems to hae addressed.
In this sense, we can take note o lessons rom Schmitt.
Liberal Democracy in State o Lmergency
5
III6 S'+*(tt7s D(a)nos(s of L(be&al De*o'&a'.7s Wea:ness
Schmitt`s authoritarian theory o law and politics proides that Constitutional
democracy is sel-contradictory and illusionary, which is reealed in case o crisis.
According to Schmitt, to oercome crisis the constitutional principle should gie
way to unconstrained political soereignty so that the soereign can ollow the
collectie will o the people without any constraint. lurther, Schmitt criticizes
liberalism asserting that the liberalism is illusionary because neutrality, the rule o
law, and constitutional democracy rest on contradictory premises. le also argues
that the liberalism is hypocritical because liberals hide their particular purposes and
selish economic goals by inoking non-existent uniersality. 1o Schmitt,
constitutional democracy is a mere amalgam o two contradictory components,
namely, the liberal component o constitutionalism and the political component o
democracy. \hile Schmitt regards a genuine democracy as the soereign authority
o the collectie unity o the people, constitutionalism does not concretize any
political substance. 1he purported neutrality o the latter, in Schmitt`s iew, is used
as an instrument o the liberal bourgeoisie to deend its priate and economic
interests. Schmitt states that the indiidualism inherent in indiidual human rights
can be reduced to the selish goals o the bourgeois while the separation o powers
preented each constitutional institution rom exercising soereign authority in
Schmittian sense. As such, in constitutional democracy, a pure democracy where
people express and accomplish their collectie will cannot exist. loweer, it is
both practically and conceptually possible to establish a goernment with two
components together. In particular, liberalism is not deoid o political substance
in the sense that discrimination and bias, speciically in Kantian liberalism, is the
irst and oremost enemy o a liberal community where people respect each other`s
dignity and reedom on the basis o equality.
laing told this, while Schmitt raises some disturbing questions, his
proocatie thesis, I think, may help us to recognize a disturbing aspect o
liberalism as eidenced in the current global inancial crisis. 1he irst step to
scrutinize Schmitt`s critiques is to grasp what he means by the political.` Contrary
to the liberals` emphasis on uniersality o all human beings, Schmitt argues that
in the domain o the political, people do not ace each other as abstraction but as
politically interested and politically determined persons, as citizens, goernors or
goerned, politically allied or opponents.` lor example, een i the modern
democracy established uniersal human equality, it does not necessarily mean the
disappearance o substantie inequalities, because inequality would likely shit in
the economic sphere so that this area would take on a new, disproportionately
decisie importance.` Schmitt warned that under the conditions o supericial
political equality, another sphere in which substantial inequalities preail will
dominate politics.` I think this proides a signiicant insight or understanding the
current dominance o economics oer politics.`
long Sik Cho
6
Schmitt`s relection sends a wake-up call or those who beliee in rational
indiidualism. Rational indiidualism puts too much emphasis upon rationality and
ignores that it is through political discourse in public sphere that democratic
citizens rather than rational consumers can introduce questions o alues into
deliberation. A alue is constituted through political action, an action through
which political agents create a common alue by committing themseles to that
alue. \ithout a plurality o competing orces, politics is displaced by mere trade
between selish interest groups or rational calculation by technocrats. 1he current
global inancial crisis is a dramatic example o the dangerous consequences that
too much emphasis on rationality can brings up. 1he problem was not a ailure o
rational analysis but, according to President Obama`s diagnosis, was a collectie
ailure o responsibility in \ashington, on \all Street and across America.` More
likely, Schmitt would argue that the problem here is the concept o rationality
itsel. 1he myopic rationality rewarded those who try to game the system`,
instead o those who compete honestly and igorously within the system.`
I think that Schmitt successully shows the dangers that the dominance o the
rational indiidualism bring to the democracy. Liberal democracy, as a regime, is
much more than a mere orm o goernment gien that it concerns the conceptual
ordering o social relations. A deining actor o liberal democracy is pluralism,
meaning the dissolution o one and only idea o the good lie. Pluralism not only
secures indiidual equal liberty or all, but also legitimates conlict and diision.
loweer, rational indiidualism oerlooks that the essence o pluralism consists in
recognizing that there must be a wide ariety o perspecties concerning alues
and thereby sees objectiity as belonging to the things themseles. My concern is
that too much emphasis on rationality would make rationalism dominate modern
democracy. 1his may be a real threat to democracy because it may negate the
ineitable conlict o alues and aim at a uniersal rational consensus. But then, I
do not adocate an unconstrained extreme pluralism because such alue relatiism
does not recognize that certain dierences are constructed as relations o
subordination.
Is there any other way to make whole our liberal democracy project than to
resort to rationality Once the pluralism is accepted, there seem to be three options
in speciying the terms under which people with dierent conceptions o the good
can lie together in political association. lirst is to ind procedures to deal with the
dierences. loweer, the creation o a mere modus iendi that regulates the
conlict among dierent iews is not enough because it will weaken the state to
such an extent that it reduces to a reeree with a purely instrumental unction and
thus making the unity a mere conergence o interests, not a proper orm o unity
o a plural society.
1he second option would be to emphasize priority o the right oer the good.
As Rawls points out this is to establish political justice that all reasonable` citizens
would support despite their deep doctrinal disagreement on other matters.
loweer, Rawl`s conception o justice, similar to social contract metaphor, appeals
Liberal Democracy in State o Lmergency
to an indiidual`s idea o rational adantage. In addition, as Schmitt points out, too
much emphasis on uniersal morality would place onesel in the ield o ethics
instead o the ield politics because being blind to dynamic interactions among
members, one would deny the need to constitute collectie identities.
1he third option is to shed a new light on politics. Some o liberal theories o a
well-ordered society presuppose that political actors are only drien by what they
see as their rational sel-adantage and thus the realm o politics is inally reduced
to a neutral ield o competing interest. loweer, is it possible that a rational
political consensus, a deinite solution to the issue o justice, ills a gap between
justice and political decision that will constitute concrete content o democracy
oreer In particular, the claim o neutrality does not stand in times o crisis. 1his
is because there cannot be neutrality in the political.` 1he essential part o the
concept o the political is such that people constitute their alues through political
articulation, which in turn constructs the identity o the people. Such an identity
can only exist through a ery struggle about the multiple and competing
identiications o the people. 1hus, the best way to keep liberal democracy alie
might be to get people to make alue articulations. 1he recognition o dynamic
aspect o politics, that is, ariability is the condition o existence o democratic
politics. Merely seeking a inal rational resolution o conlicts puts the democratic
project at risk. Instead, in a democratic polity, conlicts and conrontations, ar
rom being a sign o imperection, indicate that democracy is alie and inhabited
by pluralism.
IV6 S'+*(tt7s P&es'&(8t(on (n T(*es of C&(s(s as a)a(nst t+e R-le
of La/: E*e&)en'. Po/e& W(t+o-t C+e':
1he question o crisis or legal scholars is how to cope with a shock to a political
system that is so great that normal rules seem no longer applicable. Lxceptional
measures or exceptional times are usually deemed to hae the eect o
undermining both separation o powers and indiidual rights. loweer, Schmitt
claims that the ability o a ruler to suspend the rule o law is the ultimate act o
soereignty. 1o Schmitt, Soereign is he who decides on the state o exception.` I
will call this statement as Schmitt`s soereign thesis. In state o exception where
the entire legal order is at stake, a soereign decision is not constrained by any
normatie principles. 1he extraordinary powers aorded to the President in times
o crisis, coupled with the power to recognize such a crisis essentially by executie
iat, has led to a shocking prolieration o executie orders declaring a state o
emergency.` lor example, in \eimar Germany, executies gained great powers
through declarations o states o emergency which then was not conined to the
area which had originally triggered its application. In Schmitt`s idea, the soereign
may set aside constitutional rules to act directly to cope with the threat based on its
long Sik Cho
8
ultimate responsibility or the continuing existence o the state. As a result, the
\eimar Constitution had broken under emergency goernment.
Is there a way or Schmitt`s soereign thesis to reconcile with the concept o
the rule o law A ew options are possible. lirstly, one can claim that the
soereign thesis has its own immanent restraint because soereign will not keep its
power unless it successully secures homogeneity in substance with the demo.
loweer, there is no controlling mechanism against the soereign`s arbitrary
exercise o power in Schmitt`s theory because een though a soereign is
dethroned, another soereign o the same nature will accede to the throne.
1he second option can be ound in that while under some o the
contemporary constitutional theories the Constitution entitles the President to
disregard dierent constitutional construction suggested by the courts, the
President`s arbitrary exercise o power is subject to restriction because Congress
could impeach him. loweer, I think this is too optimistic in the sense that there
is no conceptual resource with which to challenge a decision by the President
despite expected impeachment. As a matter o concept, Schmitt`s soereign thesis
contradicts with the rule o law because the true Schmitt`s position would occur
when the President takes actions that he beliees to be essential to the state`s
surial when the Constitution properly construed does not allow it.
1hirdly, the soereign thesis itsel can be construed constitutional. loweer, it
is nae to regard the Constitution as speaking clearly to the resolution. \hile the
rule o law suggests the primacy o abstract normatie principles oer concrete
political decisions, Schmitt states that normatie principles cannot hae an eect
on human society unless they are interpreted by particular agents and applied to
particular circumstances. lurther, one may think to substitute courts as soereign.
loweer, this would not guarantee the rule o law at work because judges also may
make arbitrary decisions. In addition, the state o emergency cannot be deined in
adance and thereore the unanticipated nature o the emergency calls or the
Schmittian soereign. Gien the undeinability o emergency all the law can do is
to designate who has the power to act to address the emergency.
In sum, there is no way to conceptually reconcile between the soereign thesis
and the rule o law. 1hereore, I conclude that to resole the dilemma, one must
ind a practical way to tame the Schmittian soereign. lence, the question now is
how to surie een exceptional situations without abandoning its liberal
constitution.
lirst, we can consider to rely on high politics.` According to Legal
Realist,Critical Legal Studies, the interpretation o legal terms is determined by
politics not only in states o exception but also in the normal state o aairs. As
long as we are able to deelop politics that is high`, meaning politics inoling
undamental political ision about the proper way to organize and steer society, the
impossibility o constitutionalism should not trouble us.
Secondly, the precedents set through such high politics can inally build a
normatie structure which can ultimately constrain the soereign oer time. I
Liberal Democracy in State o Lmergency
9
already noted in the aboe that the purported legal control will be ineectie
because, een i emergency is constitutionalized, the interpretation gien to such
open-ended terms will be determined by politics. loweer, as cases are
accumulated oer time, the web o cases will ix the contour to such a large extent
that the declaration o an emergency is regulated in a legally meaningul way as
well. 1hereore, one cannot oeremphasize the need to retain the possibility to
subject the soereign`s decision to ex post acto reiew. I no judicial reiew is
aailable, then legal exceptionalism will arise een when law is most determinate.
One might be concerned that normalizing emergencies such as in the second
option may result in permanent emergency. loweer, it seems to me better to
normalize emergencies rather than to keep them outside normal goernance. In
short, bending o the constitutional ramework would be preerred oer its
breaking.
I would like to inish this chapter with a Korean case. lormer President Kim
\oung-sam directed his ruling party to enact a law to prosecute ormer presidents
Chun Doo-hwan and Roh 1ae-woo or their respectie roles in 199 coup d`etat
and 1980 bloody crackdown on Korean citizens in Kwangju. 1he legislation raised
issues about its retroactiity and whether it is a iolation o the Korean
Constitution`s prohibition against ex post acto laws because the law authorizes
prosecution o a past act or which the statute o limitation has already run. 1he
Constitutional Court rendered its decision regarding the oregoing in 1996 and the
Act was not struck down. My point here is not about the constitutionality o the
Act, but about the act that both the coup d`etat and the enactment o the law were
reiewed in a judicial manner by the Court.
V6 Con'l-5(n) Re*a&:s
Liberal democracy has its own deiciencies. In emergency situations someone, the
president, the court or whoeer the case may be, has to take decisie action to
cope with the emergency. As discussed aboe, there is inherent risk that any such
exercise o soereign power may lead to its abuse. loweer, it is impossible to put
in place a rule to address such abuse in adance because o the unpredictability o
emergencies. lor example, it is impossible or one to address all the possible
eentualities in a gien contract because o the diiculty in predicting the diering
possibilities. 1hereore, to a certain extent, one has to rely on both parties` good
aith and air dealing to resole situations not speciically addressed in contract.
1his example reminds me o \ittgenstein`s insightul statement: no course o
action could be determined by a rule, because eery course o action can be made
out to accord with the rule.` ,LUD\IG \I11GLNS1LIN, PlILOSOPlICAL
INVLS1IGA1IONS 69 ,3d ed., 2001,,. I one would accept \ittgenstein`s iew, one
would ind that indeterminacy can be seen as inherent in the concept o rule o law
itsel. ,lor example, \asuo lasebe, (he Ru-e of #aw and 1ts 2redica'ent, 1 RA1IO
long Sik Cho
10
JURIS 489 ,2004,. \ittgenstein, howeer, proides an exit out o this paradox:
there is a way o grasping a rule which is not an interpretation.` ,\I11GLNS1LIN,
supra at 84,. Quite oten, indeed, one can grasp the meaning o a rule right away
without recourse to any interpretation. In this case, the meaning o a rule is
determined by conentions widely established in society. In short, \ittgenstein`s
point is that interpretation is required only when established linguistic rules and
conentions underdetermine the meaning o an expression ,lor example, ANDRLI
MARMOR, IN1LRPRL1A1ION AND LLGAL 1lLOR\, ch. 2 Meaning and
Interpretation` ,lart Publishing 2d ed. 2005,,. I think that \ittgenstein`s iew
implicates a lot or the question this essay seeks to answer. 1he key to resoling
the problem o indeterminacy in rule o law in states o emergency would be to
build up conentions, whether legislatie or judicial, necessary to control
soereign`s exercise o emergency power.
On the other hand, i one would take a unctionalist deinition o the rule o
law, one would draw the same conclusion. lor example, lriedrich A. layek
understands the rule o law such that it make|s[ it possible to oresee with air
certainty how the authority will use its coercie powers in gien circumstances, and
to plan one`s indiidual aairs on the basis o this knowledge.` ,lRILDRICl A.
lA\LK, 1lL ROAD 1O SLRlDOM 54 ,1944,,. I the goal is to reach the state o
layekian legal system, I would say that politics as constrained by appropriate
political practices could accomplish the goal as well.
Refe&en'es
Balkin, J. M., & Leinson S. ,2001,. Understanding the constitutional reolution.
3irginia" #aw Re/iew, 45, 1045-1108.
Beitler, M. A. ,2008,. Rational indiidualism: A moral argument or limited
goernment and capitalism. Practitioner Press International.
Bieleeldt, l. ,199,. Carl Schmitt`s critique o liberalism: Systematic
reconstruction and countercriticism. Canadian ourna- of #aw and urisprudence,
67, 65-5.
Blaisdell . lome Bldg, 249 N.\. 334 ,Minn. 1933,.
Bush . Gore, 531 U.S. 98 ,2000,.
Caldwell, P. C. ,199,. Popular soereignty and the crisis o German Constitutional
Law: 1he theory & practice o \eimar constitutionalism. Durham, NC: Duke
Uniersity Press.
Canadian Journal o Law and Jurisprudence, 10 ,199,.
Cho, J.-l. ,2009, July 24,. Parties blame each other or deadlock. Korea Hera-d"
Retrieed rom http:,,www.koreaherald.co.kr,archies,result_contents.asp
Liberal Democracy in State o Lmergency
11
Cho, J.-l. ,2009, July 25,. DP leader quits parliamentary seat. Korea Hera-d"
Retrieed rom http:,,www.koreaherald.co.kr,archies,result_contents.asp
1958 CONS1I1U1ION, art. 16,1, ,lr.,.
Constitutional Court Judgment o leb. 29, 1996, 96 lun-ma186.
Constitutional Court Judgment o Jan. 18, 2001, 2000 lun-ma .
Constitutional Court Judgment o No. 2, 2003, 2001 lun-ba 35.
Constitution o the Republic o Korea, arts. 6 ,1,, 6,3,-,4,, 113,1,.
Dyzenhaus, D. ,199,. Introduction: Carl Schmitt`s challenge to liberalism.
Canadian ourna- of #aw and urisprudence, 67, 3-4.
Llster, J. ,2003,. Don`t burn your bridge beore you come to it: Some ambiguities
and complexities o precommitment. (e+as #aw Re/iew, 46, 151-18.
Llster, J. ,199,. .-0sses and the Siren" New \ork, N\: Press Syndicate o the
Uniersity o Cambridge.
E+ parte Merryman, 1 l. Cas. 144 ,C.C.D. Md. 1861,.
lasebe, \. ,2004,. 1he rule o law and its predicament. Ratio uris, 65, 489-500.
layek, l. A. ,1944,. (he road to serfdo'. New \ork, N\: Routledge.
lome Building . Blaisdlell, 290 U.S. 398 ,1934,.
lughes, C. L. ,190, May 3,. Speech in Llmira, N.\. In l. R. Shapiro ,Ld.,, (he
8+ford dictionar0 of 9'erican -ega- :uotations ,p. 216,. New \ork, N\: Oxord
Uniersity Press.
lughes, C. L. ,1928,. (he Supre'e Court of the .nited States" New \ork, N\:
Columbia Uniersity Press.
Kennedy, L. ,2004,. Constitutiona- fai-ure; Sch'itt in Wei'ar" Durham, N\: Duke
Uniersity Press.
Korea lerald ,2008, October 2,. Unrealistic Budget. Korea Hera-d" Retrieed rom
http:,,www.koreaherald.co.kr,archies,result_contents.asp
Korea lerald ,2008, October 20,. Putting end to panic. Korea Hera-d" Retrieed
rom http:,,www.koreaherald.co.kr,NL\KlSI1L,data,html_
dir,2008,10,20,200810200032.asp
Korea lerald ,2008, Noember 13,. Preemptie bailout. Korea Hera-d" Retrieed
rom http:,,www.koreaherald.co.kr,NL\KlSI1L,data,html_
dir,2008,11,13,200811130056.asp
Leinson, S. ,2006,. Constitutional norms in a state o permanent emergency.
Georgia #aw Re/iew, <7, 699-51.
long Sik Cho
12
Marmor, A. ,2005,. 1nterpretation and -ega- theor0. Portland, OR: lart.
McCormick, J. P. ,2000,. Schmittian positions on law and politics: CLS and
Derrida. Cardo=o #aw Re/iew, >6, 1693-122.
McCulloch . Maryland, 1 U.S. 316 ,1819,.
McGarity, 1. O. ,1998,. A cost-beneit state" 9d'inistrati/e #aw Re/iew, 50, -9.
Moue, C. ,1995,. Democracy and pluralism: A critique o the rationalist
approach. Cardo=o #aw Re/iew, 6?, 1533-1545.
Moue, C. ,199,. Carl Schmitt and the paradox o liberal democracy. Canadian
ourna- of #aw and urisprudence, 67, 21-33.
Paulson, M. S. ,2004,. 1he constitution o necessity. ,otre Da'e #aw Re/iew, 5@,
125-129.
Rawls, J. ,1993,. 2o-itica- -iAera-is'" New \ork, N\: Columbia Uniersity Press.
Rehnquist, \. l. ,1998,. 9-- the -aws Aut one; Ci/i- -iAerties in warti'e. New \ork, N\:
Vintage Books.
Rossiter, C. L. ,1948,. Constitutional dictatorship: Crisis goernment in the
modern democracies. Princeton, NJ: Princeton Uniersity Press.
Scheppele, K. L. ,2003,. Law in time o emergency: States o exception and
temptations o 9,11. .ni/ersit0 of 2enns0-/ania ourna- of Constitutiona- #aw, ?,
1001-1083.
Scheppele, K. L. ,2006,. Small emergencies. Georgia #aw Re/iew, <7, 835-862.
Scheuerman, \. ,1999,. Car- Sch'itt; (he end of -aw" Lanham, MD: Rowman &
Little.
Schmitt, C. ,1928,. 3erfassungs-ehre" Berlin, German: Duncker und lumblot.
Schmitt, C. ,1930,. Staatsethik und pluralistischer Staat" KantBStudien, CD, 28-118.
Schmitt, C. ,196,. (he concept of the po-itica- ,G. Schwab, 1ran.,. Chicago, IL: 1he
Uniersity o Chicago Press.
Schmitt, C. ,1985,. (he crisis of par-ia'entar0 de'ocrac0 ,Mass. Inst. 1ech., 1rans.,.
Cambridge, MA: MI1 Press.
Schmitt, C. ,1985,. 2o-itica- theo-og0; Four chapters on the concept of so/ereignt0 ,G.
Schwab, 1rans.,. Cambridge, MA: MI1 Press.
Sunstein, C. R. ,1996,. Congress, constitutional moments, and the cost-beneit
state. Stanford #aw Re/iew, 48, 24-309.
1homas, G. ,2005, lebruary 6,. Ronald Reagan and the constitution. Retrieed
romhttp:,,claremont.org,writings,05020thomas.html.
Liberal Democracy in State o Lmergency
13
1ushnet, M. ,2005,. Our perect constitution` reisited. In P. Berkowitz ,Ld.,,
(erroris'E the -aws of warE and the constitution; DeAating the ene'0 co'Aatant cases ,pp.
131-158,. Stanord, CA: looer Institution Press.
1ushnet, M. ,2006,. Meditations on Carl Schmitt. Georgia #aw Re/iew, <7E 8-888.
U.S. CONS1I1U1ION, art. I, 9, cl. 2.
\aters, D. M. ,1996,. Korean constitutionalism and the Special Act` to prosecute
ormer presidents Chun Doo-lwan and Roh 1ae-\oo. Co-u'Aia ourna- of
9sian #aw, 67, 461-485.
\iegandt, M. l. ,1995,. 1he alleged unaccountability o the academic: A
biographical sketch o Carl Schmitt. Cardo=o #aw Re/iew, 6?, 1598-1598.
\illiamson, L. ,2009, September 15,. Obama urges bankers to back inancial
oerhaul. Wa-- Street ourna-, A4"
\ittgenstein, L. ,2001,. 2hi-osophica- in/estigations" Oxord, Lngland: Blackwell.
\oungstown Sheet . Sawyer ,Stee- Seisure,, 343 U.S. 59 ,1952,
R(s: Mana)e*ent b. t+e o1e&n*ent an5 t+e
Const(t-t(on
Werner Heun
I6 Int&o5-'t(on: Se'-&(t. ; Dan)e& ; R(s:
At irst sight risk management by the goernment is an unamiliar concept in
German constitutional law. Much more common are the concepts o security and
its opposition: danger. 1he three notions security, danger and risk are closely
interrelated and risk management has been a goernmental unction or a long
time, although it has not been suiciently conceptualized as such. Speaking about
these dierent but interrelated concepts in German constitutional theory and law
in the Lnglish language has to take into account the slightly dierent meanings and
associations o the Lnglish and German expressions. At least in legal language or
example the German word Geahr` means imminent danger in Lnglish.
Beore turning to the subject o risk management itsel it seems useul to
clariy the three notions and their relation to each other in a short historical
oeriew.
1. 1he oldest concept in political and constitutional theory is security.
1
1he
Roman securitas, where all modern Luropean notions are deried rom, originally
means plainly the absence o grie or trouble. It soon gained a political sense as an
1
listorical oeriews Werner Con=e, Sicherheit, Schutz, in: Geschichtliche Grundbegrie, ol. 5,
1984, p. 831-862, 9ndrea Schri''BHeins, Gewissheit und Sicherheit. Geschichte und
Bedeutungswandel der Begrie certitudo und securitas, Archi r Begrisgeschichte 34 ,1991,, p.
123-213, 35 ,1992,, p. 115-213, !ichae- !akropou-os, listorisches \orterbuch der Philosophie, ol. 9,
1995, col. 45-50.
\erner leun
16
expression o the Pax Romana but meaning only a subjectie eeling. During the
Middle Ages securitas became an objectie status and then a positie political
concept. It is howeer the rise o the modern state that eleates securitas publica to
the oremost goal o the state.
2
In addition this general purpose o goernment is
diided into two dierent aspects: internal and external security which are guided
by dierent rules and maxims.
3
1homas lobbes integrates saety into a coherent
political theory by deining it as not mere surial in any condition but a happy
lie so ar as that is possible`.
4
John Locke qualiies security as central element o
the integral goal o peace, saety and publick good o the people`
5
which are the
concretization o lie, liberty and property as the end o goernment.
6
In the 18
th
Century public saety was extended to a comprehensie concept that encompassed
the happiness o the people.
See e.g. Christian Wo-ff, Vernntige Gedancken on dem Gesellschatlichen Leben der Menschen
und insonderheit dem gemeinen \esen ,4. ed. 136,, II, ch. 1, 222s., in: C. \ol, Gesammelte
\erke 1. Abt. ol. 5, p. 165s.
8
1''anue- Kant, Uber den Gemeinspruch: Das mag in der 1heorie richtig sein, taugt aber nicht r
die Praxis ,193,, A 232-20, in: \erke ,ed. \. \eischedel,, ol. 6, p. 12-12 ,143-164,, Wi-he-' /on
Hu'Ao-dt, Ideen zu einem Versuch, die Grenzen der \irksamkeit des Staates zu bestimmen ,192,,
in: \erke ,ed. A. llitner,K. Giel,. ol. 1, 1960, p. 56-233.
9
See Fran=BFa/er Kauf'ann, Sicherheit als soziologisches und sozialpolitisches Problem, 2. ed. 193,
p. 91ss, Gerhard 9" Ritter, Der Sozialstaat, 2. ed. 1991, or the legal concept o the social state in
Germany see Hans Gacher, Das soziale Staatsziel, in: landbuch des Staatsrechts, ol. II, 3. ed. 2004,
28, p. 659-84.
10
Frank-in D" Roose/e-t, Speech 30. Sept. 1934, 1he Public Papers and Addresses o lranklin D.
Rooseelt ,ed. S.I. Rosenman,, ol. 3, 1938, p. 413-425 ,421,.
11
Seminal decision: Preu|isches Obererwaltungsgericht 10. June 1880, in: Preu|. Verwaltungsblatt
189,80, p. 401ss.
12
See e.g. 2 I a Nds. SOG, Fran=B#udwig Kne'e0er, Polizei- und Ordnungsrecht, 11. ed. 200, p. 62ss.
Risk Management by the Goernment and the Constitution
1
public utilities. As a consequence any iolation o a law that protects public - not
only priate - interests is qualiied as an injury o public saety`.
13
1he police and
the general administration are authorized to take the necessary measures i the
danger is imminent. Imminence is deined by suicient probability according to
general experience o lie, so that the injury is considered almost certain rom the
perspectie o the acting oicer.
14
1he assumed certainty o the realization o the
danger is the crucial dierence to risk. 1he preention o dangers by the
goernment has thereore to be distinguished rom risk management.
3. 1he concept o risk is only a recent deelopment in German jurisprudence.
Since especially nuclear plants may lead to catastrophic damages or public saety,
although only with a ery low probability, the traditional concept o the preention
o imminent danger according to the rules o police law was considered insuicient
and thereore supplemented by a new concept o risk preention. In this context
risk is legally deined as a product o the extent o the expected damage and the
probability o its occurrence. 1he deining dierence to imminent danger is -
solely - the by ar lower probability.
15
1his legal concept is more or less restricted
to the law o technical saety. Len the notion o a risk society` pertains mainly to
these technical risks.
16
Its main applications are the law o nuclear plants as well as
genetic technology and now more recently nanotechnology.
1
1he concept is the
basis or legal preention measures which should orestall the occurrence o
imminent dangers in adance. 1he precautionary principle authorizes goernment
to take such preentie measures.
18
Risk and its management is a problem o a wider scope that exceeds by ar the
narrow limits o the so ar described concept o technical risks.
19
A much broader
perspectie is needed since technical risk is only a ery partial aspect o risk. Risk
in this broad sense has two elements.
20
It presupposes irstly uncertainty about the
13
Kne'e0er, Ordnungsrecht ,ln. 12,, p. 2s.
14
%" DrewsHG" WackeHK" 3oge-HW" !artens, Geahrenabwehr, 9. ed. 1986, p. 224, R" 2oscher,
Geahrenabwehr, 1999, p. 114-128.
15
Original deinition: BMl1 ,ed.,, Deutsche Risikostudie Kernkratwerke 199, lauptband, p. 10-
16, &rn 1psen, Die Bewltigung der wissenschatlichen und technischen Lntwicklungen durch das
Verwaltungsrecht, VVDStRL 48 ,1990, p. 1-206. ,186s.,, 9ndreas Reich, Geahr - Risiko -
Restrisiko, 1989, p. 85-132, .do di FaAio, Risikoentscheidungen im Rechtssaat, 1994, S. 3s., #i/
aecke-, Geahrenabwehrrecht und Risikodogmatik, 2010, p. 49-16, critical 9rno Scher=Aerg, Risiko als
Rechtsproblem, Verwaltungsarchi 84 ,1993,, p. 484-513, ,49ss,.
16
.-rich %eck, Risikogesellschat, 1986, p. 25-112, see also Gotthard %ech'ann, Risiko als
Schlsselkategorie der Gesellschatstheorie, KritV 1991, p. 212-240, also in: idem ,ed.,, Risiko und
Gesellschat, 1993, p. 23-26.
1
C. aecke-, Geahrenabwehrrecht ,ln. 15,, p. 16-48.
18
lor Germany, see .-rich K" 2reuI, Risikoorsorge als Staatsaugabe, in: D. Grimm ,ed.,,
Staatsaugaben, 1993, p. 523-551, Wo-fgang K&ck, Risikoorsorge als Staatsaugabe, AoR 121 ,1996,, p.
1-23, generally on a comparatie basis Cass R" Sunstein, Laws o lear. Beyond the Precautionary
Principle, 2005, p. 15ss.
19
Risk management in Germany is understood only in this narrow sense, see e.g. EiAe Riede- ,ed.,,
Risikomanagement im oentlichen Recht, 199.
20
See generally ,icho-as Rescher, Risk. A Philosophical Introduction to the 1heory o Risk Laluation
and Management, 1983, p. 5ss, ohn 9da's, Risk, 1995, 8tthein Ra''stedt, Risiko, listorisches
\orterbuch der Philosophie ol. 8, 1992, col. 1045-1050, dierent approach by Herfried !nk-er,
\erner leun
18
uture and secondly the possibility o harm and loss on one side as well as mostly -
i not always - the possibility o gain or other positie deelopments on the other
side. As a general obseration bad contingencies cannot exist in the absence o
aourable ones.
21
Natural disasters seem prima acie to present a counterexample
but only i one neglects the act that people went the risk o being hit by such a
disaster by settling on the coast ,in case o loods,, in an area that is endangered by
earth quakes or liing near a olcano.
1he ormation o such a broad concept o risk can be traced back to the Italian
Renaissance when in the 15
th
century sea insurances were established.
