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7719 results in Intersentia

Page 164 of 386

  • Foreword

  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp v-vi

  • Summary

    Have you ever considered the discussion on responsibilities and liabilities in the field of the European data protection law as a journey? You should. Brendan Van Alsenoy is inviting you take a trip through the whole history of data protection law in Europe and around the world, as well as through current practice to better understand the roles of different actors in what is a fiendishly complicated environment. You will find him to be a guide who effortlessly offers fresh perspectives on the subject: a relatively young scholar leveraging a surprisingly extensive and intensive practical experience in a national data protection authority as well as playing a key role in the Working Party Article 29 / European Data Protection Board.

    This is a guide to the places that you know and new ones you never thought exist. At times it may explain concepts that you heard about dozens of times before. But Van Alsenoy's explanations are slightly different to the others. He is able to filter his academic knowledge through the lens of the regulatory authorities and their current disputes with other institutional and business players around the world.

    One of the first problems the author addresses is the binary concepts of controller and processor. Is this division as clear-cut as when it was first postulated decades ago in European law, or it is rather a case that control is now distributed and should be regulated and applied accordingly? Has the concept of controller evolved to the degree that the explanations proposed in ‘80s and ’90s are no longer useful? How does this model work in practice?

    One may say that these are the questions posed over and over again. Be that as it may, this book will nonetheless give you a valuable historical background. It offers use cases illustrating how to understand and interpret the system which the GDPR has inherited from previous European legislation. What will be the effect of different forms of joint controllership on the level of responsibility of each of the players?

    It is sometimes surprisingly difficult to distinguish the joint controllership of the GDPR from the exchanges between individual controllers who co-operate with each other using shared resources for different purposes or using different means.

  • Models

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 13-14

  • Summary

    The flexibility model

    Legal parenthood has to remain the fundamental cornerstone of the legal regulation of adult-child relationships but should be more flexible and reflect the changes in family structures. This could mean, for example, that legal parenthood should be easier to challenge and to reallocate. This could also mean that legal parenthood should be open to homosexual couples and/or to more than two persons.

    The diversification model

    The law should develop existing alternatives or invent new alternatives to legal parenthood in order to reflect changes in families. This could mean, for example, that there should be another/some other legal status available beside legal parenthood such as a status of ’ genitor ‘or’ procreator ‘or’ social parent ’ that would be associated with a predefined range of rights and duties.

    The diffraction model

    The law should allow for a wide distribution of the specific rights and obligations traditionally associated with parenthood between several adults (parental responsibility, maintenance, contact rights and information, changing of names, inheritance, welfare benefits and tax law). This could mean, for example, that anyone should be allowed to make an application for parental responsibility, maintenance, contact and/or information in relation to a child, independently of any predefined status, and that the decision should depend on a casuistic balance of the (conflicting) interests at stake.

    The hybrid model

    A combination of a certain level of flexibility, diversification and diffraction is required to reflect the changes that occur in adult-child relationships in our postmodern societies. This would mean that none of the models proposed above is sufficient to react to the rapid evolution of family realities and that two models (at least) should be combined in order to reconstruct the legal regulation of relationships between adults and children.

  • Switzerland

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 551-582

  • Summary

    Switzerland is a federal state consisting of 26 sovereign cantons. However, the cantons'sovereignty is limited by the Federal Constitution (Bundesverfassung). According to the constitution, the confederation is responsible for legislation in the field of civil law and civil procedure law. Consequently, the legislator created the Swiss Civil Code (Schweizerisches Zivilgesetzbuch), which is to a great extent influenced by the German and French Civil Codes and has been in force since 1912. The Swiss Civil Code consists of four parts: law of persons, family law, law of succession and property law.

    Though major adaptations were made since 1912, traditional values continue to prevail within the legislation. These values are still reflected in many areas of Swiss family law. Gradually, the Civil Code is being adjusted to the changes that society has undergone. Even though the Swiss legal system is based on the civil law tradition, judicial discretion of courts, especially of the Swiss Federal Supreme Court (Schweizerisches Bundesgericht), plays an important role.

    CHANGES IN THE TRADITIONAL FAMILY

    A. MOTHERS

    1. Is maternity automatically established by the birth certificate?

    The mother is the woman who gives birth to the child. Following the Roman principle of mater semper certa est, maternity is automatically established through the act of giving birth (Art. 252 para. 1 Swiss Civil Code, CC; Schweizerisches Zivilgesetzbuch).

