German Amtsgericht on the duty to rescue

By Dr. Lotte Meurkens

 

A decision of the German Amtsgericht Essen-Borbeck, which as a court of first instance deals with both criminal and civil cases, recently became world news. For example NOSBBC Newsder Spiegel Online, and the New York Times all reported about it. It became apparent to me after telephoning the court that the judgment has not been published yet, meaning that my writing will be based on these news items, and that it concerns a criminal case. The latter is important as news on court decisions (including terms such as ‘prosecutor’ and ‘fine’) should be interpreted with care especially when the court in question also has civil jurisdiction. Moreover, given the legal topic in this case (liability for omissions, i.e. liability that is not based on an act but on a failure to act, and duty to rescue), it could very well have been a civil case.

read more

Report from M-EPLI talk with Prof. Dr. Thomas Coendet- “Comparative Law as a Means of Legal Reasoning?”

By Dr. William Bull and Doris Beganovic

 

On the 13th of September 2017, M-EPLI had the honour of welcoming Prof. Dr. Thomas Coendet, the respected Swiss lawyer and current professor at KoGuan Law School in Shanghai, to give a talk on the topic of “Comparative Law as a Means of Legal Reasoning?”.

Firstly, some insight into comparative law should be given. Comparative law is the act of comparing the law of one country to the law of another, by and large first being the law of a foreign country and second being the law of one’s own country. The essence of comparison is looking at one legal data in both systems and then focusing on similarities and differences between them.  In most of the countries in Europe, legal decisions are based on legal reasoning that stems from the domestic jurisdiction. Judges do not usually look to foreign jurisdictions to guide their decisions or to create their arguments by engaging in comparison between the foreign law and their own.

read more

New community research initiative: The European Law&Tech Network

While many decades ago, the field of law and technology was focused on the study of intellectual property, more recently, legal scholars have extended their interest in technology to other fields such as the regulation and governance of the Internet, privacy and cybersecurity, data collection, digital platforms, artificial intelligence, and blockchain. The European Law and Technology Network brings together scholars from different nationalities and fields of research that are trying to understand how technology works and how law should respond to its challenges. The European Law and Technology Network is an initiative of two scholars affiliated with Dutch universities: Sofia Ranchordas has published extensively on the regulation of digital platforms and comparative public law. She is currently based at Leiden Law School and as of October 1st, 2017, she will be Chair of European & Comparative Public Law and Rosalind Franklin Fellow at Groningen Law School. Sofia is also affiliated with the Information Society Project at Yale Law School. Catalina Goanta is an Assistant Professor of Private Law and affiliated MEPLI researcher who writes on consumer law, innovation policy, and is behind a number of local and international law and technology initiatives.

So far the network has gathered over 240 scholars from 22 European and Middle Eastern countries.

For more information on the Network and the opportunity to join it, have a look at its website.

read more

MEPLI’s Academic Director – Professor Jan Smits – New Dean of Law Faculty at Maastricht University

News for our MEPLI community and beyond!

As of 1 December 2017, MEPLI’s Academic Director and current chair of the Private Law Department, Jan Smits, will succeed Hildegard Schneider as new dean of the Faculty of Law.

Our leader and new dean has been a visiting scholar at various foreign institutes, including Tulane Law School, the University of Leuven, the University of Liège, Louisiana State University, Penn State Dickinson School of Law, and the University of Helsinki. From 2010 to 2012 he served as Hill Visiting Chair on the Internationalisation of Law and from 2013 to 2014 he served as Rotating Chair at Ghent University.

Jan Smits is a member of the Royal Netherlands Academy of Arts and Sciences (KNAW) and a titular member of the International Academy of Comparative Law (AIDC). He is also chair of the KNAW Law Department and a deputy judge at the Amsterdam Court of Appeal.

The official press release can be found on the website of the Law Faculty.

read more

Consumers on Fyre: Influencer Marketing and Recent Reactions of the United States Federal Trade Commission

 

*Content re-posted from the Stanford-Vienna Transatlantic Technology Law Forum  – Transatlantic Antitrust and IPR Developments, Bimonthly Newsletter, Issue No. 3/2017 (June 12, 2017)

 

Social Media Disruptions

Silicon Valley continues to change our world. Technology-driven innovations that are disseminated with the help of the Internet have met with great success. This success translates into heaps of followers, as one can see in the case of platforms such as Facebook and Instagram. However, it is the followers themselves who continually affect the purposes of these platforms. A good example in this sense is Youtube; what started out as an alternative channel for the sharing of low-resolution home videos soon became a place where users could actually create their own content professionally. If well-received, this content leads to real Internet phenomena, and eventually become monetized, via direct or indirect advertising. Individuals around the world now have access to their own TV-stations where they can attract funders and actually make a good living out of running their channels.