22
Origins o
insurances can een be ound in the Ancient Near Last, Greece and Rome
23
and
certain orms o trading in prehistoric societies may be conceptualized as early
insurance methods.
24
1he originality o the Renaissance concept o risk is the speciic combination
o a contingent uture with rationality. 1he deining moment is that risk can be
calculated. 1he basis o risk calculation was the discoery o mathematical
probabilities. 1he irst systematic studies were done by Girolamo Cardano in the
16
th
century, who ound out the exact mathematical probability o rolling a
particular sum with two dice.
25
1his irst approach was urther deeloped to the
concept o expected alue, also called mathematical expectation, oer the next
hundred years namely by Christiaan luygens, who determined the expected
outcome o a game that was the weighted aerage o all possible outcomes.
26
In the 18
th
century another mathematician o the Bernoulli amily came to the
conclusion that the price one was willing to pay in the marketplace was not the
expected alue but rather the expected utility and that indiiduals derie a
Strategien der Sicherung: \elten der Sicherheit und Kulturen des Risikos. 1heoretische Perspektien,
in: idem ,ed,, Sicherheit und Risiko, 2010, p. 11-33.
21
Da/id 9" !oss, \hen All Llse lails. Goernment as the Ultimate Risk Manager, 2002, p. 22.
22
See 2ana0otis 2erdikas, Die Lntstehung der Versicherung im Mittelalter, Zeitschrit r die gesamte
Versicherungswissenschat 55 ,1966,, p. 425-509, Karin ,eh-senB/on Str0k, Die enezianische
Seeersicherung im 15. Jahrhundert, 1986, Kar- H" 3an DJE-den, 1he Deelopment o the Insurance
Concept and Insurance Law in the Middle Ages, in: l.J. Johnson ,ed.,, 1he Medieal 1radition o
Natural Law, 198, p. 191-199 ,196s.,, see also Doug-ass C" ,orth, Institutions, Journal o Lconomic
Perpecties 5 ,1991,, p. 9-112 ,106s.,.
23
C"F" (renner0, 1he Origin and Larly listory o Insurance, 1926, p. 4ss., on the medieal
understanding within the ramework o the teachings on usury see %irger 2" 2riddat, Zuall, Schicksal,
Irrtum, 1993, p. 25ss.
24
See Richard 9" 2osner, A 1heory o Primitie Society with special Reerence to Law, Journal o Law
and Lconomics 23 ,1980,, p. 1-53.
25
See 2eter #" %ernstein, Against the Gods: 1he Remarkable Story o Risk, 1996, p. 4-53, #"E"
!aistro/, Probability 1heory, A listorical Sketch, 194, p. 18-25.
26
See 1an Hacking, 1he Lmergence o Probability: A philosophical Study o Larly Ideas about
Probability, Induction and Statistical Inerence, 195, p. 92-101, who considers the time o around
1660 as the birthtime o probability` ,p. 11,, see also !aistro/, 1heory ,ln. 25,, p. 48-55, or the
complicated and intertwined relationship between mathematical probability, statistical data and
insurance see also #orraine " Daston, 1he Domestication o Risk: Mathematical Probability and
Insurance 1650-1830, in: L. Krger et al. ,eds.,, 1he Probabilistic Reolution, Vol. 1: Ideas in listory,
198, p. 23-260.
Risk Management by the Goernment and the Constitution
19
progressiely smaller amount o utility rom each additional currency unit.
2
1his
diminishing marginal utility o wealth leads to the psychological and economical
phenomenon o risk aersion.
28
1hereore, indiiduals will place a higher alue on
losses than on equally sized gains. 1hat aors insurances in general, since people
will pay more than the expected alue o hazard.
29
1his attitude o indiiduals to risk is also strongly characterized by the act that
risk acceptance is generally higher i it is taken oluntarily than i the risk is
,inoluntarily, imposed by a third party.
30
loweer, this distinction should not be
made the basis o a categorical dierence between danger and risk, as has been
proposed by Niklas Luhmann, who deines danger as imposed and risk as based
on human decision.
31
II6 Met+o5s of R(s: Mana)e*ent
Since the world is ull o risks man has always tried to deal with risk. Lssentially
there are three dierent methods to modiy and moderate risks.
32
1. 1he most common and at irst preerable method is risk reduction. People
try to minimize risks by eliminating or substantially reducing the expected risk.
1his perspectie dominates especially public law. 1he preention o imminent
danger is the model or risk reduction. Saety regulations are a prime example or
this strategy. Criminal Law is probably the oldest method o risk reduction by
regulation.
33
Quite oten howeer, risks and losses are unaoidable. In this case,
risk management by risk reduction ails to a great extent. Still, there are other
methods which are oerlooked quite oten.
2. It might be easible in many cases to reallocate risks. 1here are two methods
o risk reallocation which supplement each other. It is possible to simply shit risks
or the risk can be spread.
34
A classical example or shiting risks are liability rules.
2
Da/id %ernou--i, Specimen theoriae noae de mensura sortis, in: Commentarii academiae scientiarum
imperialis Petropolitanae, 6 ,138,, p. 15-192, Lnglish translation, Lconometrica 22 ,1954,, 23-36,
or the modern ersion o expected utility theory in economics ounded by ohn /on ,eu'annH8skar
!orgenstern, 1heory o Games and Lconomic Behaior ,1944,, 3. ed. 1953, see !i-ton
Fried'anH#eonard " Sa/age, 1he Lxpected Utility lypothesis and the Measurability o Utility, Journal
o Political Lconomy 60 ,1952,, p. 463-44, but see also already the classical exposition by 9-fred
!arsha--, Principles o Lconomics, 8. ed. 1920 ,reset 1949,, p. 460s.
28
See e.g. !i-ton Fried'anH #eonard " Sa/age, 1he Utility Analysis o Choices Inoling Risk, Journal
o Political Lconomy 56 ,1948,, 29-304, Kenneth " 9rrow, 1he 1heory o Risk Aersion ,1965,, in:
idem, Lssays in the 1heory o Risk-Bearing, 191, p. 90-120, critical !atthew RaAinHRichard H" (ha-er,
Anomalies. Risk Aersion, Journal o Lconomic Perspecties 15 ,2001,, p. 219-232.
29
See below ln. 53.
30
Seminal article: Chaunce0 Starr, Social Beneit ersus 1echnological Risk, Science 165 ,1969,, p.
1232ss.
31
,ik-as #uh'ann, Soziologie des Risikos, 1991, p. 30s.
32
See or this dierentiation !oss, All ,ln. 21,, p. 1ss.
33
See 2at 8J!a--e0, 1he Goernment o Risks, in: 1he Blackwell Companion to Law and Society,
200, p. 292-308 ,295-298,, Henning Sch'idtBSe'isch, Kriminalitt als Risiko. Schadenmanagement
zwischen Strarecht und Versicherung, 2002, p. 19ss, 109ss.
34
1erminology o !oss, All ,ln. 21,, p. 1ss.
\erner leun
20
lor instance the liability may be shited rom seller to buyer.
35
1his can be
determined by contract between priate market participants or by law enacted by
the goernment. 1he underlying purpose o such a regulation might be moral
arguments o responsibility as well as ultimately to induce the more powerul to
reduce the risk. Another method o shiting risks that has gained prominence in
the last inancial market crisis are utures and deriaties. 1hey shit and diersiy
risk in time and to less risk aerse inestors.
36
3. linally it is possible to spread risks. 1his is especially easible i risks are at
least statistically unaoidable. In this case the risk is usually well known and can be
diersiied by all kinds o insurances as well as by portolio diersiication.
3
Stocks
are another orm o spreading risks and proits. 1he deining element is that this
method reduces indiidual risk but not aggregate or total risk.
38
1he strategy o
spreading risk between dierent persons is the principle o all insurances since the
already mentioned Renaissance sea insurances. 1oday insurances are a uniersal
and common orm o risk management that is amiliar to eeryone rom car and
ire insurances to health insurances. Mostly, this orm o risk-spreading is resered
to the market and its participants who oer all kinds o insurances, een against an
inasion rom Mars. But the goernment also oten proides or insurances
starting with the social insurance system by Otto on Bismarck in the 1880s
39
or
the social security regulations in the New Deal in the United States.
40
III6 P&oble*s of R(s: Mana)e*ent b. t+e P&(1ate Se'to&
In a ree democratic state as well as in a market economy, risk management alls
into the responsibility o the indiidual and the market. 1his is true or all three
mentioned methods equally. Leryone by himsel tries to reduce risks as ar as
possible. One takes care o one`s own health, is interested in sae driing and
aoids inancial risks i possible and easible. Shiting risks is also an essential part
o priate contracts and insurances are mostly oered by the market.
41
But there
are limits or priate risk management due to seeral problems that are speciically
risk related.
35
See also Ste/en Sha/e--, Liability or larm ersus Regulation o Saety, Journal o Legal Studies 13
,1984,, p. 35-34.
36
See 2eter H" Huang, A Normatie Analysis o New linancially Lngineered Deriaties, Southern
Caliornia Law Reiew 3 ,2000,, p. 41-521.
3
1he classical study is Harr0 !" !arko/it=, Portolio Selection: Licient Diersiication o
Inestments, 1959, this method can be used by each indiidual or him- or hersel, while insurances
spread risks interpersonally.
38
See !oss, All ,ln. 21,, p. 29ss.
39
As an introduction see !ichae- Sto--eis, Geschichte des Sozialrechts in Deutschland, 2003, p. 52ss.
40
See !oss, All ,ln. 21,, p. 180ss.
41
1he rationale or indiidual economic actors to sell and buy risks is not only risk diersiication but
also the act that dierent people hae dierent attitudes toward risk, some being more risk aerse
than others, other reasons are dierential risk assessment and portolio diersiication. See !oss, All
,ln. 21,, p. 34s.
Risk Management by the Goernment and the Constitution
21
1. Some risk related market ailures are well-known since the 19
th
century and
are based on the act o asymmetric inormation.
42
1he problem o aderse
selection was explicitly identiied as term and phenomenon in the ield o lie
insurances.
43
Aderse selection occurs when indiiduals know more than their
insurers about their own leel o risk. \hile a person with a terminal disease only
he himsel knows o may buy a high lie insurance, a person with good risks may
leae the insurance and sae money inesting otherwise. 1his may be countered by
health examination and screening but this can be diicult, expensie or impossible
in certain respects.
44
Len more amous in recent discussions is the problem o moral hazard in
other contexts. It has been discoered in the area o ire insurance, where insured
clients might engage in arson, raud or interested carelessness.
45
Moral hazard may
be deined by the incentie to try to increase the oerall riskiness o an actiity,
that is still controlled by someone while the burden o risks is assigned or shited
to someone else. 1his is oremost an insurance problem but concerns also any
orm o ,orced, bail-out. Although identiied already in the 1860s, its irst
ormalized and systematic treatment in economics occurred only a hundred years
later.
46
1here are also other inormation problems that are not based on
asymmetric inormation but neertheless cause market ailures. 1his is especially
the case i neither party or nobody at all can obtain suicient inormation about
the risk in question and it is not calculable in any way. 1his concerns catastrophes
and disasters which are not predictable and cause extremely high costs. In this case
no one will insure the risk in the market because the inormation does not exist or
is too expensie to acquire.
2. A relatiely new ield o research that has been neglected by economics or a
long time are so-called perception problems which undermine the economic
assumptions o rationality and consistency. 1he groundwork was laid in the early
1920s by lrank Knight who introduced the piotal distinction between risk and
uncertainty. \hile risk inoles measurable probabilities, uncertainty concerns
uncalculable and perhaps een unknown probabilities.
4
1he distinction was
considered irreleant or quite a long time by economists, since it was argued that
precise probabilities were not necessary or an expected utility approach. It was
42
See or the problem o asymmetric inormation in general George 9" 9ker-of, 1he Markets or
Lemons: Quality, Uncertainty and the Market System, Quarterly Journal o Lconomics 84 ,190,, p.
488ss.
43
!oss, All ,ln. 21,, p. 36.
44
See !ichae- Rothschi-dHoseph Stieg-it=, Lquilibrium in Competitie Insurance Markets: An Lssay on
the Lconomics o Imperect Inormation, Quarterly Journal o Lconomics 90 ,196,, p. 629-649, or
the problem o genetic testing in this context see Da/id " Christiansen, Genetic 1esting: Risk
Classiication and Aderse Selection, Journal o Insurance Regulation 15 ,1996,, p. 5-9.
45
See (o' %aker, On the Genealogy o Moral lazard, 1exas Law Reiew 5 ,1996,, p. 23-292
,248s.,, see also or een earlier obserations !oss, All ,ln. 21,, p. 38.
46
Kenneth " 9rrow, Uncertainty and the \elare Lconomics o Medical Care, American Lconomic
Reiew 53 ,1963,, p. 941-93, also in: idem, Lssays ,ln. 28,, p. 1-211.
4
Frank H" Knight, Risk, Uncertainty, and Proit ,1921,, repr. 191, p. 19ss., esp. 233, see also 19s.
\erner leun
22
assumed that it was suicient to base probabilities on subjectie estimates which
could be treated as objectie acts.
48
Subjectie expected utility theory could een
discard i people were completely unaware o objectie existing probabilities. 1his
theory was shattered though by the discoery o the Lllsberg-paradox that showed
that the actual decision een o learned economists iolated the consistency
assumption o this subjectie theory.
49
Since then all kinds o irrational behaiour
concerning perception in decision-making hae been discoered.
50
Lspecially
estimation techniques by indiiduals are biased in seeral respects. Already the
Lllsberg-paradox showed that people try to aoid ambiguous or unknown
probabilities een at the price o inconsistency. 1hey are not only risk but also
ambiguity aerse.
51
lurthermore, indiiduals use mostly heuristic techniques in order to estimate
probabilities, which produce systematic biases.
52
lour problems are especially
striking and common. lirstly as a consequence o general risk aersion people
behae dierently when conronted with the same risk: 1hey take less risks when
choices are ramed in terms o gains and more risks when choices are ramed in
terms o losses, since losses seem more harmul.
53
Secondly people tend to
oerweight the most aailable and memorable inormation regarding the releant
problem. \hile in some cases aailability is useul as a clue or requency quite
oten it leads people to rely on memorable but not representatie inormation. 1he
car accident on the road temporarily raises the subjectie probability o car
48
Fried'anHSa/age, lypothesis ,ln. 2,, p. 463-44, #eonard " Sa/age, 1he loundations o Statistics,
1954 based on Frank R" Ra'se0, 1he loundations o Mathematics, 1931, see or this approach
recently ack Hirsch-eiferHohn G" Ri-e0, 1he Analytics o Uncertainty and Inormation, 1992, p. ss.
who deny consequently any dierence between risk and uncertainty.
49
Danie- E--sAerg, Risk, Ambiguity, and the Saage Axioms, Quarterly Journal o Lconomics 5
,1961,, p. 643-669, Wi--ia' Fe--ner, Distortion o Subjectie Probabilities as a Reaction to Uncertainty,
Quarterly Journal o Lconomics 5 ,1961,, p. 60-689.
50
See or an empirical iew 2au- " H" Schoe'aker, 1he Lxpected Utility Model: Its Variants, Purpose,
Lidence and Limitations, Journal o Lconomic Literature 20 ,1982,, p. 529-563, esp. 541-552,
general critique ens %eckert, \hat is Sociological about Lconomic Sociology Uncertainty and the
Lmbeddedness o Lconomic Action, 1heory and Society 25 ,1996,, p. 802-840.
51
E--sAerg, Risk ,ln. 49,, p. 659-669.
52
Seminal article 9'os (/ersk0HDanie- Kahne'an, Judgment under Uncertainty, leuristics and Biases,
Science 185 ,194,, p. 1124-1131, good short oeriew Danie- Kahne'anH!ark W" Riepe, Aspects o
Inestor Psychology: Belies, Preerences and Biases Inestment Adisors Should Know About,
Journal o Portolio Management 24 ,1998,, 52-65, or the ollowing see the collections o essays:
Danie- Kahne'anH2au- S-o/icH9'os (/ersk0 ,eds.,, Judgment under Uncertainty: leuristics and Biases,
1982, and the sequel Danie- Kahne'anH9'os (/ersk0 ,eds.,, Choices, Values, and lrames, 2000, 2au-
S-o/ic ,ed.,, 1he Perception o Risk, 2000, (ho'as Gi-o/ichHDa-e GriffinHDanie- Kahne'an ,eds.,,
leuristics and Biases, 2002, see also the inluential concept o bounded rationality by HerAert 9"
Si'on, Models o Man. Social and Rational, 195, p. 196-201, ide', Administratie Behaior, 3. ed.
196, p. 80ss.
53
9'os (/ersk0HDanie- Kahne'an, 1he lraming o Decisions and the Psychology o Choice, Science
211 ,1981,, p. 453-458, also in: Judgment ,ln. 52, p. 3-20, on loss aersion itsel ,people alue losses
more than equal sized gains, see 9'os (/ersk0HDanie- Kahne'an, Prospect 1heory: An Analysis o
Decision under Risk, Lconometrica 4 ,199,, p. 263-291, also in: Choices ,ln. 52,, p. 1-43, and by
the same authors, Adances in Prospect 1heory, Journal o Risk and Uncertainty 5 ,1992,, p. 29-
323, also in: Choices ,ln. 52,, p. 44-65.
Risk Management by the Goernment and the Constitution
23
accidents in general.
54
1hirdly research has also obsered an oerconidence and an
optimistic bias concerning the estimation o personal risks.
55
So the ast majority
o driers beliee that they ace lower than aerage odds o getting into accidents.
56
Similar obserations hae been made or work accidents or the personal risk o
unemployment.
5
linally extreme probabilities are usually greatly misjudged. lighly
unlikely eents are either ignored or oerweighted, and the dierence between
high probability and certainty is either neglected or exaggerated.
58
Lxtremely low-
probability but high-consequences eents like natural disasters
59
are thereore
either not insured at all or heaily oerinsured. lurthermore in hindsight past
eents seem ineitable and thereore people tend to beliee that this ineitability
was apparent in oresight.
60
A priate market exchange thereore in many cases will
not be economically optimal.
61
In addition people are ocused on dierent risks,
select risks and disagree about desired prospects. 1hereore risk perception and
management is ery much inluenced by cultural attitudes and predilections. Risk
management decisions thereore oten are a political choice.
62
3. Another category o market ailures is a consequence o goernmental
reactions to certain risks and the speciic inability o priate actors to commit
deinitiely or the uture, which are thereore occasionally termed commitment
problems.
63
1he losses caused by major natural or other kinds o disasters that
aect a substantial number o citizens orce ,democratic, goernment regularly to
assist and compensate the ictims. At the same time the knowledge that
goernment will act correspondingly will discourage people rom purchasing
insurance against such risks. 1his constitutes a dilemma o goernment
responsieness`.
64
54
(/ersk0HKahne'an, Judgment ,ln. 52,, p. 112, see in general seeral essays in: Kahne'an et a-.,
Judgment ,ln. 52,, p. 23ss., Gi-o/ich et a-" leuristics ,ln. 52,, p. 19ss.
55
See the seeral articles in Kahne'an et a-" Judgment ,ln. 52,, p. 28ss., as well as the articles in:
Gi-o/ich et a-" leuristics ,ln. 52,, p. 313ss., shortly Kahne'anHRiepe, Aspects ,ln. 52, p. 53s.
56
8-a S/enson, Are \e All Less Risky and More Skillul 1han Our lellow Driers, Acta Psychologica
4 ,1981,, p. 143-148.
5
,ei- D" Weinstein, Optimistic Biases about Personal Risks, Science 246 ,1989,, p. 1232s., ide', \hy
it \on`t lappen to Me: Perception o Risk lactors and Susceptibility, lealth Psychology 3 ,1984,, p.
431-45, see also W" Kip 3iscusi, 1he Value o Risks to Lie and lealth, Journal o Lconomic
Literature 31 ,1993,, p. 1912-1946, ide', latal 1radeos, 1992, p. 34-50, 51-4.
58
Kahne'anH(/ersk0, Prospect 1heory ,ln. 53,, p. 283.
59
See 2au- S-o/icHHoward KunreutherHGi-AertH F" White, Decision Processes, Rationality and Adjustment
to Natural lazards, in: Sloic, Perception ,ln. 52,, p. 1-32, see also the our articles by 2au-
S-o/icH%aruch FischhoffHSarah #ichtenstein, ibid., p. 32-50, 104-120, 121-136, 13-153.
60
%aruch Fischhoff, lindsight - loresight: 1he Lect o Outcome Knowledge on Judgment Under
Uncertainty, Journal o Lxperimental Psychology: luman Perception and Perormance 1 ,195,, p.
288-299.
61
See generally Kenneth 9rrow, Risk Perception in Psychology and Lconomics, Lconomic Inquiry 20
,1982,, p. 1-9.
62
See !ar0 Doug-asH9aron Wi-da/sk0, Risk and Culture, 1982, who deine risk as a product o
knowledge and consent about the most desired prospects ,p. 5,.
63
See !oss, All ,ln. 21,, p. 45ss.
64
Dani RodrikHRichard Geckhauser, 1he Dilemma o Goernment Responsieness, Journal o Policy
Analysis and Management ,1988,, p. 601-620, see also Stephen Coate, Altruism, the Samaritan`s
Dilemma, and Goernment 1ranser Policy, American Lconomic Reiew 85 ,1995,, p. 46-5.
\erner leun
24
It is an implicit market ailure that indiiduals in one generation cannot trade
with those o another ,not yet born,. 1here is no binding commitment o uture
generations by current market participants.
65
1his concerns especially so-called
systematic risks that are deined by the act that they cannot be diersiied at any
moment in time. A risk that aects just about eeryone at the same time cannot be
spread at all.
66
1hereore, a massie nuclear war is not insurable in the priate
sector and neither the risk o macroeconomic booms and busts. Systematic risk
cannot be spread at the point in time it is happening but might be diersiiable
across time although not by priate market participants. 1hat is why in these cases
the goernment steps in.
Another commitment problem is created by regulation. It is the law in all
modern economies that anybody may go bankrupt and ile or protection in
bankruptcy. 1hereore, nobody can commit not to deault on its uture obligations.
In most market transactions, this problem is manageable but may be a speciic
problem or the indiidual inestment in priate pension unds since een low
probability o ailure stopped people rom joining such unds or their complete
lietime saings. It is thereore one o the essential justiications o public social
security systems.
6
1he right to deault is an additional reason or another
commitment problem that is called the inalienability o human capital. In modern
ree market economies, human capital is inalienable because indiiduals cannot
credibly commit to turn oer their uture income to others since they neither may
waie their right to go bankrupt nor sell their working power into slaery. luman
capital is thereore a non-tradeable asset and risks regarding human capital are not
diersiiable because they cannot be sold or bought. 1he diersiication o human
capital risks requires thereore goernment interention through social security
systems.
68
4. A urther source o risk management problems by the priate sector are
externalities. Lxternalities as such are not restricted to risk problems but a general
cause o market ailures.
69
1o a great extent, externalities can be also related to
speciic risks. In terms o risk, externalities may be seen as a quasi-automatic shit
o risks to the general public. In this respect pollution creates risks or
communities and the car traic by anybody heightens the risk o injury and losses
65
oseph E" Stieg-it=, On the Releance or Irreleance o Public linancial Policy: Indexation, Price
Rigidities and Optimal Monetary Policies, in: Rdiger Dornbusch,Mario lenrique Simonsen ,eds.,,
Inlation, Debt, and Indexation, 1983, p. 183-222 ,186,, see also 2"9" Dia'ond, A lramework or
Social Security Analysis, Journal o Public Lconomics 8 ,19,, p. 25-298 ,29-281,.
66
!oss, All ,ln. 21,, p. 46s., systematic risk must be dierentiated rom systemic risk where a
complete system is aected by a ailure o one single unit: like the banking system may aected by
the bankruptcy o one large bank, see !artin He--wig, Risiken im linanzsektor, Zeitschrit r
\irtschats- und Sozialwissenschaten, Beihet ,1998,, p. 123-151.
6
!oss, All ,ln. 21,, p. 4, see also Dia'ond, lramework ,ln. 65,, p. 289ss.
68
RoAert C" !erton, On the Role o Social Security as a Means or Licient Risk Sharing in an
Lconomy \here luman Capital is Not 1radeable, NBLR \orking Paper 43 ,Sept. 1981,.
69
As an introduction see classical 9rthur C" 2igou, \ealth and \elare, 1912, p. 162-165, ide', 1he
Lconomics o \elare ,1920,, 4. ed. 1932, p. 131-135, 12-212.
Risk Management by the Goernment and the Constitution
25
or other driers and pedestrians. Making car insurance mandatory means to orce
driers to assume responsibility or the risk incurred by using a car
0
which is made
transparent by the speciic orm o car insurance in Germany.
A special source o risks comes into play where indiidual behaior is to a
certain extent rational, but on the collectie leel leads to irrational results by
increasing risks and losses. 1his is especially true or economic downturns, where a
sinking demand reduces supply, which reduces demand again and so orth.
1
In
case o a inancial panic, ear o losses may become contagious and ollowing bank
runs may destroy een sound banks.
2
I nerous depositors withdraw their money
abortiely, they inlict costs on other depositors, banks and inestors and increase
the oerall leel o risk. 1his process may een result in a systemic risk or the
whole inancial system as could be obsered in the last inancial crisis.
3
1he premature and hasty withdrawal o bank deposits can be also
conceptualized as externalities imposed on the other depositors. 1he main aspect
though is the collectie mania and the circle o eedbacks that aggraates the crisis
and heightens the risks.
4
It is almost unmanageable by the priate sector itsel and
requires goernment action.
IV6 T+e Role of o1e&n*ent as Ult(*ate R(s: Mana)e&
1he role o goernment in a political system depends on the preerred economic
system. All \estern political systems hae opted essentially or a market system. In
such a system the goernment has speciic unctions in order to compensate or
market ailures.
5
1hese unctions are based on seeral speciic capabilities o
goernment, which priate market participants do not dispose o. 1he main assets
o goernment are the powers to compel by law and to enorce its decisions with
legitimate orce as well as its economic powers to tax, to print money and as their
consequence the special credit power goernments enjoy. Goernments are able to
mobilise capital to such an extent that een the most rich and powerul priate
subjects are not capable to achiee. In addition the goernment has an extensie
bureaucratic apparatus that combines specialized knowledge with a high capacity to
sole problems o any kind.
6
1hese capabilites o goernment in general are the
oundation o its role as an ultimate risk manager.
Gunnar Duttge
I6 A*b(1alen'e of !no/le5)e
Knowledge is Power`
1
- Knowledge liberates`
2
: lollowing this credo, present
day modern society still today points one on a journey towards a way out o sel-
inlicted sheepishness`
3
with incessant optimism. Nothing less shall apply to an
indiidual than applies to the enlightened` public as an indication o their
dependable progress`
4
: New discoeries, lately increasingly regarding our own
species ,only think about the research and exploration o DNA or recently o the
brain,, inentions, and new technical innoations, which make lie easier ,e.g. drugs
in the context o medicine, or broaden the natural-gien scope o action ,e.g. in-
itro-ertilization,, ollowing utopias o an unblemished` world ,especially in the
area o regeneratie medicine, and regarding relentless work towards these utopias
as a matter o course.
Correspondingly, modern society sees merely positie potential in the
persistent and lie-long strie or more inormation and the widening o one`s own
1his is a reised ersion o the paper published in the Journal Datenschut= und Datensicherheit ol. 34,
no. 1, 34-38 ,Jan. 2010,.
1
1he phrase o Bacon in his Noum Organum ,1620, is well known: Scientia et potentia humana in
idem coincidunt, quia ignoratio causae destituit eectum.
2
1his modiication o Bacons phrase is inputed to Joseph Meyer, bookseller and publisher rom
Leipzig, Krois,Mockel ,issuer,, Lrnst Cassirer. Nachgelassene Manuskripte und 1exte, ol. 9, 1995,
p. 420 Anm. 582, applicable criticism: Stein'--er, Inormationstechnologie und Gesellschat, 1993, p.
234 et seq. with annotation p. 41 ,p. 60,: lor the \est German intellectual. , it is characterising,
that he knows almost eerything, but thererom nothing is resulting or his acting.
3
Kant, Beantwortung der lrage: \as ist Auklrung, 183, in: \eischedel ,issuer,, \erke in zehn
Bnden, 5.edition. 1983, ol. 9, p. 53.
4
1o lortschritt im Recht c. '0basic pre-consideration in: Schweighoer and others ,issuer,,
Lizienz on e-Losungen in Staat und Gesellschat. Aktuelle lragen der Rechtsinormatik, 2005, p.
546 et seqq.
Gunnar Duttge
42
horizon o wisdom, which thereore shall lead one to better understanding and
right` decisions, enabling the indiidual to sel determine` their destiny.
1oday, this described worldiew sustainably molds the work o modern
medicine, which - at least in \estern Lurope and the Anglo-American cultural
enironment - has dissociated itsel rom their ormer paternal conduct and
meanwhile no longer deems the transer o responsibility to the patient as a loss
but rather and increasingly as a relie.
\ith the establishment o the concept o infor'ed consent`, today`s patient is
ipso jure regarded as a character o equal rank and jointly responsible or
therapeutic procedures. 1hereore, and or the purpose o eectual insight into
this responsibility, the patient is to be coneyed the nature, meaning, and scope`
o the imminent interention, with special consideration to the associated risks
5
.
1his is already common practice when it comes to the distribution o
medication: 1he inormation lealet included in medicine packets by the
manuacturer must inorm the consumer in a generally comprehensible` manner
and legible writing` about the subject and indication group o the drug, known
contraindications, possible precautionary measures to be taken when using it,
interactions with other drugs, possible side eects and contingent necessary
countermeasures, as well as explicitly recommend to consult a doctor or
pharmacist` , 11 I AMG, in case urther inormation is needed.
1he result o all this eort is well known: 1he medical layman rather keeps
away rom the insurmountable obstacle o comprehending the lealet`s inormation
and inds it to be an unreasonable demand to seriously analyze the unbearably ital
messages. A logical reason or this behaioral maxim lies certainly within the innate
human drie not to hae hope and optimism be taken away quite so quickly.
Optimism, at times, is o clinical releance ,Placebo eect`,
6
and generally a
actor not to be underestimated in the doctor-patient relationship, itsel rooted in
mutual trust. 1here, howeer, is also by no means unwarranted ear that one`s own
reedom o decision-making is not only strengthened but maybe paralyzed by
inormation about negatie perspecties
Inormation is rom the inormationtheorys point o iew always and necessarily perspectiistic, to
this detailed Stein'--er ,n 2,, p. 200 et seq.
8
1o the undamental diergency o reliance and amiliarity detailed #uh'ann, Vertrauen. Lin
Mechanismus der Reduktion sozialer Komplexitt, 3. edition, 1989, p. 1 et seqq.
1he Right to Ignorance in Medicine
43
1hus, waiing o inormation` and inormational escape`, as the central
hypothesis points out, may not be one-sidedly understood as a deicit but instead -
when closer examined on a realistic leel - as a principle which allows and secures
reedom in the irst place ,Simitis,
9
and thereore needs to be saed and protected.
loweer, is there actually such a Right to Ignorance`
II6 !no/n an5 -n:no/n f(el5s of a88l('at(on
In the recent past, one area-speciic ield o application, in which recognition o an
indiidual right to inormational isolation`
10
is no longer genuinely denied, has
reached the center o attention in Germany.
1he Law o Gene Diagnostics
11
, essentially inured on lebruary 1
st
2010, ulills
the declared purpose o securing that no one shall against their will be orced to
take note o their genetic dispositions` and tolerate such restriction o ree
personality deelopment`
12
. 1he person that has agreed to medical examination is
to be explicitly notiied about this in order to allow or infor'ed consent.
Additionally, the person also has to learn that they do not need to take note o
already aailable results and thereore may at any time request to hae them
destroyed.
In the context o work and insurance policies, this basic understanding orms
the undamental notion or worries regarding speciic genetic discrimination as
well as ar reaching prohibition o determination, cognizance, and exploitation o
such inormation.
Interpreting the undamental right o eeryman, which grants bio ethical sel-
ruling`
13
, proes to be considerably diicult to implement and substantiate when
bio inormational` interests o multiple people collide. In the context o a human
genetic medical examination, it is unaoidable to concurrently acquire genetic
data
14
o one`s relaties, without them being aware o such proceedings. 1his is
where the indiidual`s right to attain inormation clashes with the right to secrecy
and later - when positie results hae come in and are subsequently passed on to
the amily members - with their right to be let alone`
15
. low does the new law
sole this conlict It does not regard the prospect o aecting others as a reason
why claiming o genetic examination shouldn`t happen. It also doesn`t stipulate any
9
Si'itis, in: Kroker,Dechamps ,issuer,, Inormation - eine dritte \irklichkeitsart neben Materie und
Geist, 1995, p. 153 et seqq.
10
(aupit= in: \iese-lestschrit 1998, p. 583, 585.
11
Gesetz ber genetische Untersuchungen bei Menschen . 0-31-2009 ,BGBl. I, 2529,.
12
C. 1he explicit reasons o the drat law proposed by the action Bndnis 90,Die Grnen rom
11-3-2006, B1-Drucks. 16,3233, S. 3, the bill o the Bundesregierung rom 08-29-2008 ,BR-Drucks.
633,08, is unchanged in comparison to this idea.
13
Detailed Koppernock, Das Grundrecht au bioethische Selbstbestimmung, 199.
14
According to 3 Nr. 11 i.V.m. Nr. 4 GenDG data ,gained through genetic analysis, about genetic
properties, i.e. inherited or during insemination or until natiity gained genetic inormation.
15
Detailed Duttge, in: Der Staat 36 ,199,, 281, 301 with urther supporting documents
Gunnar Duttge
44
kind o notiication o relaties concerning the planned ,indirect, assembly o their
genetic make-up. Should, o course, analysis reeal genetic qualities signiicant to
an aoidable and treatable disease, then human genetic adice shall include an
additional recommendation, namely or the examined person to adocate a
genetic consultation to these relaties` , 10 III S. 4 GenDG,.
Obiously, the legislator stroe or a compromise, which aims to aoid eident
disregard o the right to ignorance by immediate conrontation with negatie
inormation. Just as eident is, neertheless, that the utilization o the adised
person as well as the priatization o the inormation conlict, in accordance with
general accountability principles,
16
does not release the physician rom their
responsibility or the initiated notiication o the amily members, ater all.
1his orm o conlict resolution` is somewhat Pharisee-like
1
and moreoer
scarcely a ortunate task: Addressing the amily members ater the already occurred
ascertainment o clinical results easily reeals to them that something is wrong.
Consequently, they will hardly be able to eade - as secretly aspired - the
recommendation to seek human genetic adice themseles.
loweer, only as long as the uture is yet untold, one can speak o tangible as
opposed to simply postulated reedom o decision making. 1he prerogatie o
relaties to be spared the burden o inormation, accordingly, demands their prior
notiication about the planned examination. Otherwise it cannot be pledged that
they will be able to decide or this new and unsought inormation source ree rom
external inluence.
Since this reedom o decision making is not lost once a statement is made, a
submitted consent must be reocable until the notiication about the results is
issued. Inorming the relaties beorehand, howeer, ineitably collides with the
possible wish o the patient to keep their plans secret. 1hen again, this concern
does not preail: Due to the preordained relation to third parties, it is not
unreasonable to ask o the person to waie their right to secrecy, this being
especially true because it regards a planned undertaking rather than already
aailable inormation acquired through coert` testing.
It applies all the more since secretly carrying out the exam ineitably iolates
the warranted interest o the relaties not to hae their personal data gien up. As
made clear by the German Supreme Court o Justice in its recent ruling on the
subject o secret paternity tests`, it is a constitutional statutory duty to oer
indiidual protection rom third party access to personally identiiable inormation
without the person`s knowledge or permission`. As a result, the relaties` right to
inormational sel-ruling would be inringed by allowing or the challenge o
16
to the ineligible escape into priate law in a dierent context ,mission o contact persons,
detailed Duttge, JZ 1996, 556 et seqq.
1
Pharisee-excuses: we do not transer inormation, which is moreoer not haing any concrete
content and which is in particular not mentioning the positie diagnostic indings,, the indings are
getting announced ater abidance o the commendation and in with it authorised by the wish o
inormation o the ailated.
1he Right to Ignorance in Medicine
45
coping with the aorementioned collision o undamental rights to be subject to
the discretion o one indiidual`
18
.
1his surely does not mean that the amily members are essentially handed a
right o eto since that would mean long-ranging preention o uture genetic
diagnostics and would rob the indiidual o any possibility o oresighted lie
planning.
In ancestry cases, a doubting ather`s claim to inormation must yield to een
,only, anticipated prejudice o the child`s interests in the integrity o the current
amily structure and in aoiding o unwanted conrontation with existential
insecurities
19
,compare now 1598a BGB in conjunction with 1 GenDG,. I
this law is recognized, then the right to know one`s own genetic constitution shall
certainly not be thwarted by the relaties` interest in secrecy as long as their right to
inormation ,regarding the examination as such, as well as their reedom o choice
,regarding the awareness o the medical results, are granted and protected.
1he thereo resulting question is: Is the recognition o a ,basic, right to
ignorance speciic to genetic data or releant to all ,health related, inormation
1he idea o exceptionalism`
20
, which, despite all criticism, lays the oundation or
the new Law o Gene Diagnostics, could suggest the irst assumption.
21
German
deelopment o law, howeer, has long been disregarding this drawn line,
exempliied by the discussion on the reorm o the Law o Pregnancy Conlict
22
,
which was also enacted last year. It states that due to the psychologically
exceptional situation, in which a pregnant woman inds hersel ater conspicuous
results o a prenatal diagnosis, it is required not only to oer speciic consulting ,
2a,, but also to preiously notiy the patient about the psychological and ethical
potential or conlict` ,Zi. 2.2. o the PND guideline o the country`s medical
association,
23
which may require approal regarding the collection o prenatal
diagnostics.
A right to ignorance` is unquestionably acknowledged in this situation, and
that is, by no means, with limitation to genetic indings, howbeit the medical
practice noticeably tends to systematically rustrate this right by giing insuicient
inormation and by adertising the necessity o a premature detection o high-risk
pregnancy`
24
.
18
BVerG NJ\ 200, 53, 54 et seq. - Notabene: beyond that it seems to be a legal contradiction in
aluation, that in the lead-up to the genetic analysis there is attached great importance to an inormed
consent concerning the person getting analysed, whereas the ailated are not een getting inormed.
19
In this regard the BGl spoke about a right to ignorance, c. in: NJ\ 2005, 49, 498.
20
1o this detailed Da''HK&nig, MedR 2008, 62 et seqq., KiehntopfH2age-, MedR 2008, 344 et seqq.
21
Sceptical to a general right o lack o knowledge e.g. Si'itis, in: Schweizerisches Institut r
Rechtsergleichung ,issuer,, Genanalyse und Personlichkeitsschutz, 1994, p. 10, 121 et seqq.
22
Act rom 08-26-2009 ,BGBl. I, 2990,.
23
Deutsches Arzteblatt 1998, A-3236 et seqq.
24
According to the general purpose o a PND as it is described in the so-called maternity-
guidelines o the ederal commission o doctors and health unds ,aailable at: www.g-
ab.de,inormationen,richtlinien,19,, it is signiicant, that the claim or consultancy and adice in the
lead-up to the PND-procedure is expressed quite aguely ,c. chapter A, cypher 1,.
Gunnar Duttge
46
Another, nowadays undisputed ield o application, is the unauthorized lIV
test in conjunction with the disclosure o the results, which, aboe and beyond the
interention into the integrity o the body by ein puncture, is considered a
maniest iolation o the right to sel-determination.
25
According to the preailing
opinion, the patient may generally orego owed explanations i they do not wish to
deal with the risks and possible side eects o the designated therapy. It is,
howeer, rightully pointed out that a doctor must not assume such a waier o
inormation hastily or eer conclude conduct implying intent. In point o act, it is
to be implied that one wants to be inormed. 1he inormation on diagnosis, order
o eents, and risks, neertheless, is o such high releance to one`s own
personality that it is justiiable to allow partial or complete inormational
abstinence to those, who wish not to be bothered.
26
Certainly there are also ields o application, in which recognizing a right to
ignorance is out o the question: 1hat is, in cases o endangerment o speciic
others or een the general population as or example in the eent o inectious
diseases or when somebody`s suitability to drie a motor ehicle is in question.
\hen such a threat exists, which is to be determined by means o a medical-
psychological testing, the undoubted priority o the opposed interests call or the
denial o a right to ignorance.
Alarming, howeer, are those circumstances, in which the doctor proceeds in a
paternalistic way or the good` o the patient`s health without irst giing them a
choice in the matter. 1he across the board screening` o newborns by means o
tandem-mass-spectrometry seems to be such a recent instance in which the need
or parental approal as well as the need or limitation to treatable illnesses is
increasingly emphasized.
\ith this last mentioned restriction to remediable symptoms, 16 GenDG
now allows genetic mass screening`, i.e. systematically exercised medical
examinations within the entire population or medical purposes ,compare 3 No.
9 GenDG,. 1he regulation, unortunately, does not ,at least not explicitly, include
the seemingly natural requirement o oluntary participation on the basis o broad
inormation. 1he explanatory statement o the law nebulously mentions that the
25
In this sense e.g. LG Koln NJ\ 1995, 1621 et seqq. with reiew (eichner MedR 2005, 409 et seqq.,
.h-enAruck, MedR 1996, 206 et seq., to the contempt o an explicit reusal o a patient: LuGl NJ\
1994, 3005 et seqq.
26
1he concept o the SPD ,social democratic party, or a so-called patient-rights and accordingly
patient-protect-bill explicitly speaks about a right to lack o knowledge ,c. coalition agreement
rom 10-28-2008, p. 90, ,Lckpunkte eines Patientenrechtegesetzes rom May 2009, p. 3, aailable at:
www.spd.raktion.de,, the ormer opinion, ater what an eectie relinquishment assumed at least a
ague idea o the contures o the object o the relinquishment ,RoIner, NJ\ 1990, 2291, 2294, similar
FengerHK-ot=HHoff'eier, DM\ 2005, 2910 et seq.,, de acto implicates a orced adice. 1he judgement
BGlZ 10, 222 et seqq. ~ NJ\ 1989, 2318 et seqq., which was misleadingly mentioned in aour o
an obligation o inorming, howeer regards the dierent case o a doctor paternalistically ,because o
supposed mental lability, aoiding to gie adice to the ailated, although there was no indication,
that the patient could be aersed to a consultancy.
1he Right to Ignorance in Medicine
4
public interest in mass screening is alued superior to the indiidual interest o
the examined person`
2
, such a way o thinking, howeer, just asks or abuse!
1he right to ignorance with consideration to a possible beneit` is
questionable in yet another context: 1he utilization o imaging processes within the
scope o modern neuroscience introduces the possibility o so called chance
inds` in perspectie to therapy as well as research. 1he physician`s main problems
used to be the risk o acing criminal or liability charges when such conspicuous
eatures were not spotted, moreoer, the struggle o inding the boundaries o his
inestigatie duties.
28
Seemingly taken or granted, on the other hand, was - een
in the context o research studies - the disclosure o indings ,e.g. o an
accidentally discoered brain tumor, to the person aected or reasons o
consideration towards the person`s wellbeing. Slowly now the understanding
preails that the assigned treatment is otentimes limited, and that ,especially
healthy, patients hardly eer expect such horriying news. Consequently, the
patient or test person shall explicitly consent in notiication, something that can
only be done oluntarily` i it happens Aefore the conduct o the ,medical, check-
up and the ,research, study respectiely. It should be sel-explanatory that a
person`s reusal cannot be disregarded or pushed aside by relating to deense o
necessity. In order to aoid the moral conlict a physician is bound to hae,
researchers suggest making it a requirement or participation in the study that the
patient gies their consent to the notiication about a possible chance ind.
29
1he
hereby cleerly intended aoidance o conlict, howeer, paradoxically assumes
that one knows exactly what he does not want to be told, meaning which result
may possibly be ound. 1his is obiously the chie problem o a Right to
Ignorance` as an autonomous decision requires just the knowledge which in act
cannot yet be known.
30
Lssentially, a great deal o oresight is demanded o both
the researcher and the doctor. 1his increase in complexity, conersely, is
unaoidable due to the subject status pertained to not only the patient`s body but
also his inormational rights.
III6 Consol(5at(on -n5e& 'onst(t-t(onal la/
Ater all this, one concludes that although the basic right to inormational
priacy` demands or no absolute` alidity, it sure does demand pri'a facie
legitimacy. 1he latter is, not least o all, a result o the immediate connection
between the undamental right to ignorance and the basic idea o indiidual sel-
2
B1-Drucks. 16,10532, p. 33.
28
See i.e. Hentsche-HK-i+, lortschritte der Neurologie - Psychiatrie 2006, 651 et seqq., Sch-ei'H
SprangerH.rAachHWa-ter, Nerenheilkunde 200, 1041 et seqq., exemplary also Ku''er, Deutsches
Arzteblatt 200, A-3186: I it is the diagnosting doctor istead o the disease, that is rated as a risk,
ignorance gets eleated to an ethic principle.
29
C. Heine'annHHoppeH#ist-HSpickhoffHE-ger, Deutsches Arzteblatt 200, A-1982, 1986.
30
(aupit=, in: \iese-lestschrit 1998, p. 583, 59.
Gunnar Duttge
48
determination, which is restricted not only by physical but also by inormational
pressure`. 1his clariies that, in the end, another aspect o the right to
inormational sel-ruling is questionable, one that has not yet been suiciently
uneiled: 1he soereignty o data`, guaranteed since the amous lederal
Constitutional Court ruling on national census`, by no means only reers to
outgoing` but just as much to incoming` personally identiiable data.
31
loweer, how can one speak o a Right to Ignorance` when ,sel-,knowledge
has been extolled since the Delphian days as a symbol o higher lie o which one
can only hae too little but neer too much`
32
- Obiously the drawbacks`
33
o
wisdom and its Janus-headedness`
34
urge caution. \isdom`s quality to aect
behaior does not automatically hae merely positie eects on the indiidual. But
what about those who hae knowledge at their disposal and beliee to know it all
loweer indispensible their concern and care may be, it always also entails a
tightrope walk. 1oo easily may it turn into inantilizing and then desere the
conclusion, which has once been appropriately articulated by the US-American
judge %randeis, himsel the discoerer` o the Right to Priacy`
35
: 1he greatest
dangers to liberty lurk in insidious encroachment by men o zeal, well meaning but
without understanding!
36
IV6 O-tloo:
Now, where do my obserations lead us lans Jonas once ormulated that
uncertainty is a precondition to reedom`. lrom time to time it can be a relie not
to hae to know something. In other words: Ignorance is ineitably imminent in all
human wisdom, yet not necessarily deemed a law.
31
As well as Hof'ann, Rechtsragen der Genomanalyse, 1999, p. 4 et seqq., Kat=en'eier, Deutsches
Arzteblatt 2006, A-1054 et seqq., dissenting Ret=ko, Prdiktie Medizin ersus ,Grund-,Recht au
Nichtwissen, 2006, p. 149: Allge-meines Personlichkeitsrecht, Stockter, Das Verbot genetischer
Diskriminierung und das Recht au Achtung der Indiidualitt, 2008, p. 511 et seqq.
32
onas, ib.
33
Weh-ing, in: Brsemeister,Lubel ,lrsg.,, Laluation, \issen und Nichtwissen, 2008, p. 1 et seqq.
34
Stein'--er ,ln 2,, p. 235.
35
WarrenH%randeis, 1he Right to Priacy, larard Law Reiew IV ,1890,, Nr. 5.
36
In: Olmstead s. United States ,192,, 2 U.S. 49.
Re'ent Resea&'+ A''(5ents an5 Ne/ A88&oa'+es to
Va''(nat(on
Le)al 8&oble*s &e)a&5(n) t+e test(n) of ne/ 1a''(nes fo&
(nfe't(o-s 5(seases
Erwin Deutsch
I6 Int&o5-'t(on: Latest &esea&'+ a''(5ents
In the last years, spectacular cases occurred concerning phase I o clinical research.
1he pioneer patient, Gelsinger, at the Uniersity o Pennsylania died a dreadul
death ater the administration o a new medicinal drug.
1
1he gene therapy study in
question was perormed the day ater Jesse Gelsinger`s 18
th
birthday, aoiding the
need or parental consent. 1he hospital steered clear o a trial by oering a high
settlement, and exempted the co-deendant rom liability, an ethical adisor, who
had insisted on accepting an adult in the study although the particular disease is
known to be easier to treat in children.
1he second attempt to go wrong was carried out by the American company
Parexel or 1egenero Ltd., a company associated with the Uniersity o
\uerzburg.
2
Light olunteers rom Lngland, Australia, New Zealand, and South
Arica were injected with the antagonist 1GN 1412, two olunteers receied
1
Saolescu, 1wo deaths and two lessons: Is it time to reiew the structure and unction o research
ethic committees, jmedethics 2002, 28, page 1, Paul Gelsinger, Jesse's intent, Bull.Med.Lth.,
June,July 2002, page 5 .
2
Bull.Med.Lth., March 2006, pages 3 .
Lrwin Deutsch
50
placebo. All members o the test group suered rom seere side eects and had
to be treated in the intensie care unit or multiple days. 1egenero`s insurance paid
each injured person LUR 10.000. 1his and more would hae been required o
them, i experimentee insurance, i.e. insurance or test persons including
international coerage, had been contractually applicable.
1he latest eent occurred in Chicago, where a 36-year-old woman died o
multiple organ ailure.
3
Jolee Mohr had participated in a gene therapy study by the
pharmaceutical company 1argeted Genetics, aiming to improe her arthritis
treatment with the aid o an applied gene ector. 1he study has not yet been ully
explored, howeer, it is quite clear she was inused with a ehicle carrying the gene
or the tumour necrosis actor receptor. Reports suggest that it was an early clinical
study o phase I, dealing exclusiely with the saety o this typical gene remedy.
1he patient`s consent had been sought with the premise that these experimental
treatments may not actually be able to reliee her symptoms.
II6 #(sto&.
One o the early cases o medical experiments inoled accines, a accine against
smallpox to be exact. In his #ettres ang-aisesE 3o-taire describes medical trials with
inmates o the Newgate prison in London. 1his case`s history is quite ascinating:
1he Lnglish emissary at the ligh Gates had coneyed an old custom o the
Cherkessian, a tribe in the Caucasus. 1here, the skin o young children was scribed
by the blood o a person inected with smallpox resulting in the eectie
preention o the smallpox irus. 1his custom allegedly stems rom Arabic
cultures. Len the British ambassador`s wie, Lady Montagu, had inoculated her
son with the blood o a person suering rom smallpox.
According to 3o-taireE condemned London prisoners were gien the
opportunity to participate in the inoculation with the smallpox irus in return or
being released. 1he prisoners unanimously agreed and were released ollowing
inoculation. As a result o this trial, the inoculation against smallpox was ery
popular in Lngland. At the same time, howeer, the Paris parliament ,the courts
prior to the reolution, outlawed the inoculation o the smallpox irus, citing
bodily harm.
4
3o-taire criticized this decision and represented the opposite
standpoint in Lngland.
1he largest medical experiment o all time also reoled around accination,
namely the salk accine against poliomyelitis, which was tested on hundreds o
3
lAZ broadsheet daily newspaper rom August 8, 200, page 34: death ater knee problems ,1od
nach Kniebeschwerden,
4
3o-taire in lernand Mass ,ed.,, Lettres anglaises 196 pages 62 ., the history o trials with pocks
accines in the USA and Lngland, described by !oore Daedalus 98 ,1969,, 502 ,504 .,, on
accination trials in lanoer in 166 %en=enh&fer, Der lannoersche lo- und Leibarzt Paul Gottlieb
\erlho ,1699-166, 1992, 10 and experiments in Breslau discussed by 3o--'annHWienau, Inormed
Consent in luman Lxperimentation beore the Nuremberg Code BMJ 1996, 1445.
Recent Research Accidents and New Approaches to Vaccination
51
thousands o children in the United States o America in the mid 1950`s. 1he
subjects were diided equally into two groups. Many hundreds o thousands o
other children were treated with the accine through the extended access study.
1he experiment yielded an undoubtedly clear result regarding the eicacy o the
salk polio accine.
5
1he curse o smallpox, presumed exterminated, returns disguised as a possible
terror attack, reminding onesel o the spread o the plague in the middle ages. 1he
Genuese garrisons o Crimea were besieged by the 1artars. 1hrough the use o
catapults, the besiegers hurled the bodies o plague ictims aboe the barricades
into the enemies` ortresses. 1his led the deenders to lee on galleys, subsequently
carrying the plague to Lurope.
6
1he ollowing entry can be read in the Guinness`
\orld Records`: Ear-iest use of s'a--po+ as a Aio-ogica- weapon; During the French and
1ndian War of 65D<B65?5E %ritish so-diers fighting in ,orth 9'erica at that ti'e distriAuted
A-ankets conta'inated with s'a--po+ a'ong the 9'erican 1ndians" Epide'ics fo--owedE ki--ing
'ore than D7M of affected triAes
5
.
III6 ene&al &-les of 'l(n('al t&(als
1he general rules o clinical trials apply or all new accines against smallpox and
other emerging inectious diseases, such as the bird lu. loweer, one particularity
needs to be stressed: 1he test subjects usually are not at risk o alling ill with
smallpox or any other new epidemic. Such an eent would only occur, i the
experimental proceedings were similar to practices used during \orld \ar II,
when prisoners were separated into groups o accinated and non-accinated
persons and then exposed to the contamination.
8
1his, howeer, is unethical and
possibly een criminal. An elaborate trial with a large number o experimentees,
who are treated with the new accine, should set precedent in the determination o
the saety o a particular drug or treatment, e.g. ensuring the treatment is
eicacious and holds no risk o secondary iral inection.
As ar as eicacy goes, this is similar to the immunisation o donors or the
extraction o plasma to make special immunoglobulins , 8 1PG,. lere as well,
olunteers are inected with a speciic medication or the purpose o immunisation,
e.g. against pertussis. 1he rationale oten gien includes the suicient supply o
5
On polio experiments in third countries c. DeutschE Das Recht der klinischen lorschung am
Menschen 199 page 83.
6
Gieg-er,1he Black Death 195, pages 15.
Geschtsgrundlage, the basis o juridical act i translated literally, is the term
representing circumstances or perceptions shared by both parties at the closing o
the contract that orms the basis o contract. RG began to accept this notion rom
leb. 1922
8
on the basis o good aith doctrine in BGB 242, and this continued to
solidiy throughout numerous decisions to ollow.
9
In 2002, Germany codiied this
judge-made doctrine o Storung der Geschtsgrundlage` in BGB 313.
According to the aboe Article, modiication or termination o contract is made
aailable i the circumstances that hae become the basis o the contract hae
changed undamentally ater the contract was concluded.
Many Luropean countries - including Austria,
10
Greece,
11
Portugal,
12
Poland,
13
Spain,
14
Russia,
15
Italy
16
- hae also proided similar mechanisms either by statute
or case law. lrance and Lngland show some reluctance toward this based on their
strong adocacy o the sanctity o the contract. loweer, they are not without
remedies. lrance Ciil Code Article 1148 allows the release o the party rom
contractual obligation in the case o force 'ajeure. In lrench administratie law. the
i'prN/ision ,unorseeability, was recognized by the highest judges where adjustment
o contract was allowed at the occurrence o unoreseen eents.
1
In Lngland, the
doctrine o rustration handles this problematic situation, as I will explain below.
B. Lngland and U.S.A.
In common law, this mechanism partially inds its place in the doctrine o
rustration, and the doctrine o impracticability. 1he basic logic o the doctrine o
rustration is that i, ater a contract is made, something happens through no ault
o the parties and makes its perormance meaningless, the contract is said to be
6
RGZ 94, 45, 4, RGZ 100, 129, 130.
A much debated issue is the enorcement o ethics rules` o U. S. corporations like loneywell and
\al-Mart under German Law, c. BAG 22..2008 - 1 ABR 40,0 - BAGL 12, 146 ~ NZA 2008,
1248, LAG Dsseldor 14.11.2005 - 10 1aBV 46,05 - NZA-RR 2006, 81, DeinertHKo--e, Liebe ist
Priatsache. Grenzen einer arbeitsertraglichen Regelung zwischenmenschlicher Beziehungen, Arbeit
und Recht ,AuR, 2006, 1-184, Kort, Lthik-Richtlinien im Spannungseld zwischen US-
amerikanischer Compliance und deutschem Konzernbetriebserassungsrecht, Neue Juristische
\ochenschrit ,NJ\, 2009, 129-133.
Rdiger Krause
86
which are used by others persons or their selish goals. Len more, nobody wants
to be monitored permanently by other persons. An unlimited obsering and
indexing o personal data touches human dignity. lurthermore the collecting o
personal data might inluence the behaiour o the employee. I the worker does
not know which personal data are gathered by the employer or een i he knows it
is likely that he will behae in a manner which he assumes to be wanted by the
employer. 1his does not only mean to work as hard as possible and to aoid
negligence. Depending upon the concrete personal data which are collected it is
possible that the employee stops acting naturally because he ears that the
employer will draw negatie consequences. lor example, the employee will omit to
go to the toilet i he or she knows that eery walk to the toilet will be exactly
registered.
3. Common goals
Concerning the common goals, dierent aspects can be distinguished. lirst, there
is a common goal that enterprises unction eiciently so that they can proide job
opportunities and pay taxes. But this is not automatically an argument in aour o
weak data protection law and the possibility to obsere employees without
restrictions. 1he eiciency o enterprises and the eiciency o the economy all
depend on the existence o a certain leel o mutual trust between employers and
employees. An economic system in which the employees are demoralized because
they were generally treated with distrust will not work properly. 1hus, personal
data priacy can enhance the so called social capital` within a society and produce
more eiciency.
Secondly, the compliance issue has to be mentioned once again. In respect o
corruption, antitrust, accounting standards, enironmental law and so on society
expects rom employers that the enterprise as a whole does not iolate the law.
Gien that enterprises are only working with the help o their employees there is a
common goal to enable the employers to combat criminal acts which would be a
detriment to the society as a whole.
A particular problem will be the execution o internal inestigations i there is a
worker suspected to hae committed a criminal act. I the prosecutor starts
inestigations against a suspicious employee the worker is protected by speciic
rights o criminal procedure law. I the employer takes the inestigations in his
own hands there is the danger that the employee lacks these rights.
1o sum up, the problem o data priacy in the ield o employment touches
ery dierent aspects. It is or two reasons obious that the adjustment o the
conlicting interests can not only be achieed by market orces. Due to the unequal
bargaining power o the parties to the employment contract, the employer will
regularly preail. lurthermore common goals cannot be the object o priate
bargaining but hae to be respected at all costs.
New Deelopments in Data Priacy or Lmployees in German Law
8
II6 De1elo8*ent an5 '-&&ent state of e&*an la/ on /o&:e&
5ata 8&(1a'.
In regard to worker data priacy German law proides traditionally a two-
channel-approach:` 1he older channel ollows rom the so called General right to
personality` ,~ Allgemeines Personlichkeitsrecht, and is deeloped by case law.
1he newer one is based on the lederal Data Protection Act. 1hese two channels
which proide a substantial leel o protection are completed by a more procedural
proision stemming rom worker participation.
1. lirst channel: General right to personality ,case law,
1he general right to personality is a product o case law. 1he German Ciil Code
,~ Brgerliches Gesetzbuch, o 1900 does not proide such a right. 1he German
legislator back then reused the creation o a general right to personality because it
estimated that it will not be possible to gie such a right clear limits in particular as
regards damages in case o iolation. 1he ormer Reichsgericht airmed this
position in its case law.
8
It was not until 1954 when the lederal Ciil Court ,~
Bundesgerichtsho, acknowledged the general right to personality in a landmark
case as part o priate law, reerring to the German Constitution ,~ Grundgesetz,
rom 1949 with its undamental rights o protection o human dignity ,Art. 1 GG,
and to sel-ulilment ,Art. 2 I GG,.
9
A lot o urther decisions o the lederal Ciil
Court approed the general right to personality.
10
lence, this right has long been a
commonly accepted element o German priate law, although it was neer laid
down as such in statutory law.
11
1he acknowledgment o the general right to personality can be regarded as an
expression o the important role o undamental rights proided in the German
Constitution or all parts o priate law. In this respect the lederal Constitutional
Court ,~ Bundeserassungsgericht, held in an early landmark decision rom 1958
that undamental rights are not only releant as rights against state action.
12
Rather,
undamental rights represent objectie alues that inluence the whole legal order
and gie guidance or the interpretation o priate law.
13
In its early decisions the lederal Labour Court actually went one step urther
and applied undamental rights een directly against the employer, arguing that the
8
L. g. RG .11.1908 - I 638,0 - RGZ 69, 401, RG 12.5.1926 - I 28,25 - RGZ 113, 413.
9
BGl 25.5.1954 - I ZR 211,53 - BGlZ 13, 334.
10
Important older decisions: BGl 2.4.195 - VI ZR 9,56 - BGlZ 24, 2, BGl 14.2.1958 - I ZR
151,56 - BGlZ 26, 349.
11
See MnchKomm,Ri+ecker, Brgerliches Gesetzbuch, 5. Aul. ,2006,, Anhang zu 12 - Das
Allgemeine Personlichkeitsrecht, Palandt,Sprau, Brgerliches Gesetzbuch, 0. Aul. ,2011,, 823 Rn.
83 .
12
BVerG 15.1.1958 - 1 BR 400,51 - BVerGL , 198.
13
Legal theorists hae stated that the term alue` could be replaced by the term principle` in the
meaning o Dworkins concept o rights, see 9-e+0, 1heorie der Grundrechte ,1986,, p. 125 .