Online content creation raises issues that are similar to those in the sharing economy (e.g. Uber, Airbnb, etc.). On the one hand, online platforms connect individual content providers with viewers, in the same peer-to-peer fashion that AirBnB connects an apartment owner and a tourist. Given the service-orientation of both activities, provided they are monetized, a clear issue emerges: when does an individual stop being a peer? In other words, what does it mean to be a consumer in this environment? Relatedly, what legal standards apply to the process of creating such content?

read more

When Historic Injustice Meets Tort Law: the Case of the Srebrenica Genocide

In July 1995, thousands of Muslim Bosniak men were deported from the enclave Srebrenica and subsequently killed by the Bosnian Serb army under the command of Ratko Mladić. The UN had declared Srebrenica a “safe area”, but the Dutchbat soldiers were not able to prevent the capturing and killing of the victims by the Bosnian Serb army. Years later, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ) ruled that the massacre constituted genocide.

Numerous investigations were carried out regarding what happened and why. The reports that were produced suggest that the highly ranked officers within the Royal Netherlands Army withheld evidence, and that the Dutch Ministry of Defense refused to take responsibility or blame for the massacre. And so the growing frustration of the relatives led to lawsuits against the UN, France, the Netherlands, and even an individual officer. Interestingly, Dutchbat soldiers are currently also preparing a claim against the State of the Netherlands.

In a groundbreaking decision in 2013, the Dutch Supreme Court upheld a Court of Appeal’s decision where the Netherlands was held liable for the death of a muslim Boasniak Dutchbat employee and two family members of a mulsim Bosniak UN translator. On 16 April 2014, the court of first instance held that the State was also responsible for the deportation of the 300 (at least) muslim men from the compound that was under the control of Dutchbat. Importantly, the court only held the State responsible for the victims who were deported from the compound – not for the ones who, for example, fled to the forest and who were captured by the Bosnian Serbs. Both the plaintiffs – the ‘Mothers of Srebrenica’ – and the State appealed the decision.

On 27 June 2017, the Court of Appeal held that those in charge of Dutchbat should have known as of 13 July 1995 that the men who were being transported (deported) from the compound were in real danger of being subjected to inhumane treatment. As a result, the State acted negligently by actively facilitating the deportation of those staying on the compound. Additionally, the court decided that the State was negligent for not having offered the option to the male refugees to stay on the compound. Because of this, at least according to the court, the refugees were withheld a 30 percent chance of not being exposed to inhumane treatment.

A combination of reasons explains how tort law can produce such outcomes. First, the individual protection paradigm requires a focus on the interests of individual plaintiffs (or groups of legally comparable plaintiffs). This is why the court distinguished between various types of victims (e.g. those who were on the compound on or after 13 July 1995, those who were not on the compound before or on that date) and different instances of negligence (e.g. facilitating the deportation, allowing men to leave the compound knowing there was a real danger of being subjected to inhumane treatment).

Second, tort law compares the situation the victim is in with the situation it would have been in had the wrong not occurred. Although the 30 percent number is arbitrary, the court does justifiably apply the ‘loss of a chance’ concept by considering that the fate might have been (but not necessarily would have been) different had Dutchbat taken other measures. There was a realistic chance that the compound would have been overtaken and the men would have been deported and possibly killed had Dutchbat offered resistance. Consequently, it is logical from a tort law perspective that the victims are not entitled to the full amount of damages.

Third, tort law defines wrongs and losses in a particular way. The damages that some of the plaintiffs will receive are damages for pain and suffering due to the inhumane treatment of their relatives. Awarding monetary compensation for pain and suffering is common in tort law. Relief that consists of obliging the State to take responsibility for its military decisions and for the State withholding information and evidence are, however, not. Such needs are not recognized as legally relevant interests and are consequently neither claimed by plaintiffs nor ordered by courts.

Cases like the Srebrenica case illustrate that tort law is not designed for repairing historic injustice like the Srebrenica genocide. Who was and was not on the compound at the ‘right’ time is to a large extent based on coincidence and consequently irrelevant from a plaintiff’s perspective, but highly relevant from a wrongdoer’s perspective, particularly concerning the amount of damages that would need to be paid if the number of those entitled to damages increase. Furthermore, it is unlikely that the plaintiffs were looking for a correct application of the concept of ‘loss of a chance’, or that they were in any way seeking to restore the situation had the wrong not occurred – no relief will make their relatives return or undo the pain and suffering. Instead, and as empirical research indicates, plaintiffs were likely to have been seeking recognition, an acknowledgment, information about what happened and why, and the opportunity to have a voice.

Repair of historical injustice calls for a different application of tort law, or perhaps a different tort law. However, an alternative that performs better at addressing victims’ and relatives’ needs while balancing their interests in a fair way is not readily available. Developing such an alternative would not only be a good research project, it could also improve the handling of claims involving historic injustice. Until then, plaintiffs will need to be explained why tort law can produce, for them, incomprehensible outcomes.

read more