Rdiger Krause
88
power o the employer is comparable with the power o the state.
14
Although the
lederal Labour Court dismissed this approach in the 1980s,
15
the concrete results
do not dier ery much. According to the currently preailing approach
undamental rights oblige the state on the one hand to respect them directly and
on the other hand to protect them against iolation by priate actors.
16
1his applies
also in regard to the general right to personality. Although this right is part o
priate law, it must be interpreted in the light o the undamental right to
personality. 1his is important insoar as the constitutional duty to protect human
dignity and the right to sel-ulilment has a dynamic` character which prompts
the legislator and the courts to reine the legal order urther i priate actors cause
new dangers to the right to personality.
1
1he general right to personality is regarded as a source rom which derie
dierent characteristics deeloped by case law. Contrary to other goods like the
right to the own person or the right to property the right to personality does not
protect a clear deinable sphere. 1hus, it must be assessed in eery case, whether
the general right to personality is aected and, i so, whether it is iolated, which
has to be checked by means o balancing all interests at stake. I the right to
personality is inringed the aected person can claim or the elimination o the
impairment, and in case o a serious iolation also or damages.
18
lrom the ery beginning the lederal Labor Court gae protection to the
priate sphere o employees is-a-is the employer in general and in particular
concerning personal data although the right to personality as such and een more
the term data priacy was not mentioned until the 1980s. 1he \orks Constitution
Act rom 192 ,~ Betriebserassungsgesetz, supported this trend by proiding
expressly that the employer and the works council must protect and encourage the
ree deelopment o the personality o the employees , 5 Abs. 2 BetrVG,.
A much debated kind o cases concerns interiews with applicants. In all o
these cases the Court held that the employer is only entitled to ask or those acts
,or example preious oenses, i they are releant or the perormance o the job.
Other questions are qualiied as unjustiied intrusion into the priate sphere o the
applicant.
19
In other cases the Court held that data in a personnel record must be
deleted i they are wrong
20
and een i they are true but no longer releant or the
14
BAG 3.12.1954 - 1 AZR 150,54 - BAGL 1, 185, BAG 10.5.195 - 1 AZR 249,5 - BAGL 4,
24.
15
BAG 2.2.1985 - GS 1,84 - BAGL ,GS, 48, 122.
16
. Mangoldt,Klein,Starck, Kommentar zum Grundgesetz, Band 1, 6. Aul. ,2010,, Art. 1 Rn. 312
., comprehensie Ruffert, Vorrang der Verassung und Ligenstndigkeit des Priatrechts ,2001,, S.
141 .
1
C. MnchKomm,Ri+ecker, Brgerliches Gesetzbuch, 5. Aul. ,2006,, Anhang zu 12 - Das
Allgemeine Personlichkeitsrecht, Rn. 3.
18
C. MnchKomm,Ri+ecker, Brgerliches Gesetzbuch, 5. Aul. ,2006,, Anhang zu 12 - Das
Allgemeine Personlichkeitsrecht, Rn. 221 ., Palandt,Sprau, Brgerliches Gesetzbuch, 0. Aul.
,2011,, 823 Rn. 123 .
19
BAG 5.12.195 - 1 AZR 594,56 - BAGL 5, 159.
20
BAG 2.11.1985 - 5 AZR 101,84 - NZA 1986, 22.
New Deelopments in Data Priacy or Lmployees in German Law
89
employment relationship
21
. lurthermore the Court held that monitoring o
employees by means o technical deices aects their general right to personality
and is only allowed under certain requirements.
22
lence, the general right to
personality is a well established tool to limit the power o the employer to
superise employees and collect and store personal data.
2. Second channel: lederal Data Protection Act ,statutory law,
1he second channel is the lederal Data Protection Act which came into orce in
19.
23
1his Act is the result o the rising awareness o the dangers to priacy in
the 1960s and 190s by the ongoing technical deelopment in inormation
technology. Although the ocus was in the irst instance on the processing o
personal data by the state, the Act applies rom the ery beginning also to the
processing o personal data by priate bodies. 1he general concept o the lederal
Data Protection Act in its primary ersion was two-old: On the one hand the Act
coered only automated data processing or at least the using o data rom non
automated iling systems. In this respect the ield o application o the lederal
Data Protection Act was originally smaller than the general right to personality-
approach. On the other side the Act is stricter because it establishes i applicable a
general prohibition o processing personal data with the reseration o permission,
a legal technique oten used in administratie law but alien to priate law. 1he
central argument o the legislator was that the misuse o personal data can aect
the priate sphere o the citizens and thus it has to be protected against speciic
kinds o processing o personal data which are deemed to be exceptionally
dangerous.
24
Some legal scholars argue that this concept can be regarded rom a doctrinal
point o iew as a kind o risk management. \hile the general right to personality-
approach protects only against iolations o the priate sphere the lederal Data
Protection Act goes urther and inhibits already the creation o risks which can
iolate the general right to personality in uture.
25
1his is supported by the grounds
o the lederal Data Protection Act which stated or example that the transerring
o personal data to third parties endangers ,that means not iolates, the priate
21
BAG 13.4.1988 - 5 AZR 53,86 - NZA 1988, 654.
22
BAG 2.3.2003 - 2 AZR 51,02 - BAGL 105, 356 ~ NZA 2003, 1193, BAG 29.6.2004 - 1 ABR
21,03 - BAGL 111, 13 ~ NZA 2004, 128, BAG 26.8.2008 - 1 ABR 16,0 - BAGL 12, 26 ~
NZA 2008, 118.
23
1he term data protection` is misleading because it is not to protect data but persons against the
misuse o their personal data.
24
B1-Drucksache ,102 o 21,9,193, p. 14 .
25
%u--, Zweielsragen um die inormationelle Selbstbestimmung - Datenschutz als Datenaskese,
Neue Juristische \ochenschrit ,NJ\, 2006, 161-1624 ,at 1623,, Eh'ann, Zur Zweckbindung
priater Datennutzung, Recht der Datenerarbeitung ,RDV, 1988, 169-180 ,at 18,, Fran=en,
Arbeitnehmerdatenschutz - rechtspolitische Perspektien, Recht der Arbeit ,RdA, 2010, 25-263 ,at
258,, G&--ner, Daten- und Inormationsschutz im Arbeitserhltnis ,1982,, p. 6 .
Rdiger Krause
90
sphere.
26
Other scholars argue - in line with case law o the lederal Ciil Court
2
-
that the lederal Data Protection Act concretizes the general right to personality
and thus eery iolation o the Act must be regarded as a iolation o the general
right to personality.
28
At any rate, the lederal Labor Court uses the general right to
personality to ill the gaps o the lederal Data Protection Act.
29
lor more than thirty years the lederal Data Protection Act did not proide
particular regulations or worker priacy. 1hereore, only the general rules or data
processing by priate bodies apply. Although the lederal Labor Court reers to
this Act in some cases
30
it remains an exceptional part o employment law because
the legal style` o the Act resembles administratie law more than priate law.
In 2009, induced by the data protection scandals mentioned at the beginning, a
new proision deoted especially to worker data priacy was introduced into the
Act , 32 BDSG,.
31
In principle this proision approes only the state o case law
proiding that any processing o personal data o workers shall only be allowed i it
is necessary or job-related purposes. But the new proision expands the
application o the lederal Data Protection Act undamentally by declaring as
irreleant whether or not the employer carries out automated data processing or at
least uses personal data rom non automated iling systems. 1his means that the
primary purpose o the Act, namely to proide protection against particular
dangers, was sidelined. Now according to the lederal Data Protection Act eery
processing o worker personal data is prohibited unless it is allowed by the Act.
1hus, the general right to personality is no longer necessary as an instrument to ill
the gaps o the Act.
3. Constitutional law: Right to inormational sel-determination`
In 1983 the lederal Constitutional Court deeloped in a landmark case the so
called undamental right to inormational sel-determination` ,Grundrecht au
26
B1-Drucksache ,102 o 21,9,193, p. 18.
2
BGl ..1983 - III ZR 159,82 - NJ\ 1984, 436, BGl 22.5.1984 - VI ZR 105,82 - BGlZ 91,
233 ,at 239-240,.
28
Si'itis, Datenschutz: Von der legislatien Lntscheidung zur richterlichen Interpretation, Neue
Juristische \ochenschrit ,NJ\, 1981, 169-101 ,at 101,.
29
BAG 6.6.1984 - 5 AZR 286,81 - BAGL 46, 98 ~ NZA 1984, 321 ,employer has to wipe out a
questionnaire o an applicant who doesn`t succeed,, BAG 16.11.2010 - 9 AZR 53,09 - NZA 2011,
453 ,employee is entitled to inspect his personnel record ater the termination o the employment
relationship,.
30
C. BAG 2.5.1986 - 1 ABR 48,84 - BAGL 52, 88 ~ NZA 1986, 643, BAG 22.10.1986 - 5 AZR
660,85 - BAGL 53, 226 ~ NZA 198, 415, BAG 30.8.1995 - 1 ABR 4,95 - BAGL 80, 366 ~ NZA
1996, 218.
31
C. Erfurth, Der neue Arbeitnehmerdatenschutz im BDSG, Neue Juristische Online-Zeitschrit
,NJOZ, 2009, 2914-292, oussen, Die Neuassung des 32 BDSG - Neues zum
Arbeitnehmerdatenschutz, in: Jahrbuch des Arbeitsrechts ,JArbR, 4 ,2010,, 69-91, Sch'idt,
Arbeitnehmerdatenschutz gem| 32 BDSG - Line Neuregelung ,ast, ohne Vernderung der
Rechtslage, Recht der Datenerarbeitung ,RDV, 2009, 193-200, (hsing, Datenschutz im
Arbeitserhltnis, Neue Zeitschrit r Arbeitsrecht ,NZA, 2009, 865-80.
New Deelopments in Data Priacy or Lmployees in German Law
91
inormationelle Selbstbestimmung`,, which deries rom the undamental general
right to personality,
32
although some aspects o such a right were acknowledged in
precedents
33
. 1he Court held that modern orms o automated processing o
personal data create serious risks or the sel-determination because people can be
blocked rom unconstrained behaiour i they cannot know which inormation
about their own person is known in their social enironment. lence, eerybody
has the right to decide in principle on the disclosure and use o personal data. 1he
lederal Constitutional Court has airmed its opinion in a lot o decisions.
34
lrom
this point o iew there is no personal data which is irreleant at the outset.
1hereore the right to inormational sel-determination` tends to be a more rigid
approach than the right to priacy-approach in its traditional meaning o a right
to be let alone`.
35
In particular the right to inormational sel-determination`
protects not only against inringements o the right to personality but also against
endangering this right.
36
1he releance o that decision, which is oten called the Magna Charta` o
German data protection law,
3
or worker data priacy is contested. Some legal
scholars regard the decision as a great step orward and transer the right to
inormational sel-determination` immediately into the employment
relationship.
38
Other scholars stress that the lederal Constitutional Court has dealt
with a state action, namely a census, and point out the undamental dierence
between public law and priate law.
39
But in later cases the lederal Constitutional
Court didn`t hesitate to apply the right to inormational sel-determination` to
priate legal relations.
40
1he lederal Labor Court doesn`t worry too much about
32
BVerG 15.12.1983 - 1 BR 209, 269, 362, 420, 440, 484,83 - BVerGL 65, 1. See also BVerG
2.6.1991 - 2 BR 1493,89 - BVerGL 84, 239 ,at 280,: lundamental right o data protection
,Grundrecht au Datenschutz,`.
33
Beginning with BVerG 16..1969 - 1 BL 19,63 - BVerGL 2, 1.
34
C. BVerG 12.4.2005 - 2 BR 102,02 - BVerGL 113, 29 ,at 45 .,, BVerG 4.4.2006 - 1 BR
418,02 - BVerGL 115, 320 ,at 341 .,, BVerG 13.6.200 - 1 BR 1550,03, 235,04, 603,05 -
BVerGL 118, 168 ,at 183 .,. Current and comprehensie oeriew on the case law o the lederal
Constitutional Court on the right to inormational sel-determination` Fren=, Inormationelle
Selbstbestimmung im Spiegel des BVerG, Deutsches Verwaltungsblatt ,DVBl., 2009, 333-339,
critical o #adeur, Das Recht au inormationelle Selbstbestimmung: Line juristische
lehlkonstruktion, Die Oentliche Verwaltung ,DOV, 2009, 45-55, 2itschas, Inormationelle
Selbstbestimmung zwischen digitaler Okonomie und Internet, Datenschutz und Datensicherheit
,DuD,, 1998, 139-149 ,at 146-148,.
35
WarrenH%randeis, 1he Right to Priacy, 4 larard Law Reiew ,1890,, 193-220 ,at 195,.
36
C. BVerG 10.3.2008 - 1 BR 2388,03 - BVerGL 120, 351 ,at 360,, BVerG 11.3.2008 - 1 BR
204,05, 1254,0 - BVerGL 120, 38 ,at 39 .,.
3
L. g. Hoff'annBRie', Inormationelle Selbstbestimmung in der Inormationsgesellschat, Archi des
oentlichen Rechts ,AoR, 123 ,1998,, 513-540 ,at 515,.
38
Si'itis, Die inormationelle Selbstbestimmung - Grundbedingung einer erassungskonormen
Inormationsordnung, Neue Juristische \ochenschrit ,NJ\, 1984, 398-405 ,at 400-402,.
39
G&--ner, Die gesetzgeberische 1rennung des Datenschutzes r oentliche und priate Daten-
erarbeitung, Recht der Datenerarbeitung ,RDV, 1985, 3-16 ,at 12-13,. See also Giesen, Das
Grundrecht au Datenerarbeitung, Juristenzeitung ,JZ, 200, 918-92.
40
BVerG 11.6.1991 - 1 BR 239,90 - BVerGL 84, 192 ,at 194-195,, BVerG 23.10.2006 - 1 BR
202,02 - RDV 200, 20, BVerG 13.2.200 - 1 BR 421,05 - BVerGL 11, 202 ,at 228,, BVerG
11..200 - 1 BR 1025,0 - NJ\ 200, 30.
Rdiger Krause
92
doctrinal questions. In some cases the Court reerred expressly to the right to
inormational sel-determination`.
41
In other cases which are in act worker`s data
priacy cases too the Court neglected this aspect and reerred only to the general
right to personality but came to the same results.
42
Neertheless, the deelopment
o a particular undamental right to inormational sel-determination` has
contributed to the amendment and the sharpening o the lederal Data Protection
Act during the last twenty years. In particular this right has increased the awareness
or data priacy problems at the workplace and is uelling the eorts to elaborate
worker data priacy.
4. Protection o worker data priacy by means o worker participation
One particular kind o protection o worker priacy stems rom worker
participation law. According to the \orks Constitution Act o 192 the employer
is not allowed to introduce technical deices which are determined to monitor
employees unless he has achieed an agreement with the works council i existing
, 8 I Nr. 6 BetrVG,. I the parties ail to agree then a conciliation committee
decides , 8 II, 6 BetrVG,. 1his regulation additionally aims to saeguard the
general right to personality o the employees. 1he lederal Labour Court interprets
that proision in a broad sense and applies it to all cases o automated data
processing irrespectie o whether or not the employer has the intention to
monitor his sta. It is suicient that the technical deice is as such part o a system
which is able to monitor employees by processing personal data o workers
automatically.
43
lurthermore, according to another proision o the \orks
Constitution Act questionnaires require the consent o the works council , 94
BetrVG,. In both cases the collectie actors cannot deprie the employee o the
protection proided by the general right to personality. 1he leel o protection is
mandatory and does not stand at the disposal o employer and works council.
5. Impact o Luropean law
Luropean law has not had a deep impact on German law on worker data priacy
until now. In 1995 Data Protection Directie 95,46,LC was enacted. 1his
directie concerns the protection o indiiduals with regard to the processing o
personal data and on the ree moement o such data in general by state or priate
actors and does not address in particular employment law. lurthermore - and in
line with the original ersion o the lederal Data Protection Act
44
- it coers only
41
C. BAG 14.12.2004 - 1 ABR 34,03 - NJOZ 2005, 208.
42
C. BAG 29.6.2004 - 1 ABR 21,03 - BAGL 111, 13 ~ NZA 2004, 128.
43
BAG 9.9.195 - 1 ABR 20,4 - BAGL 2, 256. But there is no general exclusion o eidence
improperly obtained on grounds o iolation o worker participation rights, c. BAG 13.12.200 - 2
AZR 53,06 - NZA 2008, 1008.
44
See aboe II 2.
New Deelopments in Data Priacy or Lmployees in German Law
93
processing o personal data by automatic means or by non automated iling
systems.
45
1here hae been seeral announcements o the Luropean Commission
to propose a directie especially on the protection o employee personal data but
nothing has happened. Neertheless Directie 95,46,LC gies some guidelines
which hae to be respected at the leel o Member States` law although the
directie reers only to the approach that data protection seeks to protect the
priate sphere o persons while a right to inormational sel-determination` is not
mentioned.
46
1he most important aspect so ar is that according to the LCJ case law this
directie has the eect o ull harmonization, because it aims to establish a leel
playing ield or enterprises in Lurope.
4
1hat means that the leel o data
protection proided by the directie is strict in both directions. 1hereore national
law is prohibited rom setting either a lower or a higher leel o protection o
personal data.
48
Since the Lisbon 1reaty came into orce in December 2009, Art. 8 o the
Luropean Charter o lundamental Rights ,LClR, which guarantees the protection
o personal data must also be recognized because pursuant to Art. 51 the Charter is
applicable i the Member States implement Union law.
49
It is at this moment ar
rom clear whether Art. 8 LClR will aect the ull harmonization-approach.
In 2010 the Luropean Commission launched a new comprehensie approach
on data protection in the Luropean Union to adjust the existing legal ramework to
the current demands o inormational society.
50
1he Commission has announced it
would propose new legislation in 2011, but up to now nothing has happened.
45
See Art. 3 para. 1 Directie 95,46,LC.
46
C. Art. 1 para. 1 Directie 95,46,LC. 1his is in line with the Council o Lurope Conention or
the Protection o Indiiduals with regard to Automatic Processing o Personal Data o 28,1,1981
,c. Art. 1,.
4
LCJ 20.5.2003 - C-465,00, C-138,01 and C-139,01 - LCR 2003, I-4989 ~ RDV 2003, 231 -
Osterreichischer Rundunk ,para 39,, LCJ 6.11.2003 - C-101,01 - LCR 2003, I-1291 ~ RDV 2004,
16 - Lindqist ,para 96,, LCJ 16.12.2008 - C-524,06 - LCR 2008, I-905 ~ RDV 2009, 65 - luber
,para 51,.
48
%rhann, Mindeststandards oder Vollharmonisierung des Datenschutzes in der LG, Luropische
Zeitschrit r \irtschatsrecht ,LuZ\, 2009, 639-644, Forst, \ie iel Arbeitnehmerdatenschutz
erlaubt die LG-Datenschutzrichtlinie, Recht der Datenerarbeitung ,RDV,, 2010, 150-155.
49
See %rit=, Luropisierung des grundrechtlichen Datenschutzes, Luropische Grundrechte
Zeitschrit ,LuGRZ, 2009, 1-11. Another basis or data protection at Luropean leel is Art. 6 para. 2
LU ,~ 1reaty on Luropean Union, in conjunction with Art. 8 o the Luropean Conention or the
Protection o luman Rights and lundamental lreedoms which protects the right to priacy. Art. 8
o this Conention is also reerred in recital 10 o Directie 95,46,LC.
50
COM ,2010, 609 inal ,4,11,2010,.
Rdiger Krause
94
IV6 Ma(n as8e'ts of t+e b(ll
1. General issues
A. Policy considerations
1he policy o the drat is to oster legal certainty in an important ield o
employment law. 1he main purpose is o course to protect the interests o the
employees.
51
loweer, the drat also aims to take care or the interests o the
employer in particular in ensuring the demands o compliance and in preenting
corruption.
52
It is remarkable that the grounds also emphasize the creation o a
climate o mutual trust as a goal or at least a result o the Act.
53
1his may be
regarded as reerence to an economic analysis o data protection regulation and
notably to the concept that employees are more motiated to perorm their work
with due diligence and loyalty i they are respected as equal partners and not
treated with distrust. But the grounds reer in this respect neither to conceptual
nor to empirical analysis.
A recent inquiry o works councils gies some eidence that excessie
sureillance o workers is detrimental to the quality o their work perormance and
in the long run to the eiciency o the enterprise.
54
1his inquiry shows that there is
a certain correlation between data protection problems and other conlicts in the
enterprise like disregarding o participation rights, a stressed working atmosphere,
a poor economic perormance and een work stoppage.
55
But, as regards the
interplay between neglecting worker data protection and ineiciency o an
enterprise it is hard to say what is the chicken and what is the egg.
B. Structure and main rules and principles
In respect o the structure irst o all it must be noticed that the Act shall not be
separate but shall be included into the existing lederal Data Protection Act. 1his
might cause some uncertainties on the relation between the new speciic proisions
and the general proisions o the Act, although this problem should not be
oerestimated.
\hile the amendment in 2009 comprised only one proision the current drat
proides thirteen rules. 1hese new proisions establish a two-old system. lirst,
the Act makes a distinction between the dierent periods o the employment
relationship and dierentiates between the period prior to the conclusion o the
51
B1-Drucksache 1,4230 o 15,12,2011, p. 12.
52
B1-Drucksache 1,4230 o 15,12,2011, p. 12.
53
B1-Drucksache 1,4230 o 15,12,2011, p. 12.
54
\SI Report ,5,11,2010,, aailable at http:,,www.boeckler.de,pd,p_wsi_report_5_10.pd.
55
See also Gantt, An Aront to luman Dignity, Llectronic Mail Monitoring in the Priate Sector
\orkplace, 8 larard Journal o Law & 1echnology ,1995,, 345-425 ,at 419,.
New Deelopments in Data Priacy or Lmployees in German Law
95
employment contract and the period during the employment contract. Secondly,
the drat combines the two generally possible techniques or regulating a permit:
On the one hand the bill proides some general clauses.
56
On the other hand it
regulates in a detailed manner under which prerequisites the usage o special
instruments or monitoring workers shall be lawul, like ideo sureillance,
5
positioning systems
58
and biometric methods,
59
which are deemed to be
exceptionally dangerous to the right to priacy o employees.
60
1hus, the drat
combines more abstract and more concrete rules. 1he concrete rules shall
contribute to legal certainty in situations with a high risk o iolating the rights o
workers. 1he general rules shall apply to all other cases and thereore proide an
all-oer regulation notably or those methods o monitoring employees which are
not known today. 1he bill seeks to use the adantages o both manners o
techniques or regulating permits.
61
linally, the enisaged proisions contain a
large number o proisions ,no less than 18, on the documentation and disclosure
o the processing o personal data which are to contribute to a high leel o
transparency.
62
According to the undamental rule o the lederal Data Protection Act as
mentioned aboe eery kind o collecting, processing or using o personal data is
prohibited unless it is permitted by law or by consent o the concerned person.
63
1his general rule is concretized by some other rules o the drat. Prior to the
conclusion o the employment contract the employer may collect the name and the
address o the applicant or a job.
64
1his seems as a matter o course. But last all
the German Ministry or lamily Aairs and ie large companies ,inter alia
German Mail, German 1elekom, Procter and Gamble, started a pilot scheme with
entirely anonymous applications to aoid any discrimination in the hiring
procedure because there is some eidence that applicants with 1urkish names hae
less chances to get a job than applicants with German names. More important is
another point: 1he employer may collect only those other personal data which he
must know or assessing the ability o the applicant to perorm the intended job.
65
In other words, the personal data must be job-related.
56
32, 32b, 32c, 32d, 32e BDSG-L.
5
32 BDSG-L.
58
32g BDSG-L.
59
32 h BDSG-L.
60
Additionally the processing o personal data is regulated i these data are generated by using
communication systems or proessional purposes , 32i BDSG-L,. I communication systems are
permissibly used by the employee or priate goals then media law ,1elecommunication Act ~
1elekommunikationsgesetz ~ 1KG, applies.
61
1hus, it is partial i some scholars state that this mode o regulation cumulates the disadantages,
c. %" %uchner, Betriebliche Datenerarbeitung zwischen Datenschutz und Inormationsreiheit, in:
lestschrit r l. Buchner ,2009,, 153-162 ,at 156 .,, Fran=en, Arbeitnehmerdatenschutz -
rechtspolitische Perspektien, Recht der Arbeit ,RdA, 2010, 25-263 ,at 261,.
62
C. B1-Drucksache 1,4230 o 15,12,2011, p. 12 .
63
4 Abs. 1 BDSG.
64
32 Abs. 1 S. 1 DDSG-L.
65
32 Abs. 1 S. 2 and 3 BDSG-L.
Rdiger Krause
96
In respect o those grounds which are coered by antidiscrimination law ,race,
ethnic origin, sex, religion or belie, disability, sexual orientation,
66
the drat is
more rigid in order to preent circumention. Personal data may only be collected
i an unequal treatment based on these grounds exceptionally constitutes no
discrimination because the strict requirements o antidiscrimination law are met.
6
1hat means that the existence or non-existence o a characteristic related to one o
these grounds constitutes a genuine and determining occupational requirement,
proided that the objectie is legitimate and the requirement is proportionate. 1his
spilloer eect o antidiscrimination law on data priacy law is internationally well
known and or example part o U. S. law too.
68
1he drat will extend this test to
the criminal records o an applicant although there is no need or a spilloer eect
o antidiscrimination law. 1his would apparently modiy the case law at hand
because the lederal Labor Court has required up to now only a job-related reason
or the question on preious conictions
69
while antidiscrimination law is stricter.
1he grounds do not gie any explanation to this change o case law.
0
lurthermore the drat reers seeral times to the principle o proportionality as
a requirement o collecting, processing or using o personal data.
1
1his relects a
deelopment in case law but so ar it is not expressly proided in the lederal Data
Protection Act.
C. Lect o the consent o the employee concerned
As mentioned the lederal Data Protection Act permits in general the processing o
personal data, i the aected person declares her consent and some additional
requirements are met.
2
In particular this consent must be based on a ree decision.
1he drat will depart rom this rule and will gie eect to the consent only in a
ew cases which are expressly mentioned.
3
1he reason or this deiance is
obiously the general distrust o the possibility o ree decisions o applicants or
workers. Some scholars argue that this is not in line with Art. ,a, o Data
Protection Directie 95,46,LC, which proides the possibility o a consent,
because according to the ull harmonization-approach o the LCJ
4
Member States`
law may not derogate rom the protection leel o Union law.
5
On the other hand,
66
According to the German Lqual 1reatment Act ,~ Allgemeines Gleichbehandlungsgesetz, o 2006
as implementation o Directies 2000,43,LC, 2000,8,LC, 2002,3,LC and 2004,113,LC.
6
32 Abs. 2 BDSG-L.
68
C. Finkin, Priacy in Lmployment Law, 3rd Ld. ,2009,, p. 21 .
69
BAG 20.5.1999 - 2 AZR 320,98 - BAGL 91, 349 ~ NZA 1999, 95.
0
Critically Forst, Der Regierungsentwur zur Regelung des Beschtigtendatenschutzes, Neue
Zeitschrit r Arbeitsrecht ,NZA, 2010, 1043-1048 ,at 1045,.
1
32 Abs. , 32c Abs. 4, 32d Abs. 1 Nr. 3, Abs. 2 Nr. 1, 32e Abs. 3 S. 1 BDSG-L.
2
4 Abs. 1, 4a BDSG.
3
32l Abs. 1 BDSG-L.
4
See aboe III 5.
5
Forst, \ie iel Arbeitnehmerdatenschutz erlaubt die LG-Datenschutzrichtlinie, Recht der Daten-
erarbeitung ,RDV,, 2010, 150-155 ,at 152-153,, (hsing, Verbesserungsbedar beim
Beschtigtendatenschutz, Neue Zeitschrit r Arbeitsrecht ,NZA, 2011, 16-20 ,at 18,.
New Deelopments in Data Priacy or Lmployees in German Law
9
the proisions in the drat can be seen as an irreutable presumption that due to
the subordination o applicants and employees to the employer, unambiguous
consent also required by the directie will not exist within a hiring procedure or an
employment relationship.
2. Selected Problems
?@
A. Medical screening
Inter alia the bill addresses the problem o medical screening o applicants. It
proides that medical screenings will be only lawul i a particular health status o
the employee is an essential and determining occupational requirement.
lor
example the employee shall be sent into the tropics. lurthermore the consent o
the applicant is necessary. 1his consent is entirely oluntary. 1he employer may
not discriminate against the applicant because o his reluctance to undergo a
medical screening which is not necessary to assess the ability to perorm the job
although this is not expressly mentioned in the bill. Genetic screenings are
regulated by a particular Act which came into orce in lebruary 2010 and which
proides that such screenings are generally prohibited, with ery ew exceptions in
order to protect the worker himsel.
8
B. Video sureillance
One o the most disputed situations concerns the sureillance o employees with
ideo cameras.
9
At the moment dierent rules apply depending on the act
whether the obseration occurs in publicly accessible areas or non-publicly
accessible areas.
80
In a nutshell: As regards publicly accessible areas like shops, banks, restaurants
a special proision o the lederal Data protection Act applies.
81
According to this
proision the sureillance is permitted i there is a suicient purpose ,or example
preention o robbery or thet,. 1he sureillance must be appropriate and
6
Due to the limited extent o this paper many other important topics like whistleblowing,
compliance and enorcement are omitted.
Opponents argue that the System is not only generally ineectie at punishing
oenders and deterring malign online behaiors, but also inringes on legally
protected rights o internet users.
8
1his article deelops key arguments on both
sides o the debate, with a special emphasis on the role o online actiities in the
adancement o indiidual rights. I argue in particular that the potential or
anonymity plays a critical role in presering the potency o cyberspace as a enue
or promoting the right to equality and to an autonomous priate lie.
1he article begins by sketching the background o the RNVS, including
rationales or its creation, technical architecture, and scope o applicability online.
Next, I describe the implementation o the System and its initial results, ollowed
by a discussion o the pending constitutional challenge. I proceed to consider the
general relationship between indiidual priacy` ,critically, or this article, priacy
o identity, and engagement with the online community, including a discussion o
major personal reedoms that may be impacted by the enorcement o the System.
I urther address the legal status o priacy in Korea and explore expanded notions
o the concept in light o issues related to the right o expression and the right o
equality. I conclude with a relection on the relationship between goernment
incursions into the basic mechanisms o cyberspace participation and the
experience o indiiduals in the society. 1hroughout this article, I seek to elaborate
upon the ollowing notion: an essentially ree cyber community meaningully
adances the social equality and personal autonomy o indiiduals. A superised
and e+ ante restricted cyberspace is not just a missed opportunity to promote
attractie policy, but an aront to indiidual rights.
9
uture. 1his is described in Korea as restrictie boninhwaginje`, or restrictie sel-identity
eriication`.
6
Releant criminalized expressions include certain political expressions, deamation, and contempt.
See Gukgaboanbeop |National Security Act[ ,Law No. 10 o 1948, a'ended A0 Law No. 5454 o 199,,
lyeongbeop |Criminal Act[ ,Act No. 293, Sep. 18, 1953, amended by Act No. 623, Jul. 29, 2005,,
arts. 30, 311. lor a detailed analysis o criminal laws in Korea related to expression, see John Leitner,
(o 2ost or ,ot to 2ost; Cri'ina- Sanctions for 8n-ine E+pression in the RepuA-ic of Korea, 1LMP. IN1`L &
COMP. L.J. ,orthcoming Spring 2011,.
Deamatory and contemptuous statements can gie rise to ciil suits or damages and other
remedies. See Minbeop |Ciil Act[ ,Act No. 9650, Aug. 9, 2009,, art. 64.
8
Current eorts by opponents o the System utilize a constitutional rights theory in a pending legal
challenge to the application o the RNVS, as opposed to a serious campaign to adocate or its
legislatie repeal on the basis o policy arguments. See supra note 4.
9
By right`, I reer to an entitlement o a party to act in a particular way. As I use the concept o a
right` in this discussion, the entitlement in question is a right by irtue o the act that it may be
legally exercised in a manner that is distinctly anti-majoritarian ,exercisable in a manner that a social
majority disapproes o, and anti-utilitarian ,exercisable in a manner that does not produce the
optimal outcome under a particular calculation o social welare or utility,. SeeE e"g"E Ronald Dworkin,
1AKING RIGl1S SLRIOUSL\ 268-28 ,19,.
Korean Netizen Lquality in the Shadow o Real Name Veriication
105
II6 4a':)&o-n5 of t+e RNVS
1C
1he RNVS was introduced into law through an amendment o the Inormation
and Communications Network Act, passed on January 26, 200.
11
Under the
terms o the statute, the Korean president is empowered to decree that websites
with more than 100,000 users per day must prompt their users to conirm their
identities using Korean national identiication numbers,
12
the identiying data is
presered and can be matched in the uture with the username associated with a
particular post.
13
Ater preiously establishing a less inclusie scope or the
RNVS,
14
the present enorcement decree engages the ull scope o the statutory
grant o authority and applies to all websites with more than 100,000 users per
day.
15
As a urther precaution against the existence and continuing public
aailability o legally suspect content, the Inormation and Communications Act
proides that internet portals are to respond to complaints o allegedly illegal
content
16
by ollowing certain takedown procedures.
1
Legally prescribed
procedures
18
enable goernment oicials, including prosecutors, oicials o the
Korean tax serice, and oicials o the Korean CIA to obtain inormation on the
identities o particular netizens rom internet portals.
1he stated justiications or the RNVS adance an objectie o improing the
ciility o cyber-etiquette and deterring malign comments, such as those iolating
the laws o deamation, contempt, and tortious inasions o priacy. Cyber-
deamation
19
is considered a widespread problem in Korea,
20
and amous instances
10
lor a more detailed explanation o the design and introduction o the RNVS, see Leitner, supra note
2, at 90-91.
11
Jeongbo tongsinmang iyong chokjin mit jeongbo boho deunge kwanhan beopryul |Act on
Promotion o Inormation and Communications Network Utilization and Inormation Protection[
,Act No. 8289, Jan. 26, 200,, art. 44-5 ,the Inormation and Communications Network Act`,.
12
1d" See a-so lyung-eun Kim, Do new 1nternet regu-ations curA free speechO, JOONGANG DAIL\, Aug. 13,
2008, a/ai-aA-e at http:,,joongangdaily.joins.com,article,iew.aspaid~28935. Indiiduals who do
not hae a Korean national identiication number are eectiely preented rom actiely engaging
with the online community through the internet portals subject to the RNVS. 1he question may be
posed: does one exist as a person in cyberspace without the capacity or interacting with the online
community
13
See Lnorcement Decree o the Inormation and Communications Network Act ,Presidential
Decree No. 2128, Jan. 28, 2009,, art. 30.
14
See Lnorcement Decree o the Inormation and Communications Network Act ,Presidential
Decree No. 20199, July 2, 200,, art. 22.
15
1his standard is consistent with the parameters authorized by the statute and speciied by executie
enorcement decree. See Lnorcement Decree, supra note 13.
16
1he scope o deamatory materials to be taken down is statutorily speciied. Inormation and
Communications Network Act, supra note 11, at art. 44-,1,, ,2,.
1
1he Inormation and Communications Network Act prescribes that internet portals delete
obiously oensie posts, while taking down posts o ambiguous legality or 30 days during a reiew
period. 1d" at art. 44-2,4,.
18
Jeonki tongsin saob boep |Llectronic 1elecommunications Business Act[ ,Act no. 10166, March
22, 2010,, art. 83.
19
Cyber-deamation is designated as a speciic crime under Korean law and is subject to greater
punishments than deamatory statements made oline. See Inormation and Communications
Network Act, supra note 11, at art. 0.
John M. Leitner
106
o malicious online comments hae catalyzed public opinion against the perceied
menace o objectionable online expression. In a particularly signiicant instance,
the suicide o beloed actress Jin-sil Choi
21
in October o 2008 led to speculation
that her suicidal eelings were shaped to a signiicant degree by online rumors,
22
and expansion o the RNVS was expedited ollowing the suicide.
23
lurther examination reeals an additional goernment motiation. Social
moements organized online hae in some cases resulted in notable ciic unrest. A
persistent rumor that American bee could inect consumers with mad cow disease
triggered growing social omentation, largely online, culminating in massie
outdoor demonstrations.
24
1he Korean goernment responded to the
embarrassing and disruptie episodes by seeking new instruments or the
preention o at least certain orms o social demonstration.
25
One such
instrument is the RNVS. 1he adance identiication o potential demonstration
organizers acilitates state intererence with or preention o public spectacles. In
deending the need or urther online identity-related measures, President Myung-
Bak Lee declared that Korea must counteract a phenomenon in which inaccurate,
alse inormation is disseminated, prompting social unrest that spreads like an
epidemic.`
26
III6 In(t(al Res-lts
Initial research has produced little eidence o a substantial reduction o legally
objectionable comments since the introduction o the RNVS. A general surey o
Korean netizen behaior has ound that, contrary to common assumption, the
rates at which internet user behaior deiates rom particular social norms are not
increased when netizens are acting anonymously, casting doubt upon the promise
20
1he Korean police reported 10,028 cases o online libel in 200, a substantial increase rom the
3,66 cases reported in 2004. Sang-hun Choe, Korean StarJs Suicide Reignites DeAate on WeA Regu-ation,
N.\. 1IMLS, Oct. 12, 2008, a/ai-aA-e at
http:,,www.nytimes.com,2008,10,13,technology,internet,13suicide.html.
21
In Korea, amily surnames are stated irst, ollowed by the indiidual`s gien name. In this article, I
adopt the western practice or the reader`s conenience, except in ootnote reerences, where I ollow
the conention used by the source publication.
22
See, e.g., Sang-hun Choe, WeA Ru'ors (ied to Korean 9ctressJs Suicide, N.\. 1imes, Oct. 2, 2008,
a/ai-aA-e at http:,,www.nytimes.com,2008,10,03,world,asia,03actress.htmlem, Choi Jin-sil,
Akpeuli Jukyeotda DongryoNetizen Kongbun |Negatie replies kill Choi[, SportsKhan, Oct. 2, 2008,
aailable at
http:,,sports.khan.co.kr,news,sk_index.htmlcat~iew&art_id~20081002222536&sec_id~562901.
23
See Lee 1ee Jong, Seoul Rushes Internet Bill, 1he Straits 1imes, Oct. 13, 2008, aailable at
http:,,www.straitstimes.com,Breaking2BNews,Asia,Story,S1IStory_28913.html, 1ong-lyung
Kim, More Limits Planned on Internet Anonymity, Korea 1imes, Oct. 3, 2008,
http:,,www.koreatimes.co.kr,www,news,biz,2008,10,123_32121.html.
24
See Jin-seo Cho, 2orta-s (urning 1nto Ru'or !i--sO, KORLA 1IMLS, May 14, 2008, a/ai-aA-e at
http:,,www.koreatimes.co.kr,www,news,biz,2008,05,123_24189.html.
25
See Michael litzpatrick, South Korean goernment looks to rein in the Net, N.\. 1imes, Sept. 5,
2008, aailable at http:,,www.nytimes.com,2008,09,05,business,worldbusiness,05iht-sknet.html.
26
1d"
Korean Netizen Lquality in the Shadow o Real Name Veriication
10
o enorcing notions o ciility through identity eriication.
2
A study concerned
with assessing the impact o the RNVS examined comments and replies on a
popular internet portal`s bulletin boards. 1he study ound that the number o total
comments decreased ater the introduction o the RNVS, but the proportional
share o deamatory comments did not decrease.
28
A Korea Communications Commission study
29
o the irst phase o the
introduction o the RNVS ound that there was a decrease in the rate o malign
internet posts
30
rom 15.8 to 13.9.
31
1his study proides the most aorable
results to date o the RNVS`s eectieness. 1he law has produced, at best,
marginally improed protection o priate reputation.
Initial Korean goernment analysis suggested that the RNVS has not had a
chilling eect` on Korean expression through the internet because its study
indicated that the number o internet posts on Korean internet portals has
remained consistent or increased since the System was introduced.
32
loweer, this
act does not establish a lack o chilling eect, as the introduction o the RNVS
may hae preented an increase in posting that may hae otherwise occurred.
33
lurthermore, statistics alone do not reeal the content o expression that is made
,or not made, through the internet, and it is possible that certain kinds o speech,
such as speech regarding sensitie but socially important subjects, has been
reduced.
34
2
\ong-suk lwang, 1nternet Kesipan Si-'0eongjee Daehan %ipanjeok Yeongu PCritica- 9pproach to the
1'p-e'entation of Rea-B,a'e s0ste' on %u--etin %oard of the 1nternetQ, 15 LONRONK\A SAl\L |PRLSS AND
SOC`\[ 9, 108 ,200,.
28
Jisuk \oo et al., 1nternet kaeshipan shi-'0eongjaeui h0okwae daehan si-jeung 0eongu; aehanjukAoninhwakinjae
sihenge ddaren kaeshipan nae keu-sseuki haengui 'it AiAangkwa 0okseu-ui A0eonhwareu- jungsi'euro P9n E'pirica-
9na-0sis of the Effect of Rea-Bna'e S0ste' on 1nternet %u--etin %oards; Focusing on How the Rea-Bna'e S0ste' and
.sersJ Characteristics 1nf-uence the .se of S-anderous Co''ents and Swear WordsQ, 20-21,
lengjeongnonchong Vol. 48,1,, Seoul Daehakgyo langukhengjeongyeonguso |Seoul National
Uniersity Korean Administration Institute[ ,2009,.
29
1his study ealuated the rate o malign reply, sought to gauge the chilling eect` o the law, or the
degree, i any, to which it discouraged use o the internet, and also attempted to measure the balloon
eect,` or the degree, i any, to which the law caused netizens to switch rom using large internet
portals subject to the RNVS to smaller ones not subject to the requirement.
Bangsongtongsinwiwonhoe |Korea Communications Commission[, aehanjeok Aoninhwakinjae
h0ogwaAunseokeu- wihan josa Aogoseo |9na-0sis of the Effect of #i'ited Rea- ,a'e 3erification[, October 200,
1-2. 1he study asserted that because the number o internet posts and the popularity o large internet
portals remained constant, no chilling eect or balloon eect was obserable. 1d" at 18-20.
30
1he term used to describe these messages in the study is Akseongdaetgeul,` translated here as
malign`. 1he study deines the term to include libel, sexual harassment, inasion o priacy, and
contempt. 1d" at 9.
31
1d.
32
1d" at 18.
33
1his possibility is supported by the act that, since the introduction o the RNVS, the number o
Korean internet users has signiicantly increased, while the number o posts on portals has been
stagnant. An alternatie explanation, howeer, may be that internet portals are becoming less aored
as sites o online expression, bypassed by some users in aor o alternaties like social networking
sites.
34
As I argue, infra, the RNVS impacts particular indiiduals and groups disproportionately, more
greatly deterring their expressie and associatie actiities and obstructing their opportunities or
more equal status in the society.
John M. Leitner
108
As a urther practical matter, the RNVS is susceptible to leakage` concerns.
Sites outside o the jurisdiction o the Korean goernment, such as sites based in
other nations, may proide an attractie alternatie to Korean users who are not
comortable with reealing their identity inormation online. A speciic illustration
o leakage has arisen within Korea`s own jurisdictional boundaries. 1he Google-
owned website \ou1ube permits registered users
35
to upload ideos that can then
be streamed by anyone who accesses the website. Registered users can also post
comments about a particular ideo, which are displayed below the ideo box on
the computer screen. Google maintains a Korea-based subsidiary that
administrates, amongst other properties, the Korean ersion o the \ou1ube site.
36
Google objected to the RNVS as compromising user anonymity in a manner
inconsistent with its ision o online reedom.
3
Google interpreted the law to
only apply to the Korean ersion o the \ou1ube site, and so it deactiated the
uploading and commenting eatures or indiiduals whose country preerence is set
to South Korea` in order to aoid a legal obligation to participate in the RNVS.
\hen \ou1ube is accessed rom a Korea-based IP address, the ront page
contains a message explaining the limited unctionality o the Korean page and
oering a one-click` conersion o the user`s preerence to the U.S.
\hile many instances o leakage` may be largely conjectural or at least
diicult to gauge, the case o \ou1ube proides a iid illustration o the practical
limitations o the RNVS. Migration to the use o Google products or a ariety o
online actiities, including blogging
38
and other methods o creating online
content, has become an increasingly popular method or indiiduals in Korea to
remain anonymous.
39
Gien the means aailable to a party who intends to deame
another online, including the use o someone else`s identiication number,
40
the
RNVS is particularly unlikely to preent the most premeditated and organized acts
o deamation.
41
35
\ou1ube requires users wishing to post content to proide certain personal inormation, but the
only eriied inormation is access to the email address that is proided.
36
See kr.youtube.com.
3
Google`s protection o user anonymity is not absolute. Google`s priacy policy states that it will
share inormation with third parties when |w[e hae a good aith belie that access, use, preseration
or disclosure o such inormation is reasonably necessary to ,a, satisy any applicable law, regulation,
legal process or enorceable goernmental request.` Google Priacy Center: Priacy Policy,
http:,,www.google.com,priacypolicy.html.
38
Google proides its Blogger` serice ,www.blogger.com, to Korean users. So ar, it has not
qualiied or inclusion as an internet portal within the scope o the RNVS due to an insuicient
number o daily users, but the site could be the source o uture conlict with the Korean goernment
i its popularity continues to grow.
39
See 1ong-hyun Kim, Goog-e 9/oids Regu-ationsE Korean 2orta-s ,ot so #uck0, KORLA 1IMLS, Apr. 2,
2009, a/ai-aA-e at
http:,,www.koreatimes.co.kr,www,news,tech,tech_iew.aspnewsIdx~43939&categoryCode~129
40
A google.com search conducted by the Korean Inormation Security Agency produced well oer a
hundred thousand Korean ID numbers that could be obtained or ree online. Goog-e E+posing
(housands of Korean 1D ,u'Aers, ClOSUNILBO, Sept. 22, 2008, a/ai-aA-e at
http:,,english.chosun.com,w21data,html,news,200809,200809220010.html.
41
Proocatie research already exists suggesting that instances o online deamation hae not been
curbed by the introduction o the RNVS. See \oo et al., supra note 28, at 20-21.
Korean Netizen Lquality in the Shadow o Real Name Veriication
109
IV6 Const(t-t(onal Co-&t C+allen)e
On January 25, 2010, three Korean citizens iled a constitutional complaint arguing
that the RNVS iolates seeral o their constitutional rights. 1he complainants
asserted that they desired to post expressions on a number o Korea-based
websites, including ohmynews.com and ytn.co.kr, but were unable to do so
because they were unwilling to comply with the RNVS. Oral arguments in the case
were heard by the Constitutional Court on July 8, 2010,
42
a decision is expected
imminently.
43
1he complainants argued
44
that their reedom o expression was iolated by
the RNVS, in particular their reedom to express anonymously.
45
1hey argued
urther that the law eectiely imposes prior restraint, a iolation o the
constitutional prohibition on censorship.
46
1he complainants claimed that the
RNVS iolates the least restrictie means principle
4
and improperly underalues
indiidual priate interest against the public interest.
48
As an alternatie theory, the
complainants asserted that the high risk o inormation leakage poses a threat to
priacy grae enough to threaten the constitutional right to priacy, deined in
Constitutional Court precedent as the right to reedom o a priate lie and the
reedom to control one`s own personal inormation.
49
linally, a theory o equality
was presented, alleging unequal treatment between those seeking to express
themseles on the internet and those utilizing any other medium, where no
equialent name eriication requirement operates.
1he respondent
50
argued that the RNVS requirement is an appropriate means
o achieing justiied goernment purposes. 1he purposes adanced included
promoting a more responsible and respectul online space or public expression
and stimulating more use o online bulletin boards by lessening the apprehension
42
See supra note 4.
43
1he decision in this case had not been made at the time this article was published, and pursuant to
Constitutional Court practice, the date o decision is not publicly announced in adance.
44
See id.
45
Under the Constitution o Korea ,the Constitution`,, citizens hae a right to reedom o speech,
but such speech shall not iolate the honor or rights o other persons or undermine public morals or
social ethics. leonbeop |Constitution[, art. 21 ,S. Korea,, trans-ated at
http:,,korea.assembly.go.kr,board,down.jspboarditemid~1000000155&dirname~,eng_data,1000
000155L1.pd.
46
1d" at art. 21,2,.
4
lor a discussion o the special status ,to utilize non-Korean parlance, heightened scrutiny`, that
reedom o expression ormally receies under Korean law, see 89lun-Ma165, 3 KCCR 518, 534
,Sept. 16, 1991,.
48
1he rights o citizens may be restricted by the goernment when such restrictions are necessary or
national security, maintenance o law and order, or or public welare. 1he Constitution asserts that
such restrictions cannot iolate the essential aspect` o the right in question. Constitution, supra
note 45, at art. 3.
49
See 99lun-Ba92, 2000lun-Ba39, 2000lun-Ma16 168 199 205 280 ,consolidated,, 13,2,
KCCR 14, 203 ,Aug. 30, 2001,.
50
In this dispute, the Korean Broadcasting Commission, a goernment agency within the Korea
Communications Commission, deended the law as the respondent.
John M. Leitner
110
o indiiduals that they will be treated in an illegal manner by other netizens.
51
1he
respondent asserted that, because the identity o the posting indiidual is not
displayed in public iew on the internet portal, her interest in anonymous
expression is not iolated, and the policy does not iolate either a least restrictie
means` or balance o priate and public interest` test.
52
1he deense argued that
the ormal requirements or legally proscribed prior censorship were not met in
this case. 1he act that posting is oluntary was argued by the deense to negate
the claim o a priacy right iolation.
1he decision o the Constitutional Court is expected shortly. 1he outcome o
the complaint can hardly be predicted, but in the ollowing discussion I oer
briely my own assessment o the merits o the case.
As a matter o legal principle, the plaintis should succeed on their claim o
reedom o expression. 1he RNVS requirement imposes an airmatie obligation
and, in many cases, an actual and chilling` burden on essentially all the members
o Korean cyber-society, many o whom are also rights-holding citizens o Korea.
In the ace o this limitation to indiidual rights, the state oers only general
notions o a state interest in an attractie and widely used cyberspace. On the
ormer consideration, o desirable internet culture, the state adances a speculatie
ision o promoting, i tenuously, certain characteristics o what the goernment
deines as preerred internet etiquette. I this goernment interest is accepted as a
legitimate basis or limiting indiidual rights, it is a broad and dangerous one. A
urther question o the nature o indiidual rights is also raised. Is the right` in
question that is to be limited a legal entitlement at all, i a roughly sketched notion
o attractie social behaior in a particular public orum is a legitimate basis or
limiting the right As or the latter consideration, o promoting the widespread use
o the internet as a orum or expression, the act that the RNVS has arguably
reduced the total quantity o online expression that would otherwise hae occurred
indicates that the law is inappropriate or adancing this public interest.
I argue below that the RNVS also iolates meaningul indiidual rights to
priacy and equality. 1he arguments o the complainants did not capture the ull
scope and applications o these two legal theories,
53
but a nuanced and
51
1he respondent analogized the case to a recent precedent, 2008lun-Ma324, 2009lun-Ba31
,consolidated,, 161 KCCG 595 ,leb. 25, 2010,, in which complainants challenged a law that requires
internet news sites` to eriy the names o indiiduals posting politically releant content during a
seeral week period preceding elections. 1he sites are required to delete posts where the author has
not eriied her real name. 1he Constitutional Court, ater considering claims that the law was oid
or agueness, constituted prior censorship, iolated the least restrictie means principle, and
compromised priacy, upheld the law.
52
Balancing interests under Korean law relects a distinctly utilitarian character. According to the
Korean Supreme Court, \hen the protection o a person`s reputation and the reedom o
expression are in conlict, how the two rights should be mediated depends on the comparison o
arious social interests by comparing the beneit o ree expression and the alues achieed through
the protection o personal rights.` 85Da-Kha29, Gong 1988.11.15. ,836,, 1393 ,October 11, 1988,.
53
1he complainants` equality theory is particularly ormalistic and subject to a powerul rebuttal. 1he
state may contend that, in the absence o the RNVS, online speakers conceal themseles behind a eil
o anonymity that is generally not aailable to oline speakers, where identity concealment is oten
Korean Netizen Lquality in the Shadow o Real Name Veriication
111
contextualized consideration o equality and priacy leads to the conclusion that
the RNVS cannot be tolerated in a constitutional democracy that is protectie o
these indiidual rights. I begin with a general discussion o priacy, an oten
nebulous concept in many legal systems that can and should be seen to operate
actiely to promote the human dignity` that the Constitution purports to protect
absolutely.
54
I then synthesize the autonomy` notion o priacy with the right o
equality. Understood to go beyond acial neutrality and to seek deeper airness on
the leel o social status, the indiidual right o equality orms a powerul basis or
a social duty to deend the equal rights potentials o a ree and open cyberspace.
55
V6 Refle't(on on P&(1a'. an5 t+e R()+ts of DNet(AensE
1he concept o priacy` is by its nature a arying and indeinite one, perpetually a
moing target in philosophical and legal analysis. 1o clariy the meaning o this
concept as it pertains to the System, seeral general ariables should be isolated
and discussed.
56
lirstly, is a iolation o priacy` conditioned on particular kinds
o airmatie actions external to the indiidual, such as the acquisition,
dissemination, and compilation o priate data by third parties Or, alternatiely,
should priacy be understood rom the subjectie perspectie o the indiidual,
such as a person`s perception o whether her or she exists in a priate` sphere
with certain priacy-related characteristics, such as reedom rom obseration or
intererence, reedom o choice and action, or a sense o well-being 1hese two
perspecties are ineitably closely interrelated. lor instance, a lapse o data
priacy` ,such as non-consensual dissemination o a person`s health inormation,
o which the subject is aware might in many cases hae as one result an impact on
the aected indiidual`s personal iew o his or her priacy. loweer, in principle,
data priacy is compromised independently o the indiidual`s knowledge or
particular concern. In the latter sense o priacy as personal perception-based,
priacy may be compromised in a ariety o settings, which may not be as clearly
speciiable or linked to identiied external triggers as cases o wrongul data
dissemination.
diicult or simply not possible. A widely accessible expressie orum with almost uniersal
anonymity ,barring e+ post identiication, is a unique result o the rise o cyberspace public discourse,
and a particularized goernment policy may be either a rational distinction in treatment o online and
oline speakers or, more dramatically, an eectie rectiication o a preiously unequal`
arrangement.
54
Under the Constitution, All citizens shall be assured o human dignity and worth.`
Constitution, supra note 45, at art. 10.
55
\hile rights are generally discussed in terms o prohibition o goernment actions that oend
those rights by obstructing the legal exercise o an indiidual entitlement, it may be argued that the
state has a duty to act airmatiely to promote a state o greater indication o indiidual rights. 1his
possibility is reerenced in Lquality,Autonomy Approach`, infra, although the approach presented
in this article is not conditioned upon acceptance o a theory o positie rights.
56
I proide a synopsis o existing Korean priacy law, infra, but my objectie here is to discuss
general parameters or thinking about priacy.
John M. Leitner
112
As a second consideration, assume that priacy is understood at least in part
rom the standpoint o the indiidual`s personal conception and experience. \hat
standard or personal priacy might be adopted One deinition o priacy, or an
element o the deinition, is priacy as concealment o certain aspects o lie rom
uninited members o the public.
5
1his notion is oten associated with priacy as
rooted in place`, such as the priacy right identiied in certain American Supreme
Court precedents as emanating` rom the Bill o Rights.
58
1he idea, or instance,
that a personal home is sacred, and that outside intrusion, including by the
goernment, must be preented or minimized,
59
is the archetypical notion o
priacy as place-based and concealment-based. loweer, priacy can potentially
be ar more complicated. \hy are certain personal decisions, such as the decision
o a woman to hae an abortion procedure
60
or the decision o a person to engage
in a homosexual relationship,
61
categorized in American law as relating to a
priacy right`
62
In such cases, the analysis does not depend on whether the
actiities related to these decisions can be concealed in a priate place, but rather
whether the decision itsel, een i obserable and potentially publicly known, is by
its nature a priate` one that a digniied person must be ree to make or hersel.
63
1his notion o priacy is not based primarily on a particular priate place,
64
but
rather on aspects o human lie that must be controlled by the indiidual through a
priate process independent o goernment proscription or coercion. Such a
priacy right is oten constructed out o the notion o liberty`,
65
as I suggest infra,
5
1his may seem similar to the preious discussion o inormation obtained and disseminated by
third parties. lere, howeer, the key is not the acts external to the indiidual, but rather the eeling
and perception o reedom rom obseration.
58
See Griswold . Connecticut, 381 U.S. 49, 484 ,1965,. See a-so Poe . Ullman, 36 U.S. 49, 516-
522 ,1961, ,Justice larlan, dissenting,.
59
Co'pare Constitution, supra note 45, at art. 16 ,All citizens shall be ree rom intrusion into their
place o residence`, with U.S. Const. amend. IV ,1he right o the people to be secure in their
persons, houses, papers, and eects, against unreasonable searches and seizures, shall not be
iolated.`,.
60
See Roe . \ade, 410 U.S. 113 ,193,, Planned Parenthood o Southeastern Pennsylania . Casey,
505 U.S. 833 ,1992,.
61
See Lawrence 1exas, 539 U.S. 558 ,2003,.
62
I illustrate notions o priacy using examples rom American law to illustrate, within an inter-
jurisdictional context, the complexities o priacy` as an identiied and substantie legal right.
63
1he assertion o this constitutional right to priacy has long been controersial. lor just one
amous illustration, see John lart Lly, (he Wages of Cr0ing Wo-fE 82 \ALL L. J. 920 ,193,.
64
loweer, in Lawrence, the Supreme Court did reerence the notion o the home as the most
priate o places`. Lawrence, supra note 61, at 56.
65
In American law, it is asserted in precedent that the due process clause o the 14
th
Amendment
protects liberty that encompasses personal control oer certain intimate decisions. See Casey, supra
note 60, at 851,stating Our law aords constitutional protection to personal decisions relating to
marriage, procreation, contraception, amily relationships, child rearing, and education. 1hese
matters, inoling the most intimate and personal choices a person may make in a lietime, choices
central to personal dignity and autonomy, are central to the liberty protected by the lourteenth
Amendment. At the heart o liberty is the right to deine one`s own concept o existence, o
meaning, o the unierse, and o the mystery o human lie. Belies about these matters could not
deine the attributes o personhood were they ormed under compulsion o the State.`,.
Korean Netizen Lquality in the Shadow o Real Name Veriication
113
the notion o autonomy`, as related to the broader principle o equality, is more
useul in clariying the nature o this priacy right.
In light o the social alue o ree expression, the concept o priacy` in the
online space becomes more complicated. Proponents o the RNVS correctly
assert that indiiduals hae an interest in the protection o their priate personal
rights`,
66
such as reputation and reedom rom deamation.
6
loweer,
indiiduals also hae an interest in priacy in a dierent sense, that is, in
maintaining an anonymous proile online or the purposes o utilizing legitimate
expressie and associatie opportunities while being insulated rom the possibility
o stigma or suppression.
68
\hile some hae questioned the alue o anonymous
expression, examples o the alue o anonymity include the sharing o sensitie
inormation regarding personal health issues, matters o personal and sexual
identity,
69
and politically controersial topics.
1he Constitution explicitly protects the reputation o Korean indiiduals, but
reputation concerns weigh on both sides o this debate. 1he right o reputation
surely contains the interest o the indiidual to be ree rom deamation, contempt,
or other malign` statements impugning her character. On the other hand, this
reputation right should also be understood to include personal inluence oer the
inputs o reputation. Integral to that inluence is power oer the public identity
that the indiidual creates in both the oline and online worlds.
Some may ind the assertion that the RNVS iolates an indiidual right to
priacy to be a specious one. 1aking the notion o priacy as data dissemination-
based, where the right or interest in question is iolated when data is shared
impermissibly, the RNVS appears to present no immediate iolation o a priacy
right`.
0
Priacy as personal and place-based may also seem little-compromised by
the RNVS: does one hae an expectation o priacy in cyberspace, and does the
reelation o identity represent a iolation o any priacy right that may exist
66
SeeE e"g"E \an Choung, C0Aerpokr0eokui 2ihaesi-taewa DaeeungAangan |9 #ega- Stud0 of C0Aer 3io-ence[, 13
PIlALJAlAK\LONGU |KORLAN J. Ol VIC1IMOLOG\[ 329, 34-48 ,2005,. Proessor Choung
describes in-gyeok kwon`, translated here as personal rights`, as requiring the protection proided
by such policies as the RNVS.
6
1his is made explicitly clear in the text o the Constitution, which states: Neither speech nor the
press shall iolate the honor or rights o other persons nor undermine public morals or social ethics.`
Constitution, supra note 45, at art. 21,4,.
68
As stated by the United States Supreme Court, Persecuted groups and sects rom time to time
throughout history hae been able to criticize the oppressie practices and laws either anonymously
or not at all... It is plain that anonymity has sometimes been assumed or the most constructie
purposes.` 1alley . Caliornia, 362 U.S. 60, 65-66 ,1960,.
69
See Jisuk \oo and Jae-lyup Lee, 1he Limitations o Inormation Priacy` in the Network
Lnironment, U. PI11. J. 1LCl. L. & POL`\ 2, 28-29 ,2006, ,citing Daid J. Phillips, Negotiating the
Digital Closet: Online Pseudonyms and the Politics o Sexual Identity, 5 INlO. COMM. & SOC`\ 406
,2002,,.
0
As a practical matter, the security o gathered identity inormation has been questioned, proiding
an opportunity or complainants to challenge the RNVS on a data dissemination theory. SeeE e"g"E Kim
Jung \an, #eaked 2ersona- 1nfor'ation 2re/a-entE Rea- ,a'e 3erification Shou-d Ae Repea-ed |KaeinjungAo
Yoochu- Wonh0ung 1nternet Shi-'0ungjae 2aejidue0a[, Boan News, September , 2010, a/ai-aA-e at
http:,,www.boannews.com,media,iew.aspidx~2266&kind~1.
John M. Leitner
114
online loweer, i priacy is understood to encompass personal decisions and
independent lie behaiors, the RNVS becomes more troubling as a matter o legal
principle.
1. Priacy and the Nature o Interactions
Online actiities potentially and actually ill substantial roles in personal decision-
making and the interaction between indiiduals and arious communities within
society. 1he interactie and geographic barrier-deiant nature o the internet
acilitates the deelopment o intimate and essential lie experiences in cyberspace.
1he aailability o online anonymity, and the related potential or construction and
reconstruction o personal identity, acilitates meaningul additional opportunities
or sel-realization online. It may be tempting to ocus on negatie applications o
online anonymity, but I would like to suggest two categories o cases o
indiidually ital ,and socially aluable, social actiities that are centrally or
exclusiely conducted on the internet and are substantially bolstered by the
aailability o anonymity.
A. Actiities Signiicantly lacilitated by the Online Medium
Various actiities that are possible and occur on some leel in traditional physical
orums may be signiicantly acilitated and expanded by the aailability o online
interaction. lor example, participation in organizations or less ormal social
settings inoling the exchange o sensitie and personal inormation, which may
reeal priate details about an indiidual, may be much enhanced by online
collaboration. Indiiduals seeking to discuss health conditions, religious and other
belie-based ainities, or controersial ,i legal, liestyle choices, may ind ar
greater opportunities or meaningul interaction in cyberspace.
B. Actiities Only Possible Online
In some o the aboe cases, the actiity in question may only be likely to occur
online, due to physical-world obstacles. loweer, it is at least theoretically possible
or the actiity to happen on some scale in the physical world, and undamentally
these are endeaors o the sort that may happen and hae happened in oline lie.
Distinguishable are those orms o interaction and engagement that exist and are
understood and deined in terms o the online space. 1he essence, and not just
orm and enue, o the actiity is deined by its online character. 1he most
dramatic illustration may be the idea o a second lie`, in which an indiidual
constructs an online identity that may or may not closely resemble the indiidual`s
identity in the physical world, in the orm o an online aatar.
Korean Netizen Lquality in the Shadow o Real Name Veriication
115
My contention is not that any particular personal liestyle choice related to
public identity is necessarily and unambiguously good.
1
Rather, my contention is
that the discretion to space-shit` actiities online or, more dramatically, to create
and cultiate cyber-personae and engage in other noel online pursuits, is central
to a ree and independent lie in a modern, deeloped society. Beginning with the
underlying principle that indiiduals are ree to pursue an independent lie and that
priacy contains the reedom to make intimate liestyle and persona-deelopment
choices, the contextualized application o this principle in a technologically
adanced society must include a robust conception o online reedom.
In cyberspace, the threshold question o existence is, does an indiidual hae
|high-speed[ internet access In a society employing a mandatory system o real
name eriication, the urther question must be posed: does an indiidual hae the
means to directly contribute to and interact with the online community 1he
common characteristic o the internet actiities described aboe is the actiely
participatory nature o the indiidual`s engagement online. 1o limit a particular
indiidual to the status o passie obserer and recipient o online culture, and not
a semiotic collaborator, is arguably to deny that person existence in cyberspace`.
At a minimum, the indiidual has a prooundly unequal and depried status in
cyberspace due to lack o capacity to engage. 1he RNVS depries some indiiduals
o any opportunity to participate in certain channels online, and poses to all others
the choice between unmasking their identity to the goernment or else not
participating in those channels. All indiiduals ace potential limitation o their
reedom or deelopment o online identities, and the impact is greatest or those
indiiduals who are already marginalized and stigmatized in the oline world ,and
who would most directly beneit rom the liberating status o online anonymity,.
2. Priacy and Lmpowering Personal lreedoms in Korea
Priacy` may be identiied as an independent and suicient basis or a rights-
based claim under Korean law, but the meaning and substance o priacy`
concerns as a rights claim are imbued by other legal principles. In Korea, priacy
is interpreted to contain three rights-related components: the protection o secret
priate inormation rom being reealed ,priate acts and acts likely to cause
social misunderstandings,, the protection o reedom o priacy ,a zone o priacy
rom which the outside world can be excluded,, and a right to control the manner
in which personal inormation is disseminated.
2
Construed this way, Korean
1
A single answer to the question o to what ends discretion will be channeled is neer possible.
Some online personae, as cultiated and adanced online, are bullies or thiees. 1his obseration
does not seem, on its ace, to distinguish the experience o cyberspace rom the experience o oline
communities in the physical world.
2
See supra note 49. 1he irst two conceptions o priacy are understood as passie` ,where the
indiidual can exercise the reedom to presere the status quo o priate inormation and places,,
while the third is described as actie` ,where the indiidual can control or inluence particular
channels and manners o inormation distribution that are being engaged,.
John M. Leitner
116
priacy is rooted in priacy o place and secrecy o inormation. Both notions
arguably lack a clear connection to the priacy o interacting in cyberspace in a
manner that inoles the utilization o public and shared space and the potential
oluntary reelation o at least some orms o personal inormation. Understood
in this light, the constitutional right to priacy as place-protectie proides little or
no legal succor to those objecting to the RNVS, the data-dissemination dimension
o the priacy right may be implicated, but the arguable remedy or the threat o
data security breaches is ex post litigation to address liability and damages, not an
ex ante inding o a constitutional iolation. Might other rights-based objections
be aailable I oer as a speciic and relatiely straightorward example concerns
related to reedom o expression, beore briely sketching a broader equality
ramework or saeguarding online reedoms, including netizen anonymity.
A. Lxpression
1he specter o suppression o expression exists in all societies at all times, leading
to the insight that anonymous expression may play a ital role in sustaining and
nourishing social discourse when application o state coercion might otherwise be
stiling. 1his is particularly pressing, and may be most probable to occur, in
matters o political and social conlict-related expression. A recent case in Korea
proides a poignant example. Dae-sung Park was a widely read blogger on
inancial issues who posted his writings under the internet alias Minera`.
3
Mr.
Park, whose Minera` identity gained ame ater Park pseudonymously predicted
the demise o the bank Lehman Brothers, was arrested on January , 2009.
4
le
was accused o posting online speculation regarding Korean monetary policy.
5
1he prosecution alleged that these speculations were alse and that Mr. Park spread
the rumor with the intent to damage public interest, in iolation o the E-ectronic
Co''unication Funda'enta- #aw.
6
le was acquitted by the Seoul Central District
Court on April 20, 2009.
S" Korean Court Finds R!iner/aS ,ot Gui-t0, KORLA 1IMLS, Apr. 20, 2009, a/ai-aA-e at
http:,,www.koreatimes.co.kr,www,news,nation,2009,04,113_4346.html.
8
2008lun-Ba15, 2009lun-Ba88 ,consolidated, ,Dec. 28, 2010,, a/ai-aA-e at http:,,www.
ccourt.go.kr,home,iew2,xml_content_iew02.jspseq~10&cname~&eentNo~20081
5&publag~2&eentnum~2549&sch_keyword~&cid~01010002.
Korean Netizen Lquality in the Shadow o Real Name Veriication
11
intent element o the crime, which is based upon a purpose o harming the public
interest, is too ague. 1he intent element ailed to proide the legal clarity
necessary or a restriction on reedom o expression and generally iolated the legal
principle o nulla poena sine lege.
9
\hile the decision is, on its ace, an
adancement o the protection o indiidual rights, the holding itsel is narrow. It
is unconstitutionally ague to ask courts to diine intent by a deendant to damage
public interest, but this legal deect has limited applications in other cases,
including the challenge to the RNVS. In act, it seems entirely possible that the
National Assembly could modiy the language o the statute to satisy the
agueness objection, potentially reinstating a similar proscription on expression.
Lxpression-related considerations may be the most obious diiculties raised
by the RNVS, but their signiicance is heightened and clariied in the context o
other, and I argue more oundational, legal rights. I propose as an alternatie a
rights ramework o equality,autonomy as a critique o the RNVS. In this context,
respecting the right o anonymous online expression` also respects, on an
essential leel, the basic equality and autonomy o the members o the society.
B. Lquality,Autonomy Approach
At its most sweeping and ambitious, cyberspace creates the potential or
dramatically improed degrees o equality amongst indiiduals. 1aking or a
moment the notion o equality as equal access to and sharing o a beneit, a orm
o equal treatment`, internet high-speed access ia an uncensored network
proides ,in general and thus ar, equal online access to each end user. Based on
the low barriers to content contribution through arious online channels, equal
access also means equal opportunities to interact with and contribute to the body
o publicly aailable shared content. Surely, there is no guarantee that any
particular content will receie equal exposure to an audience or equal readership or
iewership. loweer, the act remains that the channel o expression is open, a
perpetual soapbox in the public square, whether or not anyone is listening to the
particular speaker.
Access to high-speed internet is a central assumption o the iew o cyberspace
as a resource and community o equal accommodation. 1he assumption is
certainly iolated in eery society, as ubiquitous network access does not exist in
any particular society ,Korea is one o the nations that comes closest
80
,. Network
access introduces a crude and general diision ,between the class o indiiduals
with access to high-speed internet and those without access, with a distinctly socio-
economic dynamic. \ithin the class o indiiduals that does hae access, howeer,
9
1his maxim roughly translates as no penalty without law`.
80
Some studies hae ound Korea to hae the world`s highest internet access rate. See S" Korea (ops
8ECD in 1nternet 2enetration, KORLA 1IMLS, June 1, 2008, a/ai-aA-e at
http:,,www.koreatimes.co.kr,www,news,biz,2008,06,123_2600.html, OpenNet Initiatie: South
Korea, http:,,opennet.net,research,proiles,south-korea ,May 10, 200,, Rob lrieden, #essons fro'
%roadAand De/e-op'ent in CanadaE apanE Korea and the .nited States, 29 1elecomm. Pol`y 595, 59 ,2005,.
John M. Leitner
118
cyberspace represents a sphere o existence ree rom ,or at least reer rom, socio-
economic inequalities and social constraints. Lquality is oten understood in terms
o ormally equal treatment rom the goernment, with a special ocus on equality
o basic political participation.
81
1he goernment cannot engage in actions that
impermissibly exclude citizens rom the political process.
1his conception o equality, ocused on political participation and perhaps the
rejection o many orms o acial statutory or regulatory distinctions based on
demographic group, is an inadequate elaboration o the concept o equality in a
modern, deeloped democracy. It should not be accepted, and a more robust
ision o equality should be pursued.
82
1he RNVS presents a particularly stark
example o obstructing an opportunity or greater social equality. 1he equality
captured by cyberspace is, by its nature, potentially one o equal access to the tools
that can achiee uniquely personality-airming and liestyle-liberating potentials.
1he opportunity exists or the aoidance or mitigation o stigmas, attaching to
indiiduals or groups, because o an exemption rom those social constructs that
impose stigmas and burdens. In the case o Korea, or instance, where indiiduals
o a non-heterosexual orientation requently ind it diicult or impossible to reeal
their orientation,
83
the anonymous and geographic obstacle-negating characteristics
o cyberspace may proe ital to sel-expression, sharing o experiences, and the
elaboration o personal identity.
Another brie example may be illustratie. Korea imposes a ariety o express
restrictions on political expression, as codiied in such statutes as the National
Security Act.
84
Indiiduals who engage in purely abstract political expression may
risk prosecution, een at the present time.
85
1his issue may be understood in terms
o a debate oer reedom o expression, which in Korea is conducted according to
the weighing o indiidual liberty interests against social stability and security
interests, as discussed supra. But might this case present a question o equality
Does the society treat its citizens as equal, not just in terms o neutral application
o laws, but with an awareness o the disparate impact o the laws on dierently
81
Len conining one`s ocus to equality o political participation, the RNVS is problematic in its
impact on indiidual expression regarding political and social issues.
82
1he Constitutional Court recognizes a theoretical hierarchy` o rights, determined according to
the necessity and importance o the right in question in adancing human dignity. According to the
Court, lreedom o expression is the oundation or the existence and deelopment o a democratic
country, and thereore one o the characteristics o modern constitution is that this reedom enjoys a
superior status`.` 89lun-Ma165, 3 KCCR 518, 534 ,Sept. 16, 1991,.
83
lor example, at Seoul National Uniersity, the national uniersity o Korea, undergraduate students
inoled in a student gay-lesbian-bisexual journal work rom an undisclosed oice location and write
pseudonymously.
84
National Security Act, supra note 6.
85
In one recent example, a sociology proessor was prosecuted or his comment that America was to
blame or joining the Korean \ar and preenting North Korea rom uniting the peninsula under a
single communist regime. Jung Lunjung, 3io-ation of ,ationa- Securit0 #aw A0 2rofessor Kang ungkuE
Sentenced to > 0ears of 1'prison'ent and C 0ears of 2roAation, |KukAoAeoA .iAan Kang ung Ku k0osu
jing0oek>n0unE jipheng0u0eCn0un seongo[, lLRALD K\UNGJAL, May 26, 2006, a/ai-aA-e at
http:,,news.naer.com,main,read.nhnmode~LSD&mid~sec&sid1~102&oid~016&aid~00002098
9.
Korean Netizen Lquality in the Shadow o Real Name Veriication
119
situated indiiduals Does the law accord to each citizen an equal degree o
respect and, to utilize the language o the Constitutional Court, dignity` 1he
goernment has an obligation not to obstruct the equality o citizens through the
creation and enorcement o policies that iolate the principle that indiiduals be
treated as equals.
86
1he ability to articulate at least abstract philosophical iews is
not only a question o expression, but also o the indiidual`s entitlement to be
regarded as politically and socially equal to other members o the society. 1he
inequality underpinning this legislation is the suppression and marginalization o
members o the society based upon their belies and their desire, in the absence o
criminal sanction, to deelop their public persona in the context o those belies.
1he logistically simple but, practically speaking, presently impossible
8
rectiication or this particular injustice is the repeal o at least certain proisions o
the National Security Act. Lxpanded and continuous public debate o this law,
and potentially urther public impact lawsuit adjudication, is in order. In the
meantime, a principally anonymous cyberspace acilitates a more open orum or
discourse that does, inasmuch as it eludes suppressie police action, adance a de
facto situation o equal respect o indiiduals with arying philosophical and social
iews.
I one considers seriously the notion that priacy`, or any other legal right,
contains within it an entitlement to ormulate personal decisions that operate
within a sphere o priacy that is psychological and not necessarily physical,
88
then
the state has a duty to respect the exercise o that autonomy, whether it is in the
priacy o one`s own home`, another more obserable physical locale, or in
cyberspace. Indiidual reedom o certain indiiduals to pursue a lie that is more
equal to those with less stigmatized or marginalized procliities or opinions is
obstructed by the RNVS, which poses heightened threats o identity reelation and
arious orms o legal and social repercussions. \hether or not such
repercussions requently occur, the mere existence o the requirement to reeal
one`s identity chills` the expressions and actiities urgently needed to mitigate the
marginalization o society`s most ulnerable members.
86
1his articulation o a negatie right o equality, that is, a right to be ree rom goernment action
that causes or exacerbates one`s status as unequal, could be made more robust by including, explicitly,
a positie equality right. In the latter case, the goernment would bear airmatie obligations to
actiely promote greater equality within the society. I conine this discussion to negatie right
applications ,speciically, reedom rom goernment coercion to reeal one`s identity online,, but the
idea o positie rights is certainly proocatie.
8
1he specter o military conlict with North Korea proides a rationale or legislators supportie o
the law`s police power dimensions to inoke to justiy its perpetuation. lor a urther discussion o
the National Security Act, see Leitner, supra note 6.
88
lor a discussion o diering conceptions o liberty, where liberty as independence` is
distinguished rom a notion o license, see Dworkin, supra note 9, at 262-265. Liberty as
independence may be a useul rame o reerence or construing the nature and scope o autonomous
personal control.
John M. Leitner
120
VI6 Con'l-s(on
1he general eect o the RNVS has been to recast the Korean experience o
cyberspace as relatiely less priate, less expressie, and less equal. All three o
these terms may be subject to arying interpretations, but I hae intended to
coney the ollowing meanings:
,1, Priate: Korean internet users wishing to actiely utilize popular
channels o communication and interaction hae signiicant
obstacles to ,legal, concealment o their identities. Indiiduals are
obstructed rom engaging with online communities, a ailure to
respect priacy as it relates to personal choices about identity and
independent liestyle.
,2, Lxpressie: the absolute quantity o expression is reduced, including
expression that is not illegal or otherwise eligible or curtailment
under existing Korean law. Lxpression that may be o questionable
legal status under existing laws, but with signiicant substantie
political and social content, is particularly likely to be limited. 1his is
most true or political and social expression relating to ideological
and social minorities in Korean society.
,3, Lqual: cyberspace`s central characteristic as a place o equal access
and equal participation is diminished. Online actiities also lose
their potentially unique character as aenues or achieing actual
equality o treatment, status, and dignity amongst indiiduals,
especially or those most likely to be stigmatized outside o an
anonymous cyberspace context.
It remains to be seen whether the Constitutional Court will conclude that the
System, as currently operated, iolates constitutional requirements and as such
must be modiied or abolished. I argue that the System should be seen to iolate
indiidual rights principles identiied in the Constitution, and should be struck
down as unconstitutional. Other societies who alue and seek to protect broad
and technology-adaptie conceptions o equality, priacy, autonomy, and ree
expression should careully consider the impact that such policies as name
eriication would ultimately hae on indiidual rights, understood in the context
o the unique potentials and railties o cyberspace.
An o1e&1(e/ of foo5 safet. &e)-lat(on (n !o&ea
0 P&e'a-t(ona&. P&(n'(8le 1s6 Cost04enef(t Anal.s(s 0
Seong Wook Heo
I6 Int&o5-'t(on
I would like to gie a presentation on the issue o ood saety regulation in Korea
in the order o next two sequences.
1he irst one is an oeriew o the lood Saety Act o 2008 which has been
enacted recently in Korea, and the other one is some short discussion about the
relationship between precautionary principle and Cost-Beneit Analysis in ood
saety regulation.
II6 T+e ,oo5 Safet. A't of 2CCF
1. Background
\hile getting through with the incidents o mad cow disease and melamine
additie, Korean people got more interested in the issue o ood saety. And these
increased interests o the public in ood saety lead the Congress to enact the new
lood Saety Act o 2008 ,hereinater the lSA`, which was promulgated in June
13
th
2008 haing its eect rom December 2008.
Beore the enactment o the lSA, the Korean ood saety regulatory system
was under the criticism o being incomplete and ineicient, in the sense that the
Seong \ook leo
122
releant rules and regulation on ood saety was separately diided according to the
types o ood and to the leel o distribution, and each dierent administratie
agency was in charge o maintaining ood saety.
1
2. Oeriew
A. 1he lood Saety Policy Committee ,Article -14,
1o cure these incompleteness and ineiciency in ood saety regulation, the lSA
establishes the lood Saety Policy Committee ,hereinater the lSPC`, which is to
comprehensiely coordinate the ood saety policy o goernment.
1he lSPC belongs to the Oice o Premier and is headed by the Prime
Minister as a chairperson. 1he lSPC is composed o about 20 members who are
considered to hae specialized knowledge and experience about ood saety
including the Minister o Strategy and linance, the Minister o Lducation, Science
and 1echnology, the Minister o Justice, the Minister o lood Agriculture, lorestry
and lisheries, the Minister or lealth, \elare and lamily Aairs, the Minister o
Lnironment, the chie o the Oice o lood and Drug Saety, and ciilian
specialists, etc.
1he lSPC does the reiew and coordination o ollowing issues.
,1, Basic planning o ood saety
,2, Major policies on ood saety
,3, Rules and regulations on ood saety
,4, lazard analysis on ood saety
,5, Countermeasures against serious ood saety accident
1hrough the role and unction o lSPC, it is expected that the ood saety policy
be executed in a more systematic and consistent way.
B. 1he Planning o lood Saety Administration ,Article 6,
1he Prime Minister has to deise the master plan or ood saety under the
deliberation o lSPC eery three years.
1he Ministers and the goernors o local goernment hae to deise and
enorce ood saety administratie plan based on the master plan aboe.
1hrough these planning and ealuation o the plan enorcement, it is expected
that more systematic deising and enorcement o ood saety policy be possible
and through this oerall ood saety be improed.
1
It was reported that Korea had more than 230 legislations related to ood saety in 2004, and the
regulatory authority on ood saety was dispersed to many dierent administratie agencies.
An Oeriew o lood Saety Regulation in Korea
123
C. Building up the emergency measures system and a ollow-up surey
,Article 15 - 19,
1o cope with the adent o new style hazardous ood addities, it is necessary to
build up the central goernment-leel emergency measures system.
\hen the central or local goernment inds that there happened or probably
would happen serious risk to the health o people, it should deise the emergency
measures plan and enorce it.
1he Ministers can prohibit the producing and selling o the hazardous ood,
een beore the scientiic eidence o the hazardousness has not been proided,
and should do the ollow-up surey o the source o hazardousness.
By these emergency measures, it is expected that people`s uneasiness about the
ood saety can be calmed at the earlier stage.
D. 1he mandatory risk assessment ,Article 20,
1he Ministers hae to do the mandatory ex-ante risk assessment when making or
reising the rules and regulations on ood saety.
1he Ministers hae to enorce the lACCP,lazard Analysis Critical Control
Point, regulatory system.
By these scientiic administering o ood saety, it is expected that the
eiciency o ood saety administration and public conidence in ood saety can
be heightened.
L. 1he inormation disclosure on ood saety ,Article 24,
1he goernment has to build up and operate the comprehensie ood saety
inormation managing system.
1he Ministers hae to disclose the related inormation to the producers and
consumers when making a ood saety policy.
1he Ministers can open the inormation o the producers and their products
when they iolate ood saety rules and regulations.
l. 1he participation o consumers into the ood saety administration ,Article 28,
1he Ministers hae to make systematic channels through which consumers can
participate into the making o ood saety rules and regulations.
3. Summary
By integrating the dispersed authorities and regulations on ood saety to one
authority and one ramework legislation and reinorcing the policy measures to
ight against hazardous ood, the lSA is expected to build up the more
sophisticated and powerul administratie system in ood saety.
Seong \ook leo
124
loweer, the story may not end as such a happy ending as many Aesop`s
lables did.
\e need to talk more about ood saety regulation in the perspectie o
precautionary principle and cost-beneit analysis.
III6 P&e'a-t(ona&. P&(n'(8le an5 Cost04enef(t Anal.s(s (n foo5
safet. &e)-lat(ons
1. Introduction
1he ood saety regulation issue is about the problem o Risk in modern society.
1he administratie measure against Risk has the choice under uncertainty as its
essence.
Compared to other traditional issues in administratie law, the modern
administratie law issues are more complicated in the sense that they hae to deal
with the problem o Risk, or example, hazardous ood, swine lu, mad cow
disease, global warming, and the war against terror.
It is hard to know how hazardous some new ood addities, or example,
melamine, ex-ante. loweer, still under such uncertainty, goernments are
required to do something about the melamine, when the public people are terriied
by the possible harm rom eating melamine to themseles or to their children. But
it is not easy to ind the appropriate policy measures in such situations.
It seems to me that the lSA can possibly be understood as requiring the
goernment to take the Precautionary Principle posture in ood saety.
But, the ood saety issue is not as simple as that.
2. 1he Precautionary Principle
A. Background
In such a Risk situation, the goernments are commonly required to take policy
measures in accordance with the Precautionary Principle, which requires that the
goernment should do whateer possible measures to preent the realization o
the Risk into real harm.
loweer, it is not so easy to understand what exactly goernment should do
to ollow up the precautionary principle. Because, in modern society there are so
many dierent kinds o Risks around us, and it is not possible to take
precautionary measures to all those Risks. Actually, Risks are all around us.
An Oeriew o lood Saety Regulation in Korea
125
B. 1he concept o the Precautionary Principle
It is not certain what exactly does the Precautionary Principle mean or require.
Actually, we can ind more than twenty dierent kinds o deinition o the
Precautionary Principle which are not compatible with each other.
\e can arrange those dierent deinitions in a continuum rom a weak ersion
to a strong ersion.
2
1he most cautions and weak ersion o the deinition might be like this one, as
declared in 1992 Rio Declaration.
A lack o decisie eidence o harm should not be a ground or reusing to
regulate.` or \here there are threats o serious or irreersible damage, lack o
ull scientiic certainty shall not be used as a reason or postponing cost-eectie
measures to preent enironmental degradation.
A stronger ersion o Precautionary Principle is like this. 1he Precautionary
Principle means that action should be taken to correct a problem as soon as there
is eidence that harm may occur, not ater the harm has already occurred.`
In a more strong ersion, it is said that the Precautionary Principle mandates
that when there is a risk o signiicant health or enironmental damage to others or
to uture generations, and when there is scientiic uncertainty as to the nature o
that damage or the likelihood o the risk, then decisions should be made so as to
preent such actiities rom being conducted unless and until scientiic eidence
shows that the damage will not occur.`
C. Precaution and Paralysis
1he Precautionary Principle is generally understood as a good meaning to the
public, because it gies the impression that the goernment can do exert that kind
o superpower i required.
loweer, such understanding can be quite misleading.
In the real world, we are aced with ery dierse kinds o Risks in eery aspect
o our lies. Basically, it is impossible or any super-power authority to take
precautionary measures to all the Risks around us, because it takes some portion o
resources we hae, and the resources are inite.
So, i the goernment is required to take the posture o the Precautionary
Principle to whateer kinds o Risks, it will inally be able to do nothing.
I a goernment exerts its best eort to ight against the mad cow disease to
the leel o perect precaution,i it is possible anyhow,, it will let the people be
aced with higher leel o Risks in other ields, or example, Risk to malnutrition,
or Risk to Global \arming, etc.
2
Cass R. Sunstein, #aws of Fear; %e0ond the 2recautionar0 2rincip-e, Cambridge Uniersity Press, 2005
,hereinater, Laws o lear`,, 18-19.
Seong \ook leo
126
1he goernment ineitably has to make some ordering o Risks, and hae to
decide which Risk to be taken seriously than others.
But the Precautionary Principle, especially the stronger ersion, itsel does not
gie us any guidance on the point.
D. lactors aecting people to hae precautionary posture
Regardless o the obious result that strong ersion o the Precautionary Principle
is unattainable, people tend to expect and require the goernment to take
precautionary measures in daily lie. \hat is the reason
\e can ind some actors inluencing people`s decision and acting in the
perspectie o behaioral economics.
3
)a* 9/ai-aAi-it0 Heuristic
People tend to be more sensitie to salient Risks. 1hose saliencies can be made
through personal experiences or media exposure.
lor example, people who hae the experience o traic accident to themseles
or to their amily will generally assess the Risk rom traic accident much higher
than those who do not hae that kind o experience.
\hen people are repeatedly exposed to some speciic kinds o Risks through
media, they tend to be more sensitie to the Risk, and that can lead them to press
the goernment to take precautionary measures against that Risk. 1he swine lu
can be a good example.
)A* 1ntuiti/e (o+ico-og0
1he general people tend to be more sensitie to hazardous materials than the
proessionals on toxicology.
Moreoer, people tend to consider the ood saety problem as all or nothing
problem. 1hey think o ood addities as totally sae or too dangerous to their
health to be added to ood. 1hey are not trying to understand that there are in-
betweens.
1his intuitie toxicology can lead to the precautionary demand to the
goernment.
)c* Socia- Cascades
Certainly, human beings are not sheep, but in many cases, they just ollow up other
people`s decisions and behaiors.
\e can ind many positie and experimental eidences o social cascades.
4
3
1he concept o those actors explained below, or example, aailability heuristic, intuitie
toxicology, social cascade, etc. are explained in detail in many social science books and papers.
Among them, I generally reerred to the explanation o Cass R. Sunstein in Wh0 Societies ,eed
Dissent,2003,, Risk and Reason,2002,, and #aws of Fear,2005,.
An Oeriew o lood Saety Regulation in Korea
12
Social Cascade can also be made in the area o ood saety.
Len under the circumstances o uncertainty about the hazardousness o ood
addities, when some major groups o people strongly argue that the ood additie
is dangerous or health, people tend to ollow the other people`s opinion.
1hese social cascades made as such put pressure on the goernment to take
precautionary measures, een beore the scientiic eidence o Risk has not been
proided.
)d* Group 2o-ari=ation
People hae the tendency to reach the more polarized conclusion when they
deliberate in group than when they think o some issues indiidually.
Many examples o group polarization can be ound in real lie.
People who were just concerned about Global \arming can become an ardent
adocate o international measures against Climate Change ater coming back rom
a conerence on Global \arming. Laypersons who are in a group discussion
about hazardous ood addities organized , or example, by NGOs, tend to
become more strict about ood saety.
1his Group Polarization gets stronger when the group is composed o people
o similar thought, and gets weaker when the group is composed o people o
dierent thoughts or when proessionals who hae relatiely correct knowledge on
the issue are among the group.
1he Group Polarization also inluences the making o statutory ramework on
ood saety and it tends to lead the statutory ramework in the direction o the
Precautionary Principle.
)e* Hea-thBHea-th (radeoffs
All things and eents in the world around us are correlated with each other. In
that sense, it is not easy to sole some problem by separating the speciic issue
rom other things.
1he ood saety issue is no exception.
1aking precautionary measures against a speciic health issue may inoke a new
problem to other part o health.
lor example, let`s think o the case when the goernment orbids using a
certain ood additie, in such case, the ood producers will try to ind a substitute
o the orbidden additie. And, the new ood additie might be more harmul to
health or cause new risk.
In the U.S., when the use o asbestos was orbidden under the consideration
that inhaling asbestos can raise the possibility o getting cancer, the car makers
could not use asbestos to brake system anymore, which made the perormance o
brake worse than beore, and caused higher rate o traic accident. And, more
4
About the experimental eidences on cascade eect, reer to Cass R. Sunstein, Wh0 Societies ,eed
Dissent, larard Uniersity Press ,2003,, 54-3.
Seong \ook leo
128
lies than that could be saed by orbidding the use o asbestos were sacriiced by
the traic accident. 1his example shows the tradeos between health and health,
the tradeos between lie and lie.
Laypersons who do not hae proessional knowledge on ood saety are likely
to do not recognize the health-health tradeos, and are likely to demand the
precautionary measures against some speciic kinds o risk.
3. Cost-beneit analysis
A. Introduction
Cost-beneit analysis has become an increasingly popular tool in modern
administration.
Indeed, cost-beneit analysis is oten claimed as an alternatie to the
Precautionary Principle. Instead o blindly taking precautions,` it is argued that
administratie agencies should assess the beneits and the costs o regulation.
Only in the case o the beneits outnumbering the costs, is the regulation justiied.
5
B. 1he Administratie Regulation Act Article
1he article o Administratie Regulation Act o Korea requires the administratie
agencies to do beneit-cost analysis in making a new regulation or enorcing a
stricter regulation and make a report on the regulatory analysis.
According to that clause, all administratie agencies are doing beneit-cost
analysis in a new or stricter regulation.
\hat matters is whether the mandatory beneit-cost analysis in the ARA is
compatible with the Precautionary Principle in the lSA.
C. Cost-beneit analysis and incommensurable alue
1he most striking criticism on cost-beneit analysis is that there are cases when the
alue pursued by administratie policy is incalculable and incommensurable.
Actually, it is not such an easy job to calculate the alue o lie inluenced by
ood saety regulation.
loweer, the problem is that we hae to make policy decisions and make
choices among incompatible alternaties een under the circumstances o
incalculability and incommensurability.
1o sole the problem o incalculability and incommensurability, many
researches hae been done and regulatory agencies are using the calculating tools
so made in actual cost-beneit analysis.
Some o the examples are as ollows.
5
Sunstein, Laws o lear, 129.
An Oeriew o lood Saety Regulation in Korea
129
Table 1: Val-es of L(fe St-5(es
|LPA, Guide-ines for 2reparing Econo'ic ana-0ses 4@, 2000, recited rom Laws o lear, Sunstein, 135[
Table 2: A)en'. Val-es of L(fe, 1GG@02CC$
|Cited rom Laws o lear, Sunstein, 133[
Seong \ook leo
130
D. 1he Precautionary Principle s. cost-beneit analysis
I we take a strong ersion o the Precautionary Principle, then it seems that it is
not compatible with cost-beneit analysis, because the strong ersion o the
Precautionary Principle commands the regulatory agencies to take precautionary
measures without regard to the cost o taking the measure.
And we hae seen that the strong ersion o the Precautionary Principle leads
to the paralysis on public policy.
1here are many discussions on the relationship between the Precautionary
Principle and cost-beneit analysis.
I cannot coer up all the discussions in this paper.
I would rather point out that both the Precautionary Principle and cost-beneit
analysis are important in ood saety regulatory system designing.
My idea is that the policy measures prescribed in the lSA under the ein o
Precautionary Principle should be complemented with the perspectie o cost-
beneit analysis. And, cost-beneit analysis itsel needs to be reined and
substantialized.
IV6 Con'l-s(on
In this paper, I gae a brie reiew o the lood Saety Act o 2008 in Korea in the
perspectie o the Precautionary Principle. 1he regulatory agencies are likely to be
under the pressure rom the public to take the precautionary measures in ood
saety regulations. loweer, there are many things to consider in applying the
Precautionary Principle in real world o ood saety regulation.
My suggestion is that the Precautionary Principle should be complemented by
cost-beneit analysis in a reined and sophisticated way. 1he clauses o lSA should
be understood in that context.
Actually, the issue o balancing between the Precautionary Principle and cost-
beneit analysis entails ar more complicated and philosophical subject o how to
understand the concept o democracy.
I will leae it as the subject o my ollow up researches.
SECTION %:
CRIMINAL LAW AND CRIMINOLOY
Obs'en(t. (n a C+an)(n) So'(et.
Sang Won #ee
I6 Int&o5-'t(on
Obscenity cases relect the changes in the means o communication. 1raditional
obscenity cases mainly targeted physical actions and works such as books or
pictures and then began to ocus on ilms. Modern obscenity cases are easily ound
on the Internet, where images or ideos o sexual conduct are main targets.
1he Internet is a great stage or the pornography industry. As o 2006, eery
second, >3,05.64 is being spent on pornography, 28,258 Internet users are iewing
pornography, and 32 Internet users are typing adult search terms into search
engines, eery 39 minutes a new pornographic ideo is being created in the United
States.
1
1he pornography industry is larger than the reenues o the top technology
companies combined: Microsot, Google, Amazon, eBay, \ahoo!, Apple, Netlix
and LarthLink. 1he ollowing chart shows how lucratie the industry is. It also
shows that Korea is the second largest country or this industry and the irst in
reenue per capita.
1
http:,,amilysaemedia.com,pornography_statistics.html4time ,last isited Sept. 3, 2010,. 1he
statistics mentioned in this section are taken rom the same web page.
Sang \on Lee
134
Table 1: Wo&l5/(5e Po&no)&a8+. Re1en-es H2CC@I
1he internet pornography industry is in particular huge. Chart 2 demonstrates the
size o the internet pornography market.
Obscenity in a Changing Society
135
Table 2: Inte&net Po&no)&a8+. Stat(st('s
1he United States is the biggest producer o pornography in both ideos and \eb
pages, as Chart 3 and Chart 4 show.
Table $: To8 V(5eo Po&n P&o5-'e&s Table %: Po&no)&a8+(' Web Pa)es
Sang \on Lee
136
1his easy access to pornography has reied arguments on opposing sides o the
obscenity debate: anti-pornography groups call or increased punishment to
preent moral decline and addiction, while ree speech actiists insist that
obscenity prosecutions abridge the reedom o speech.
2
Strong enorcement o
obscenity law might result in repression o the rights o citizens, generous
regulation might result in moral insensibility and een sexual crimes.
Actually, many countries ban pornography. Among them, Saudia Arabia, Iran,
Syria, Bahrain, Lgypt, UAL, Kuwait, Malaysia, Indonesia, Singapore, Kenya, India,
Cuba, China are top pornography banning countries. It is interesting to note that
most o these countries are Muslim.
Korea has seeral statutes stipulating that obscenity with certain requirements
be a crime. Article 243 o the Criminal Act proides that those who distribute, sell,
lease, exhibit in public or play in public obscene paper, picture, ilm and other
materials shall be punished with an imprisonment not more than one year or a ine
not more than ie million won. Article 244 proides that those who produce, hae
in possession, import or export obscene materials with the intent o oering
materials or the crimes described in the article 243 shall be punished with an
imprisonment not more than one year or a ine not more than ie million won.
Article 245 proides that those who conduct an obscene act in public shall be
punished with an imprisonment no more than one year or a ine not more than
ie million won. 1he Criminal Act proides only the basic orms o obscenity
crimes. Korea has many special laws that enhance the penalty under certain
circumstances. Among those are the Act on the Punishment o Acts o Arranging
Sexual traicking, the Act on Promotion o Inormation and Communications
Network Utilization and Inormation Protection, etc., the Lmployment Security
Act, and the Act on the Regulation o Amusement Business Aecting Public
Morals.
Lspecially regarding Internet obscenity, the Act on Promotion o Inormation
and Communications Network Utilization and Inormation Protection, etc.
proides that whoeer circulates particular inormation on the internet, including
to distribute, sell, lease or exhibit in public obscene signals, words, sounds, images
or ideos, circulate on the Internet shall be punished with an imprisonment not
more than one year or a ine not more than 10 million won.
\hile these statues regulate the obscene` or obscenity`, the meaning o
obscene` or obscenity` is not always clear, rather it is such a ague notion that
citizens may tremble with ear o unpredictable legal interpretations and arbitrary
imposition o punishment.
2
Shannon Creasy, Defending 9gainst a Charge of 8Ascenit0 in the 1nternet 9ge; How Goog-e Searches Can
1--u'inate !i--erJs RConte'porar0 Co''unit0 StandardsS, 26 Ga. St. U. L. Re. 1029, 1031 ,2010,.
Obscenity in a Changing Society
13
II6 >-5('(al Un5e&stan5(n)
1. Understanding in Korea
A. Deinition
1he Korean Supreme Court has a irm deinition o obscenity. 1he Court has
deined obscenity in many cases as what prookes, excites or satisies a sexual
desire o an aerage person, spoils a normal sense o shame o an aerage person
3
and runs counter to good sexual morality.`
4
Although there has been little change in the deinition itsel, the Court has
become more generous against obscenity as the Korean society has become more
and urther open to sexual expression. In the 190s, the Court had strict concept
o obscenity. 1he court ound guilty o selling an obscene picture a deendant who
copied a nude image o a woman rom an art-drawing anthology and sold the
copies in order or matchbox manuactures to insert those copies in matchboxes
and sell them.
5
1he Court reasoned that, een though the original painting was a
work o art, the deendant insulted the art and made it obscene.
6
loweer, the present Court might take dierent position about this case i it
came to the Court now. lolding that it is not desirable or criminal law to
interene in moral or ethical problems, and een worse to interene in indiidual
and priate sexual problems, the Court stated that obscenity is limited only those
materials depicting or describing sexual organs or conducts without resere to the
extent o haing a harmul inluence to the society.
B. In Part or As a \hole
In the 190s, the Court seemed to allow the lower court to ocus on part o the
material in judging whether the material was obscene. Rejecting the appellant`s ,the
prosecution`s, argument that the lower court`s judgment erred in conicting him
because it held the noel in question was not obscene taken as a whole, the Court
stated that the lower court`s judgment rested on the speciic part o the noel
which the prosecution brought into the court and that the lower court`s statements
about the whole content o the noel were just dicta.
8
3
1his spoils a normal sense o shame o an aerage person` might be understood as causes an
aerage person to eel shame.`
4
KSC 2006do3119 ,2009,, 2008do6 ,2008,, 8do2331 ,198,, and many others.
5
KSC 0do189 ,190,.
6
1d.
lor instance in a new Act regulating the collection o data on high dangerous persons` ,Geset= =ur
Errichtung ge'einsa'er Dateien /on 2o-i=eiAeh&rden und ,achrichtendiensten des %undes und der #Knder
)Ge'einsa'eBDateienBGeset=* om >>" De=e'Aer >77? ,BGBl. I 66, p. 3409, it is proided that this
inormation may be collected and recorded in secrecy. No crime commission or intended crime
commission is necessary or that. Cr. /on Denkowski 200: 325 et seq.
8
%eck 1986. See also the actualization o his concepts in %eck 2000.
9
%eck 1986: 26.
10
%eck 1986: 30, see also on the diersity o possible risk deinitions according to him id", p. 40 et se:"
Mara Laura Bohm
148
As a particular way in which problems are iewed or imagined` and dealt with.
|.[ Risk is a statistical and probabilistic technique, whereby large numbers o
eents are sorted into a distribution, and the distribution in turn is used as a
means o making probabilistic predictions.
11
lrom a criminal law perspectie two aspects are o particular interest: First-0, the
need to deine risk and danger more precisely or rather to delineate one rom the
other, second-0, the problem o the chronological dimension o the risk concept, as
risks are, in respect to time, at the same time rea- and unrea-S
12
, and third-0 the
reormulations that these aspects bring or imply within the discourse o criminal
law.
1. Risk and danger
It is to be noted at this point or a preliminary delineation that risks and
respectiely risk actors are undamentally dierent rom danger. 1hat is to say
danger can always be traced back to a causatie eent, capable o causing damage,
which can be o human nature but doesn't hae to be. lor the dangers caused by
humans it can be said that the subject, who has caused the danger, is just as little in
the position to successully shield the releance o damage as third persons.
Dangers, thereore, always remain unoreseeable and uncontrollable.
13
Risks, on
the other hand, don't result rom causatie but rom probabilistic imputation, i.e.
damage is imputed through ,or example, an actuarial approach.
14
A risk thereore
is a melange situation, which is seen as potentially, partly responsible harmul
actor - because perceied, constructed, socially 'passed on' or or whateer
reason
15
- and thereore has to be preentatiely set aside.
11
8J!a--e0 2008: 5. lor urther reading on Risk rom the go/ern'enta-it0 perspectie see Don=e-ot
199, Ewa-d 1986, Ewa-d 1991, Defert 1991, Caste- 1983, Kras'ann 2003: 108 et se:"
12
%eck 1986: 44 ,wirklich und unwirklich`,.
13
Kras'ann 2003: 112.
14
Cr. Fee-e0HSi'on 1992, passi', Fee-e0HSi'on 1994: 13 ,It is actuarial. It is concerned with
techniques or identiying, classiying and managing groups assorted by leels o dangerousness. It
takes crime or granted. It accepts deiance as normal. It is sceptical that liberal interentionist crime
control strategies do or can make a dierence. 1hus its aim is not to interene in indiiduals` lies or
the purpose o ascertaining responsibility, making the guilty pay or their crime` or changing them.
Rather it seeks to regulate groups as part o a strategy o managing danger.`,.
15
lor a detailled analysis o the dierent sociological constructions and approaches to risk see Ginn
2008: 8 et se:", who present the dierences between authors and theories and oers ollowing
classiication o risk ideas - starting with the most concrete iew o risk and increasing in the grade o
abstraction and social construction attributed to this concept by the theorists, risk is dierentially
deined by them as a, real and objectie`, b, as subjectiely biased`, c, as socially mediated`, d, as
socially transormed`, e, as real and socially constructed`, or , as socially constructed`.
Lndanger Law: \ar on Risks in German Criminal Law
149
. the notion o risk is made autonomous rom that o danger. A risk does not
arise rom the presence o particular precise danger embodied in a concrete
indiidual or group. It is the eect o a combination o abstract actors which
render more or less probable the occurrence o undesirable modes o behaiour.
|...[ 1he presence o some, or o a certain number, o these actors o risk sets o
an automatic alert.
16
Risks are attributed because o a lack o physical, causatie reason and aim to
preent uture - potential - damage. Risks are thus conceptionally calculable and
controllable.
17
2. 1he chronological dimension o risk
1he damage, which illustrates the concretion o risks, stands in an uncertain uture,
their causes, howeer, are being determined at present. Lerywhere, whereupon
the 'guilt-seeking' spotlight alls`
18
existing actions become the cause o uture
damage, i.e. they become risks`. loweer, those causes are immediately - and
causatiely seen - neither as such nor under any circumstances damaging, this
makes their penal recordal in iew o attribution and legally protected interests o
criminal law undamentally problematic. lurthermore, those causes are something
constructed by interpretation which in turn implicates a problem when looking at
it rom the aspect o action and their causation within the meaning o criminal law.
Risk discourse is uture oriented. Risk rationalities and the technologies in which
they are embedded bring imagined utures to the present.`
19
Risk actors are not as
closely linked with consequences o damage as certain ,illicit, dangerous actions.
Instead, they are deined objectiely based on the deliberation o probability.
20
Len i one does not want to go so ar to say that risk actors are socially
constructed, one can nonetheless not oerlook the act that preentie orientated
politics de-construct the concrete subject o interention, and reconstruct a
combination o actors liable to produce risk. 1heir primary aim is not to conront
a concrete dangerous situation, but to anticipate all the possible orms o irruption
o danger`.
21
lereby, to be suspected, it is no longer necessary to maniest
symptoms o dangerousness or abnormality, it is enough to display whateer
characteristics the specialists responsible or the deinition o preentie policy
hae constituted as risk actors`.
22
lere, goernmental thinking oerlaps with the
perspectie o actuaria- justice" 1he importance o attribution processes also clearly
16
Caste- 1983: 59.
1
Cr. #uh'ann 1991, passi', Ginn 2008: , Kras'ann 2003: 112 et se:"
18
%eck 1986: 44.
19
Lricson,laggerty 2001: 8.
20
In this respect the opinion o theorists o the risk society` is deeply diided. See supra note 15.
21
Caste- 1983: 61
22
Caste- 1983: 59
Mara Laura Bohm
150
stands out, i one understands the concept o risk as system-theoretical in the sense
o Niklas Luhmann, and risks as a result o the process o decision-making and
attribution o responsibility or those decisions. 1he deelopment o risks,
thereore, depends directly on whether damage is assumed to be the primary or
secondary eect o certain decisions and who they are attributed to, or whether
they are seen as concretised dangers without being able to be attributed to anyone:
Accordingly, making a decision and attributing its uncertain consequences to this
decision implies risk. In contrast, negatie eects regarded as caused by external
eents are mere dangers. In other words, the distinction between risk and danger
does not reer to dierences in certainty, but to a dierence in attribution. |.[
Instead o assuming a ,possible increasing, number o objectiely gien
risks,dangers |.[,
|this careul separation o the terms risk` and danger`[ makes
clear that whether we regard something as a risk is a matter o attribution.
23
I something or somebody is seen as a risk this classiication implies that this
subject was able to choose between an action or situation with a possible damaging
outcome and a completely harmless action or situation. On the other side, to say
that something or somebody is dangerous stresses the responsibility o actions and
situations with possible damaging consequences outside the choices o this subject.
Len though in these cases where there are not damaging results, the possiAi-it0 o
these results is enough reason to attribute responsibility to the risky subject in the
irst case - but not in the second.
3. Reormulations in criminal law
I one realises, that criminal justice normally operates in iew o indiidual
imputable damage or rather risk causation, it is clear that the opening up o
criminal law and criminal justice to the needs o risk management would entail a
signiicant modiication o the well known ramework o criminal law principles
and logic:
First o all, the person as the addressee o the criminal law would be perceied in
an entirely dierent way by the criminal law. I we think that in a new risk-
approach there is no longer a subject`,
24
ormer personal categories were lost.
1he conrontation o the delinquent with a concept o a person which
accentuates the indiidual responsibility and excludes all other circumstances and
conditions, admittedly risks passing into nothingness`
25
and likewise the creation
o a liberal modern criminal law and its addressees, its doctrine o culpability, its
categories o crime and its legally protected interests. 1he criminal law oriented by
risk categories and inspired by the risk logic would be an extensie de-
23
appHKusche 2008: 88.
24
Caste- 1983: 61
25
Gnther 2002: 135. On the de-in:uentR as a ading category o knowledge see also Scheerer 1998.
Lndanger Law: \ar on Risks in German Criminal Law
151
personalised law`
26
and its objects would be risk groups o persons. 1his
perception would be deerred by a combat o risks by the criminal law, or persons
,de-personalised`, would thus be considered a risk because o certain traits o
their character, because o nationality or religion, because o type o riendships or
rareness, or een because o a certain way to be ,their being that way`,, which
would ultimately abolish the distinction between the oender and the oence.
Second-0, the traditional concept o a hu'an act in criminal law would hae to be
replaced by a ocus on risk actors which are not per se determined by acts. Lither
because in a risk society criminal law would ,in the sense o actuaria- justice* operate
against T objectiely assessed T risk actors ,and not against actions, or because
risk structures ,independent o actions, wou-d Ae defined and prosecuted A0 cri'ina- -aw"
Both cases are about the preention o uture damage through the prohibition o
risks, which hae been determined by actuarial assessment and political deinition,
respectiely.
(hird-0, criminal law would with regard to its te'pora- app-ication turn around,
because it would interene with a iew into the uture and not regarding the past -
because o a committed or attempted act. 1his would happen through the
punishment o pseudo-causes`, which could potentia--0 cause uture damage -
probabilistic and not causatiely iewed - i.e. through the logic o uture-orientated
interention, which has no actual proo, but - sti-- - unrea- uture scenarios as a
basis.
27
Because these risk deinitions are contingent and ariable, this would een
be a matter o law limited in time.
Fourth-0, the i'putation in criminal law, which rests on causality and personal
responsibility, would be reormulated by probabilistic objectie risk logic, because
there would be no directly identiiable causality, but rather an objectie diagnosis-
like attribution o potential uture damage, mediated by probabilistic calculations.
1his would in particular entail the punishment o unintended side-eects.
All these possible changes in the logic and unctioning o the criminal law are
not only speculations about uture scenarios. In the current discourse o the
criminal law in Germany all these reormulations are taking place. Addresses are
constructed as risks. Len urthermore, they are not being constructed and
managed as risks but rather constructed as risks and ought against as enemies.
1he conceptual relationship between the war on an enemy and the punishment
o a criminal is an old topic in criminal law and criminology, so it is not necessary
to urther discuss this issue.
28
Neertheless, regarding the understanding o the
current endanger law, it is necessary to stress that since about ten years discussions
26
Wo-f 198: 390 ,weitgehendes entpersonalisiertes Recht,. See also Kras'ann 2003: 120, 23 et se:",
Fee-e0HSi'on 1992 and 1994.
2
See on the technique o horror scenaries` 8pit=H(e--'ann 2009, passi', who explain its unctioning
in preentie and precautionary systems.
28
lor an historical oeriew o the relationship between war and crime see a'ieson 1998, on
criminalization as a useul instrument or political and legal power enorcement see Christie 1986, who
criticizes that criminals are suitable enemies` or the State, or a critical analysis o the similar
eatures o war and criminal law in law and order` policies see Steinert 1998 ,in particular p. 418,.
Mara Laura Bohm
152
concerning the relationship between war and criminal law hae become requent.
It has been een explicitly ormulated, theorized and proposed by the German
scholar Gnther akoAsE who is in aor o an enemy criminal law` or an enemy
penalty` ,leindstrarecht`,.
29
According to this approach there are some
indiiduals who cannot be seen as persons`,
30
they are not citizens anymore and
must be excluded rom society because they represent a social menace.
31
1he
criminal law has to apply dierent rules to these enemies such as the orward
displacement o punishability without reducing punishment in spite o this
displacement, rights and guarantees are reduced or een denied, and the criminal
legislation becomes war legislation.
32
1hese indiiduals do not hae to be punished
by the criminal system, but to be ought against as enemies.
33
1he proposal o
akoAs is, according to him, a real - and not ideal - way to deal with the limits o
law.
34
1his reality can be obsered within the goernment and the legislation,
which are currently acting according to these ideas. lurthermore, I contend that
these ideas are being combined with the logic o risk. 1hus, criminal law becomes
broader because o the diersity o risk constructions, and more aggressie because
o the war logic. Risky igures being ought against as enemies is a current logic in
the discourse and practice o criminal law in Germany.
IV6 C-&&ent 'onst&-'t(ons le)(t(*ate5 b. t+e Const(t-t(onal
Co-&t of e&*an.
1aking the explained risk concept as a theoretical ramework and haing shortly
presented the idea o an enemy penalty introduced within German criminal law, it
is now releant to reer the endangerer in Germany`s criminal law constructions,
who shows the reality o criminal law when the discourses o risk and o war
merge. It has been claimed by politicians, parliamentarians and judges that it is
necessary to deprie risk0 figures o their rights ,priacy, reedom, een beore their
potentially harmul risky status turns into concrete damaging situations. As a
consequence, the idea o an endangerer is present in a non-written orm in the
parliamentary discourse as well as in the discourse o the Bundeserassungsgericht
,the Constitutional Court o Germany,. 1he two constructed measures o the
criminal system which will be presented in the ollowing section are the acoustic
home sureillance and the supplementary preentie detention.
29
akoAs 2000: passi'.
30
akoAs 2000: 53, 2004: 90 et se:"
31
akoAs 2000: 51.
32
akoAs 2000: 51 et seq.
33
akoAs 2004: 90.
34
akoAs 2006: 289.
Lndanger Law: \ar on Risks in German Criminal Law
153
1. Acoustic lome Sureillance
1he acoustic ho'e sur/ei--ance - akustische Wohnrau'Aerwachung - is an ,alleged
exceptional, procedural measure consisting o the secret hearing o conersations
held by a suspect, by his relaties or by anybody staying in his priate premises.
1he objectie is to obtain eidence in criminal pre-trials related to organized
crime` and, aboe all, to get inormation about the network structures`.
35
Interestingly, Germany does not hae a codiied oence or organized crime` in its
Criminal Code. lence, parliamentarians had to introduce a long list o oences,
which may be related to organized crime`.
36
1he list contains more than one
hundred oences or which it is possible to carry out the acoustic home
sureillance. 1he asserted exceptionality o the measure, thereore, is not really an
exception.
1his amendment was introduced into the Code o Criminal Procedure in
1998.
37
An amendment to Article 13 o the lederal Constitution was also essential,
since this article establishes the iniolability o home space.
38
In 2004 the
Bundeserassungsgericht declared the constitutional amendment as according to
the Constitution since it did not iolate the eternity clausel` established in Article
9 ,para. 3, o the Constitution in order to aoid amendments which could abolish
35
Amendment Drat, B1-Drs. 15,4533, p. 2. Cr. also Bundestag, Plenary Session o 21
st
January
2005 ,in the ollowing: B1-Session 15,152,, p. 14291.
36
1he quasi-oicial deinition o organized crime` adopted in Germany is not a legal deinition, but
an instrumental concept or criminal policy. According to this deinition Organised crime
constitutes the planned commission o criminal oences drien by the question o acquiring proits
or powers. Such criminal oences hae to inole the cooperation o more than two participants
acting or a longer or indeinite period o time on a distributed-task basis by utilization o commercial
or business-like structures, or by application o iolence o other methods suitable or achieing
intimidation, or by exerting inluence on politics, the media, public administrations, justice systems,
or commerce` ,Line on Gewinnstreben bestimmte planm|ige Begehung on Strataten durch
mehrere Beteiligte zu erstehen, die au lngere oder unbestimmte Dauer arbeitsteilig - unter
Verwendung gewerblicher oder geschtshnlicher Strukturen, - unter Anwendung on Gewalt oder
anderer zur Linschchterung geeigneter Mittel, oder - unter dem Bemhen au Politik, Medien,
oentliche Verwaltung, Justiz oder \irtschat Linlu| zu nehmen, zusammenwirken.,, see Geset= =ur
%ekK'pfung der 8rganisierten Kri'ina-itKtE Bundesgesetzblatt I 1302, 15.0.1992 - B1-Drs. 12,989 -, p.
24,. See or urther critical iews o the imprecision o this deinition !o=ek 2001: 61, #isken 1994:
264, see also or a critical analysis o this deinition as a political instrument FernUnde= Steinko 2008: 61
et se:"
3
Geset= =ur Vnderung des 9rts" 6C GG o 26
th
March 1998 ,BGBl I 98, 610,
38
See the current ersion o Article 13 o the German Constitution. Ater establishing the
iniolability o home space ,para. 1, the article explains the exception or example or acoustic home
sureillance ,para. 3,: H1I 1he home is iniolable. ,., H$I I particular acts justiy the suspicion that
any person has committed an especially serious crime speciically deined by a law, technical means o
acoustical sureillance o any home in which the suspect is supposedly staying may be employed
pursuant to judicial order or the purpose o prosecuting the oence, proided that alternatie
methods o inestigating the matter would be disproportionately diicult or unproductie. 1he
authorisation shall be or a limited time. 1he order shall be issued by a panel composed o three
judges. \hen time is o the essence, it may also be issued by a single judge.` ,http:,,www.gesetze-
im-internet.de,englisch_gg,englisch_gg.html4GGengl_000P13, last isited on 24
th
January 2011,.
Mara Laura Bohm
154
some o the undamental constitutional rights.
39
1he Constitutional Court
understood that the acoustic home sureillance is not unconstitutional i it does
not iolate the inti'it0 sphere o the sureilled indiiduals.
40
1hus, the Court reached
satisaction by demanding more restrictie rules or the eectie implementation
o the measure. 1he parameters proided by the Court, howeer, were ound
unrealistic by scholars and practitioners: I the rules are ollowed, the sureillance
becomes impossible, i any sureillance is done, these rules are instantaneously
broken and the sureillance becomes automatically unconstitutional.
41
loweer, it is more important to point out that within the Bundestag
42
and
the Constitutional Court the question o what exactly organized crime` is remained
open.
43
Neertheless, both institutions airmed that this procedural measure was
utterly necessary in order to inestigate and to aoid the danger that the organized
crime` represents or the national and general security. 1he national security, it was
argued, is at stake and must be deended through the lexibilization and the more
intense interention o the criminal procedure. Organized crime` would not be a
usual criminal igure, but an inisible shapeless high-risk phenomenon challenging
the traditional criminal system and the Rechtsstaat.
44
2. Subsequent incapacitation order
1he suAse:uent incapacitation order ,nachtrKg-iche Sicherungs/erwahrung, is an ensuring
measure addressed to those who were conicted to prison because o sexual or
high iolent crimes. 1his measure was originally designed by the States o Baaria
and Saxony-Anhalt.
45
1he Bundeserassungsgericht ound these concrete
exceptional laws unconstitutional because o a lack o jurisdiction to release these
acts, but announced the constitutionality o the idea. 1he Court proposed this
measure to the Bundestag in 2004 in order to legally sole the exceptional situation
o some speciic detainees who had sered their sentences, but whom the
respectie States did not consider appropriate to release because o their orecasted
dangerousness`.
46
1hus, ollowing the order`
47
o the Constitutional Court, the
39
BVerG, Decision o 3
rd
March 2004 - 1 BR 238,98, 1084,99 - ,in the ollowing: BVerGL
109, 29,.
40
On the spheres theory` ,in time sphere which cannot be iolated by the state, priate sphere
where the state can interene in some cases, and social sphere which is open to state and public
interention, and its application to this case see Warntjen 200: 48 et se:"
41
Bundestag, Plenary Session 12.05.2005 ,in the ollowing: B1-Session 15,15,, p. 16456. See also
Haas 2004: 3083.
42
Cr. Bundestag, Plenary Session 9.10.199 ,in the ollowing: B1-Session 13,19,, p. 1692,
Bundestag, Plenary Session 16.01.1998 ,in the ollowing: B1-Session 13,214,.
43
BVerG 109, 29, p. 338 et se:"
44
B1-Session 13,19, pp. 1699, 104, B1-Session 13,214, pp. 19524, 19536.
45
See the drats and discussions o these states as well as on the nature these states recognized to this
measure ,police emergency measures, %ender 200, p. 26 et se:.
46
BVerG, Decision o 10
th
lebruary 2004 - 2 BR 834, 1588,02 ,in the ollowing: BVerGL 109,
190,.
Lndanger Law: \ar on Risks in German Criminal Law
155
Bundestag discussed and amended the ederal Criminal Code in 2004
48
and made it
legally possible to proe shortly beore the prisoner is going to be released
,probably ater years o imprisonment, i he represents a high risk` or the
general security
49
- i he does, he has to stay in jail or an undetermined amount o
time -.
50
Many actors could lead to the order o this measure: the behaior in prison,
the relationship to prison oicers, the seriousness o the original crime ,which
probably occurred many years ago,, the willingness o the prisoner to participate in
therapy programs, etc.
51
1hat means that there is not a direct relation between a
crime and the order o the subsequent incapacitation order nor between the
maniested personality o the oender in occasion o the crime and the subsequent
order o the measure.
52
1hereore, the prognosis or orecast is based exclusiely on
4
Bundestag, Plenary Session 25.03.2004 ,B1-Session 15,100,, p. 8995, Bundestag, Plenary Session
18.06.2004 ,in the ollowing: B1-Session 15,115,, pp. 10553, 10558 et se:" Also critical with the
attitude o the Court #auAentha- 2004: 44, Kin=ig 2008: 48, !ushoff 2008: 40
48
Gesetz zur Linhrung der nachtrglichen Sicherungserwahrung o 23
rd
July 2004 ,BGBl. I, p.
1838,.
49
See ,Section, 66b SuAse:uent incapacitation order introduced to the Criminal Code ,StGB,: ,1, I
prior to the end o a term o imprisonment imposed on coniction or a elony against lie and limb,
personal reedom or sexual sel-determination, or a elony pursuant to section 250 and section 251,
also in conjunction with section 252 or section 255, or or one o the misdemeanours in section 66
,3, 1st sentence, eidence comes to light which indicates that the conicted person presents a
signiicant danger to the general public, the court may subsequently make an incapacitation order i a
comprehensie ealuation o the conicted person, his oences and his deelopment in custody
indicate a high likelihood o his committing serious oences resulting in seriously emotional trauma
or physical injury to the ictim and i the remaining conditions in section 66 are ulilled. I making
the order at the time o coniction was impossible under law, the court shall, or the purpose o the
1st sentence o this subsection, also take into account any acts that were already eident at that
time.` ,http:,,www.gesetze-im-internet.de,englisch_stgb,englisch_stgb.html4StGBengl_000P66b,
last isited on 24
th
January 2011,
50
1he Luropean Court o luman Rights ,LClR, has condemned Germany because o the
retroactie application o an amendment which cancelled the 10 year limit o incapacitation ,LClR,
!" /" Ger'an0E Decision 1.12.2009, Nr. 19359,04, in the ollowing: LClRE !" /" Ger'an0,. In this
sense, the subsequent incapacitation order may also iolate Art. 5 ,1,,a, ,restriction o liberty
according to the decision o a responsible tribunal, and Art. ,principle o non retroactiity, o the
Luropean Conention on luman Rights. In the case o the subsequent incapacitation order the
indiidual is being ,urther, incarcerated on the basis o acts not related to his ormer crime and this
decision is being applied - in the case o the indiiduals who were already in prison beore the law
was amended - iolating the prohibition o retroactiity o criminal law ,nr. 88, 105, 120, 132 et se:" o
the decision,. See comments on this decision in H"E" !--er 2010, passim, GraAenwarter 2010, passim,
#aue 2010, passim, !erke- 2010: 1060 et se:", Kin=ig 2010: 238 et se:" lollowing the decision o the
LClR, Germany amended last December the Criminal Code and suppressed the general disposition
or the subsequent incapacitation order ,Geset= =ur ,euordnung des Rechts der Sicherungs/erwahrung und =u
Aeg-eitenden Rege-ungen /o' >>" 6>" >767 ,BGBl. I S. 2300,,, since 1
st
January 2011 it is only possible to
order this subsequently incapacitation in cases o internment in psychiatrical institutions and in
relation to ery serious crimes. 1his last amendment was orced by a decision o the LClR, meaning
that the internal logic o the measure was not reisited because o criminal principles or because o
principles o the Rechtsstaat, but only as a consequence o the interention o human rights parameters
imposed by the Luropean Court. lor this reason, this paper`s analysis still concentrates in the
criminal discourse o the subsequent incapacitation order, which is actually not really oercame yet.
51
BVerGL 109, 133, p. 161 et se:", see also .--enAruch 200: 62 et se:"
52
See also LClRE !" /" Ger'an0, nr. 88. See crit. also %&--ingerH2o--Khne ,2010: 2154 - Rn. -
decoupling` ,Lntkoppelung,,, Schneider 2006: 99 ,the incapacitation was decoupled`
Mara Laura Bohm
156
the conduct o the prisoner in jail and not directly related to a crime - and this act
represents the main dierence between the common incapacitation and the
suAse:uent incapacitation.
Some sexual oenders are een seen and classiied by the Constitutional Court
as bundles o risks`,
53
who are unable to come back to society. 1heir suAject-
quality is put aside and only the sum o attributed risk actors is justiying the
incapacitation - without direct bound to a new crime or new criminal
circumstances -.
54
1he oered argument is that these indiiduals would endanger
the general security. 1hat is, it is argued by politicians and judges, many risk actors
as possible should be taken into account and security measures as strong as
possible hae to be adopted in order to aoid any possible uture damage.
55
V6 JEn5an)e&7
\ith these disposities the criminal law becomes endanger law, which is broader
and more aggressie in terms o its interention strategies. Its unction is no longer
prosecuting and punishing crime and criminals, but dealing with the projection o
high-risks and, subsequently, stopping subjects and phenomena as the organized
crime` which endanger the security. 1he logic o the risk management explained in
the irst part o the paper and its combination with the idea o war on crime - as
well as the idea o the criminal as an enemy -, can be seen in the mentioned
examples, in which neither solely management o risk nor just war on enemies, but
actually a complex war on risks is being carried out.
1he criminal law acting in this war on risks is what is here called endanger law
whose working process can be summarized as ollows:
First-0, the forecast of each possiA-e future da'age for the genera- securit0 is represented -
such as corruption, parallel economy, gangs ighting prooked by the organized
crime`, iolent and,or sexual crimes to be committed by already conicted
subjects etc.
Second-0, re-e/ant risk patterns for each area are designed )constructed* - or example in
the case o the organized crime` the risk actors are nationality, religion, spoken
language, circle o riends, occupation among other, in the case o sexual and high
iolent criminality patterns are constructed taking into account the quality o the
committed crimes, the eeryday behaior o inmates in prison, their relationship
with custody personal, etc.
(hird-0, there is -ega- inter/ention )A0 'eans of an a--eged e+ceptiona- -aw* in order to
neutra-i=e these risks and in this way the right to home priacy and the right to
,abgekoppelt, rom the original oence,, #auAentha- 2004 ,deiation o the |.[ character o the
incapacitation as a direct legal consequence o the original oence ,Abkehr on dem |.[
Charakter der Sicherungserwahrung als einer unmittelbaren Rechtsolge der Anlasstat,, p. 41,.
53
BVerGL 109, 133, p. 158. 1he 1ribunal reers itsel to the undaments o the legislator.
54
See supra note 52.
55
Cr. Drat CDU,CSU ,B1-Drs. 15,256,, p. , BVerGL 109, 133, pp. 159, 14.
Lndanger Law: \ar on Risks in German Criminal Law
15
reedom were repealed in order to enable the criminal system to proceed in cases
without cri'e in which the only aim is to aoid that damages occur. lere, the idea o
Minority Report oers an extraordinary illustration: In the ilm uture crimes are
orecasted by rare creatures and a special police unit interenes immediately ater
these creatures fee- the crime coming and gie their alert. 1he preentie
interention consists in neutralizing, arresting and punishing people who did not
commit any crime. In this way, predictions and interentions are immediately
related. Causal chains are not releant - there is no action, no crime, and no
damaging or endangering conduct! 1hey are irreleant because risk is not cause, but
the adscription o the responsibility or uture possibilities.
56
Fourth-0, endangeringS factors and suAjects are e+c-uded" 1he exercise o procedural
rights and the alidity o legal principles are denied to them ,principle o non
retroactiity o criminal law,
57
principle o certainty o criminal law
58
,, they are also
excluded rom the society discursiely ,organized crime`, and physically
,incapacitation, as well as excluded rom the general common legal apparatus
which usually protects citizens and inhabitants o a country. Lndangerers` as
organized crime` or high risky sexual oenders` are not seen as law-subjects
anymore. 1hey are perceied neither as common citizens nor as usual criminals,
but as ho'o insecuritas - that means, constructed as the opposite o the general
security.
VI6 C&(t('al &e*a&:s
I would like to point out shortly that many aspects o the endanger law are not
really new. I we look at the work o Wa-ter %enja'inE
59
we will ind the iolent and
police-like ,without distance, character o law, which we also see in the immediate
interention and decision o home acoustic sureillance
60
and o supplementary
preentie detention.
61
1he impossibility o justice in the law enorcement` was
also suiciently analyzed by ac:ues Derrida, who - critically - recalled that is is
56
See supra note 1 et se:" and main text.
5
Crit. also Kin=ig 2006: 155, %&--ingerH2o--Khne ,2010: 2154 - Rn. -,, see the ery important decision
o LClRE !" /" Ger'an0, nr. 120, 132 et se:"
58
See crit. also %&--ingerH2o--Khne ,2010: 2154 - Rn. -,, Finger ,2008: 13 et se:",, !ushoff 2008: 446 et
se:"
59
%enja'in 1965.
60
1he decision to hear the conersation or not, and whether to record it or not, must be done at the
moment that the police suppose people at home are talking about crimes, not beore that, and not
ater. lor this reason it is necessary to carry out sureillance -i/e" 1his immediate method was required
by the Constitutional Court and ound impossible by practitioners ,B1-Session 15,152, p. 14291,.
See also supra note 41 and main text.
61
1he alert` about the risk-actors that the prisoner represents is gien by the prison oicers, which
are locally and temporarily immediate to him and cannot be neutral to his situation. In the same
sense, the law itsel was decided or immediate situations and to aoid the release o eight concrete
prisoners. 1he law, as seen, was rapidly written to sole these concrete cases ,B1-Session 15,115, p.
10555,.
Mara Laura Bohm
158
necessary or the law to apply force i it is to be truly alid.
62
1he indetermination
and agueness o the law that does not exactly deal with particular acts but with no
clear deined limits between nor'a-it0 and anor'a-it0 was largely discussed by !iche-
Foucau-t.
63
Moreoer, he situated this question in the wider ramework o the
relations o power and conincingly explained the role o the law as an instrument
within the ield o strategic power struggles. 1he legal legitimization o iolence by
claiming an exceptional situation seems to be part o this law rationality.
Nowadays, says Giorgio 9ga'Aen, these exceptions seem to hae become the rule
64
and other also point out that exceptions are nothing but extensions o the
norm.
65
In the cases analyzed here the exception was the initial argument which
later lowed through ery legal and ery common ways into the normal rule: the
emergency incapacitation laws designed to aoid the release o eight prisoners
became part o the ederal law o the Bundestag changing the Criminal Code, while
the exceptional sureillance measure o the secret serices became a common
procedural measure able to be applied in all cases related to organized crime`, that
means, in the inestigation o around one hundred dierent crime orms. 1aking
all these critical thinkers into consideration, the endanger law seems to not be so
innoatie ater all.
1oday the unctioning and internal logic o the law, howeer, is een more
isible and less principled than a couple o decades ago. 1he modern German law
is being reormulated.
66
1his modern law is being reedited according to the current rationa-it0 of risk: law
as an instrument o olatile risk management is aimed at the orecast o each
possible uture damage or the general security. At the same time, this modern law
is being reedited according to the current rationa-it0 of war: law as a means or
aggressie ighting and or neutralizing aceless enemies o the general security
while arguing the exceptionality o the measure.
Risk management and war ighting merge. Not just risk management, but
ighting, not just war to the enemy, but multiple constructions o possible
endangerers` by means o risk calculation.
Older law logics are being brought up today: As seen, the immediacy, the
iolence, the agueness and the exceptionality o law are immanent to the internal
62
Derrida 1991:12 et se:., and passi'.
63
Foucau-t 19: 15, Foucau-t 2005: 23.
64
9ga'Aen 2002: 130, 9ga'Aen 2004: 9, 41. ,Die unmittelbar biopolitische Bedeutung des
Ausnahmezustands als einer ursprnglichen Struktur, in der das Recht durch seine eigene
Suspendierung das Lebendige in sich schlie|t, kommt in aller Klarheit durch die 'i-itar0 order zum
Vorschein, die der Prsident der Vereinigten Staaten am 13. Noember 2001 erlassen hat. Danach ist
bei Nicht-Staatsbrgern, die terroristischer 1aten erdchtigt werden, unbeschrnkte lat ,indefinite
detention, und ein Proze| or 'i-itar0 co''issions erlaubt ,die nicht mit Militrgerichten zu
erwechseln sind, wie sie das Kriegsrecht orsieht, 2004: 9,.
65
8jakangas 2005: 16.
66
1hat is the criminal law inspired by illustrated ideals and applied in the German Rechtsstaat in
particular ater 1945, including the more pragmatic streams o preentie criminal law. lor a short
reiew o illustrated and modern criminal law see 9rno-d 2006.
Lndanger Law: \ar on Risks in German Criminal Law
159
logic o modern law. 1he endanger law, thereore, is neither a pre-modern nor an
anti-modern law. It is rather a maniestation o modern law reormulated to it the
challenges o the XXI century and its security obsession: endanger law is the
instrumental law o the securiti=ed times, in which there are again and again social
issues which become o political releance and ater that are een declared as
existential questions or the national security.
67
In the cases o the subsequent
incapacitation order and o the acoustic home sureillance the securitization o the
questions organized crime` and sexual criminality` hae een reached high leels
o nor'a-i=ation in the criminal law: they were written in the lederal Constitution
ollowing the rule o law and were een promoted by the
Bundeserassungsgericht.
Limiting the endanger law, I suggest, will only be possible ater starting to
recognize the internal components o law and to rethink the unction o criminal
law entirely. 1he war on risks may sound ery innoatie, but it is not a alid legal
solution to the insecurity. 1he means-end bound between criminal law as a means
and security as an end must be deinitiely eradicated. 1his eradication, howeer,
should not be expected rom the side o the constitutional and legal principles and
actors. 1hese constitutional and legal principles and actors, as seen, hae been
iniltrated and perormed by securitization-streams as well.
Refe&en'es
Agamben, Giorgio 2002: Ho'o Sacer. Die sou/erKne !acht und das nackte #eAen,
lrankurt a.M.: Suhrkamp
Agamben, Giorgio 2004: 9usnah'e=ustand, lrankurt a.M.: Suhrkamp
Beck, Ulrich 1986: Risikogesellschat. 9uf de' Weg in eine andere !oderne, lrankurt
a.M.: Suhrkamp
Beck, Ulrich 2000: Risk Society Reisited: 1heory, Politics and Research
Programmes, in: Adam, Barbara,Beck, Ulrich,Van Loon, Joost ,Ld.,: (he Risk
Societ0 and %e0ond" Critica- 1ssues for Socia- (heor0, London |u.a.[: Sage, 2000, 211-
229
Arnold, Jorg 2006: Lntwicklungslinien des leindstrarechts in 5 1hesen, in:
H&chstrichter-iche Rechtsprechung Strafrecht BHHRSB Aug.,Sept. 2006, 303-315
Bender, Soledad 200: Die nachtrKg-iche Sicherungs/erwahrung, lrankurt a.M.: Peter
Lang.
Benjamin, \alter 1965: Zur Kritik der Gewalt, in: id", Gur Kritik der Gewa-t und
andere 9ufsKt=e, lrankurt a.M.: Suhrkamp, 29-65
6
See %u=anHWae/erHde Wi-de 1998, C"9"S"E" Co--ecti/e 2006.
Mara Laura Bohm
160
Bollinger, Lorenz,Pollhne, lelmut 2010: Nachtrgliche Anordnung der
Unterbringung in der Sicherungserwahrung - 66 b, in: StGB - Nomos
Kommentar, Band 1, 3. Aul., 2151-2160
Bohm, Mara Laura 2008: 1ransormaciones en el Lstado de,l, Derecho, in:
Cuadernos de Doctrina 0 urisprudencia 2ena-" Co-ecciWn Cri'ino-og$aE teor$a 0 pra+is, ol.
5,6, 15-33
Buzan, Barry,\aeer, Ole,de \ilde, Jaap 1998: Securit0; 9 ,ew Fra'ework for
9na-0sis, Boulder, CO: Lynne Riener
C. A. S. L. Collectie 2006: Critical Approaches to Security in Lurope: A
Networked Maniesto, in: Securit0 Dia-ogue ol. 3,4,, 443-48
Castel, Robert 1983: Von der Gehrlichkeit zum Risiko, in: \ambach, Manred
M. ,Ld.,: Der !ensch a-s Risiko, lrankurt a.M.: Suhrkamp, 51-4
Christie, Nils 1986: Suitable Lnemy, in: Bianchi, lerman,an Swaaningen, Ren
,Ld.,: 9Ao-itionis'; (owards a ,onBreppresi/e 9pproach to Cri'e, Amsterdam: lree
Uniersity Press, 42-54
Deert, Daniel 1991: Popular lie and insurance technology, in: Burchell,
Graham,Gordon, Colin,Miller, Peter ,Ld.,: (he Foucau-t Effect; Studies in
Go/ern'enta-it0, Chicago: CUP, 211-234
Derrida, Jacques 1991: Gesetzeskrat. Der ,mystische Grund der Autoritt`,
lrankurt a.M.: Suhrkamp
Donzelot, Jacques 199: 1he poerty o political culture, in: 1deo-og0 and
Consciousness 5, 1-86
Lricson, Richard,laggerty, Kein 2001: 2o-icing the Risk Societ0, Oxord: OUP
Lwald, lranois 1986: #JEtat pro/idence, Paris: Grasset, 1986
Lwald, lranois 1991: Insurance and Risks, in: Burchell, Graham,Gordon,
Colin,Miller, Peter ,Ld.,: (he Foucau-t Effect; Studies in Go/ern'enta-it0, Chicago:
CUP, 19-210
leeley, Malcolm,Simon, Jonathan 1992: 1he New Penology: Notes on the
Lmerging Strategy o Corrections and Its Implications, in: Cri'ino-og0 30, 449-
44
leeley, Malcolm,Simon, Jonathan 1994: Actuarial Justice. 1he Lmerging New
Criminal Law, in: Nelken, Daid ,Ld.,: (he Futures of Cri'ino-og0, London |u.a.[:
1housand Oaks, 13-201
lernandez Steinko, Armando 2008: #as pistas fa-sas de- cri'en organi=ado" Finan=as
para-e-as 0 orden internaciona-, Madrid: Catarata
Lndanger Law: \ar on Risks in German Criminal Law
161
linger, Catrin 2008: 3orAeha-tene und ,achtrKg-iche Sicherheits/erwahrung" Gur
Rechts'KIigkeit /on X ??a und ??A StG%" Gug-eich eine Darste--ung des .'gangs 'it
gefKhr-ichen Rckfa--tKtern in den ,ieder-anden, Baden-Baden: Nomos
loucault, Michel 19: Se+ua-itKt und Wahrheit" Der Wi--e =u' Wissen, lrankurt a.M.:
Suhrkamp
loucault, Michel 2005: Die Maschen der Macht, in: id": 9na-0tik der !acht,
lrankurt a.M.: Suhrkamp, 220-239
Grabenwarter, Christoph 2010: \irkungen eines Urteils des Luropischen
Gerichtshos r Menschenrechte - am Beispiel des lalls M. gegen
Deutschland, in: uristen Geitung 18, 85-869
Gnther, Klaus 2002: Zwischen Lrmchtigung und Disziplinierung.
Verantwortung im gegenwrtigen Kapitalismus, in: lonneth, Axel ,Ld.,:
%efreiung aus der !ndigkeit" 2arado+ien des gegenwKrtigen Kapita-is'us,
lrankurt,New \ork: Campus Verlag, 11-139
laas, Gnter 2004: Der ,Gro|e Lauschangri` - klein geschrieben, in: ,eue
uristische Wochenschrift 43, 3082-3084
Jakobs, Gnther 1985: Kriminalisierung im Voreld einer Rechtsgutserletzung, in:
Geitschrift fr die gesa'te Strafrechtswissenschaft 9, 51-85
Jakobs, Gnther 2000: Das Selbsterstndnis der Strarechtswissenschat or den
lerausorderungen der Gegenwart, in: Lser, Albin,lassemer,
\inried,Burkhardt, Bjorn ,Ld.,: Die deutsche Strafrechtswissenschaft /or der
ahrtausendwende T RckAesinnung und 9usA-ick, Mnchen: Beck, 4-56
Jakobs, Gnther 2004: Brgerstrarecht und leindstrarecht, in: H&chstrichter-iche
Rechtsprechung Strafrecht BHHRSB, Mrz, 88-95
Jakobs, Gnther 2006: leindstrarecht Line Untersuchung zu den Bedingungen
on Rechtlichkeit, in: H&chstrichter-iche Rechtsprechung Strafrecht THHRSBE
Aug.,Sept., let 8,9, 289- 29
Jamieson, Ruth 1998: 1owards a Criminology o \ar in Lurope, in: Ruggiero,
Vincenzo,South, Nigel,1aylor, Ian ,Ld.,: (he ,ew European Cri'ino-og0" Cri'e
and Socia- 8rder in Europe, London: Routledge, 480-506
Japp, Klaus P.,Kusche, Isabel 2008: Systems 1heory and Risk, in: Zinn, Jens O.
,Ld.,: Socia- (heories of Risk and .ncertaint0 B 9n 1ntroduction, Oxord - Malden
,MA,: Blackwell, 6-105
Kinzig, Jorg 2006: Die Sicherungserwahrung - on einer ergessenen zu einer
boomenden Ma|regel, in: Barton, Stephan ,Ld.,: YZwei- er fr die 9--ge'einheit
gefKhr-ich ist[R 2rognosegutachtenE ,euroAio-ogieE Sicherungs/erwahrung, Baden-Baden:
Nomos, 143-13
Mara Laura Bohm
162
Kinzig, Jorg 2008: Die #ega-AewKhrung gefKhr-icher Rckfa--tKter T Gug-eich ein %eitrag =ur
Entwick-ung des Rechts der Sicherungs/erwahrung, Berlin: Duncker & lumblot
Kinzig, Jorg 2010: Das Recht der Sicherungserwahrung nach dem Urteil des
LGMR in Sachen M. gegen Deutschland, in: ,eue Geitschrift fr Strafrecht, 233-
239
Krasmann, Susanne 2003: Die Kri'ina-itKt der Gese--schaft" Gur Gou/erne'enta-itKt der
Gegenwart., Konstanz: UVK Verlagsgesellschat mbl.
Krasmann, Susanne 200: 1he Lnemy On the Border. Critique o a programme in
aour o a preentie state, in: 2unish'ent \ Societ0 9,3,, 301-318
Laubenthal, Klaus 2004: Die Renaissance der Sicherungserwahrung, in: Geitschrift
fr die gesa'te Strafrechtswissenschaft 116, 03-50
Laue, Christian 2010: Die Sicherungserwahrung au dem europischen Prstand
- zugleich eine Anmerkung zu LGMR, M. s. Deutschland . 1.12.2009 -
19359,04, in: uristische Rundschau 5, 198-204
Lisken, lans 1994: Voreldeingrie im Bereich der ,Organisierten Kriminalitt -
Gemeinsame Augabe on Verassungsschutz und Polizei, in: Geitschrift fr
Rechtspo-itik, 264-20
Luhmann, Niklas 1991: So=io-ogie des Risikos, Berlin |u.a.[: de Gruyter
Merkel, Grischa 2010: Incompatible Contrasts - Preentie Detention in
Germany and the Luropean Conention on luman Rights, in: Ger'an #aw
ourna- 11,9,, 1046-1066
Mozek, Martin 2001: Der groIe #auschangriff T Die Rege-ung des X677c 1 ,r"C St28 i'
Spannungsfe-d =wischen 3erArechensAekK'pfung und 3erfassungswirk-ichkeit, Aachen:
Shaker
Mller, lenning Lrnst 2010: Die Sicherungserwahrung, das Grundgesetz und die
Luropische Menschenrechtskonention, in: Straf/erteidiger 4, 20-212
Musho, 1obias 2008: Strafe T !aIrege- T Sicherungs/erwahrung" Eine kritische
.ntersuchung Aer das 3erhK-tnis /on Schu-d und 2rK/ention, lrankurt a.M.: Peter
Lang
Ojakangas, Mika 2005: Impossible Dialogue on Bio-power. Agamben und
loucault, in: Foucau-t Studies 2, Mai 2005, 5-28
O`Malley, Pat 2008: Goernmentality and Risk, in: Zinn, Jens O. ,Ld.,: Socia-
(heories of Risk and .ncertaint0 B 9n 1ntroduction, Oxord - Malden ,MA,:
Blackwell, 52-5
Opitz, Sen,1ellmann, Ute 2009: Katastrophale Szenarien: Gegenwrtige Zukunt
im Recht und Okonomie, in: #e/iathanE Sonderhet 25 ,Sichbarkeitsregime.
Lndanger Law: \ar on Risks in German Criminal Law
163
Uberwachung. Sicherheit und Priatheit im 21. Jahrhundert, herausgegeben
on U. Brockling, L. lempel und S. Krasmann,
Scheerer, Sebastian 1998: 1he Delinquent as a lading Category o Knowledge, in:
Ruggiero, Vincenzo,South, Nigel,1aylor, Ian ,Ld.,: (he ,ew European
Cri'ino-og0" Cri'e and Socia- 8rder in EuropeE London: Routledge, 425-442
Schneider, lendrik 2006: Die Kriminalprognose bei der nachtrglichen
Sicherungserwahrung - An den Grenzen der klinischen Kriminologie, in:
Straf/erteidigerE 99-104
Steinert, leinz 1998: Ideology with luman Victims`: 1he institution o crime and
punishment` between social control and social exclusion: historical and
theoretical issues, in: Ruggiero, Vincenzo,South, Nigel,1aylor, Ian ,Ld.,: (he
,ew European Cri'ino-og0" Cri'e and Socia- 8rder in Europe, London: Routledge,
405-424
1hiede, lrank 2008: Lntwur des BKA-Gesetzes, in: Kri'ina-istik 67H>774, 539-
542
Ullenbruch, 1homas 200: Nachtrgliche Sicherungserwahrung - ein legislatier
,Spuk` im judikatien ,legeeuer`, in: ,eue Geitschrift fr Strafrecht, 62-1
on Denkowski, Charles 200: Linstuung als ,islamistische, Gehrder und
,heimliche, lolgeeingrie, in: Kri'ina-istik 5,200, 325-332
on Denkowski, Charles 2008: Das BKA im \andel: Linst Zentralstelle, bald
Bundeskriminalpolizei im Voreld terroristischer Geahren - die Gro|e
Koalition leitet einen Paradigmenwechsel ein, in: ,eue Kri'ina-po-itik 3,2008,
82-8
\arntjen, Maximilian ,200,: Hei'-iche Gwangs'aInah'en und der KernAereich pri/ater
#eAensgesta-tung, Baden-Baden: Nomos.
\ol, Rainer 198: Zur Antiquertheit des Rechts in der Risikogesellschat, in:
#e/iathan, 35-391
Zinn, Jens 2008: Introduction: 1he Contribution o Sociology to the Discourse on
Risk and Uncertainty, in: id" ,Ld.,: Socia- (heories of Risk and .ncertaint0 B 9n
1ntroduction, Oxord - Malden ,MA,: Blackwell, 1-1
L(st of Cont&(b-to&s
43+*, Ma&Ka La-&a, D&6 8+(l6
Georg-August-Uniersitt Gottingen, laculty o Law ,Department o International
and loreign Criminal Law,. Main research ields: Security Policy and Criminal
Policy, Postmodern Sociology o Law, criminological aspects o International
Criminal Law.
C+o, #on) S(:, P&ofesso&, LL646 HSNUI LL6M6 L >6S6D6 HU6C6 4e&:ele.I
Seoul National Uniersity, School o Law. Main research ields: Lnironmental
Law.
De-ts'+, E&/(n, P&ofesso& e*6, D&6 (-&6 D&6 (-&6 +6'6 *-lt, D&6 *e56 +6'6
*-lt6
Georg-August-Uniersitt Gottingen, laculty o Law. Main research ields:
Medical Law, Insurance Law, Law o 1orts, Liability Law.
D-tt)e, -nna&, P&ofesso&, D&6 (-&6
Georg-August-Uniersitt Gottingen, laculty o Law ,Department o Criminal
Medical and Biological Law,. Main research ields: Criminal Law, Criminal
Procedural Law, Philosophy o Law, Medical Law ,ice managing director o the
Centre o Medical Law o the Uniersity o Gottingen,.
#eo, Seon) Woo:, Asso'(ate P&ofesso&, D&6 (-&6, 46A6 (n E'ono*('s HSNUI,
LL6M6 L P+6D6 (n La/ HSNUI
Seoul National Uniersity, School o Law. Main research ields: Public Law, Law
and Lconomics.
#e-n, We&ne&, P&ofesso&, D&6 (-&6 D&6 +6'6
Georg-August-Uniersitt Gottingen, laculty o Law ,Institute or General 1heory
o State and Political Sciences,. Main research ields: Public Law, Constitutional
listory, Political Science, Lcclesiastical Law, American Constitutional Law.
!&a-se, RM5()e&, P&ofesso&, D&6 (-&6
Georg-August-Uniersitt Gottingen, laculty o Law ,Institute or Labour Law,.
Main research ields: Labour Law, Ciil Law.
!/on, Yo-n)<oon, Asso'(ate P&ofesso&, LL6M H#a&1a&5 La/ S'+oolI, LL6M
L P+6D6 (n La/ HSNUI
Seoul National Uniersity, School o Law. Main research ield: Ciil Law.
List o Contributors
166
Lee, San) Won, Asso'(ate P&ofesso&, LL646, LL6M6 L P+6D6 (n La/ HSNUI,
LL6M6 HU6C6 4e&:ele.I
Seoul National Uniersity, School o Law. Main research ields: Criminal Law and
Procedure.
Le(tne&, >o+n M6, P&ofesso&, D&6 (-&6
Seoul National Uniersity, School o Law. Main research ields: Internet Law,
Lnironmental Law, Comparatie Law.
S'+o&:o8f, ,&an:, P&ofesso&, D&6 (-&6
Georg-August-Uniersitt Gottingen, laculty o Law ,Institute o International
Law and Luropean Union Law,. Main research ields: Constitutional Law,
Luropean Union Law and International Lconomic Law.
ISBN: 978-3-86395-012-5
ISSN: 1864-2128
Gunnar Duttge, Sang Won Lee (Hg.)
The Law in the Information and
Risk Society
Gttinger Juristische Schriften
G
t
t
i
n
g
e
r
J
u
r
i
s
t
i
s
c
h
e
S
c
h
r
i
f
t
e
n
,
B
a
n
d
1
0
D
u
t
t
g
e
/
L
e
e
(
H
g
.
)
T
h
e
L
a
w
i
n
t
h
e
I
n
f
o
r
m
a
t
i
o
n
a
n
d
R
i
s
k
S
o
c
i
e
t
y
Universittsverlag Gttingen Universittsverlag Gttingen
The information and risk society poses a new challenge for the law in all its frag-
ments. Modern media communication and technologies increase peoples prospe-
rity while stating new risks with not uncommonly devastating crisis-potential: The
banking crisis, the safety net for the euro zone and the nuclear incident in Fukus-
hima are only the latest forms of those specifc modern common dangers which the
law is facing in many cases due to its domestically limited validity - not or not
suffciently prepared. In order to promote the international dialog within the juris-
prudence there was a conference in October 2010 held by the faculty of law of the
Georg-August-Universitt, supported by the chair of GAU, together with the faculty
of Seoul National University School of Law discussing main issues of law in a modern
information and risk society. With this volume the results of this convention shall be
made accessible to everybody interested. Thereby it illustrates not only the variety of
new issues and aspects, but also reveals that this can only be the beginning on the
way to a deeper understanding of the complex correlations.
Volume 10 in the series Gttinger Juristische Schriften
The series is published by the Faculty of Law of the Georg-August-Universitt Gt-
tingen und makes events at the faculty publicly available.