    Every birth must be reported (Art. 35 para. 1 Civil Status Ordinance, Zivilstandsverordnung, ZStV) and will be recorded in the civil register (Personenstandsregister). The civil register holds the following information concerning birth: place, day and time of birth, name of the child, name of the mother, and of the child's father, if known (cf. Q. 5 ff.).

    For maternity established by adoption cf. Q. 31 ff.

    2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

    No, anonymous childbirth is not recognised by Swiss law. It cannot be admissible because of the constitutional right to know your own filiation. Therefore, a woman cannot give birth in a Swiss hospital without disclosing her identity. Hospitals are legally bound to report every birth within three days (Art. 34 lit. a, 35 para. 1 ZStV).

  • Chapter 8 - Conclusion

  • from PART III - HISTORICAL-COMPARATIVE ANALYSIS
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 325-340

  • Summary

    INTRODUCTION

    682. OUTLINE – The objective of this Chapter is to synthesize how the controller and processor and processor concepts developed over time. While tracing the origin and development of both concepts, special consideration will be given to how the concepts have been used to determine the allocation of responsibility and liability. Three questions in particular shall serve as a guide:

  • (a) Does the instrument formally define who is responsible for compliance?

  • (b) How does the instrument deal with situations of outsourcing? Is there a formal recognition of agents “acting on behalf of” the entity responsible for compliance?

  • (c) How are responsibility and liability allocated? Is every actor subject to its own independent obligations? Or is a contractual approach adopted?

    • DEVELOPMENT OF THE CONTROLLER CONCEPT

    THE MEANING OF “CONTROL”

    683. ETYMOLOGY – According to Sjöblom, the term “control” was brought into the English language in the late middle ages from the French “contre-rôle”, which meant “duplicate register”. The original meaning of “control” was thus “to take and keep a copy of a roll of accounts and to look for errors theirein” or “to check or verify, and hence to regulate”. By the 17th century, “control” also referred to the nature of the relationship between the verifier and the verified, signifying “mastery” over something or someone.

    684. CONTROL IN THE CONTEXT OF COMPUTING – During the 1940s, computers were seen (and often designated) as “control systems”. For example, computers were deployed for purposes of “gunfire control” or “inventory control”. During the late 1950s, the term “control” became increasingly associated with “management control” in the context of organisational theory. In this context, the concept of “control” has been associated with the generic management process. The generic management process comprises different elements, such as

  • “(1) setting objectives;

  • (2) deciding on preferred strategies for achieving those objectives, and then

  • (3) implementing those strategies while

  • (4) making sure that nothing, or as little as possible, goes wrong”.

    • Both meanings of “control” also found their application in the context of computing and, eventually, in the context of data protection law. As Sjöblom observes:

    “[C]ontrol suggests agency – that someone is using computer-based systems to control something and achieve a certain objective […] With its undertone of domination, control helps highlight issues of power relations inherent in computer use […].”

Data Protection Law in the EU: Roles, Responsibilities and Liability
  • Volume 6
  • Brendan Van Alsenoy
  • Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019
  • EU data protection law imposes a series of requirements designed to protect individuals against the risks that result from the processing of their data. It also distinguishes among different types of actors involved in the processing, setting out different obligations for each actor. The most important distinction in this regard is the distinction between "controllers" and "processors". Together, these concepts provide the very basis upon which responsibility for compliance with EU data protection law is allocated. As a result, both concepts play a decisive role in determining the potential liability of an organisation under EU data protection law, including the General Data Protection Regulation (GDPR). Technological and societal developments have made it increasingly difficult to apply the controller-processor model in practice. The main factors are the growing complexity of processing operations, the diversification of processing, services and the sheer number of actors that can be involved. Against this background, this book seeks to determine whether EU data protection law should continue to maintain the controller-processor model as the main basis for allocating responsibility and liability. This book provides its readers with the analytical framework to help them navigate the intricate relationship of roles, responsibility and liability under EU data protection law. The book begins with an in-depth analysis of the nature and role of the controller and processor concepts. The key elements of each are examined in detail, as is the associated allocation of responsibility and liability. The next part contains a historical-comparative analysis, which traces the origin and development of the controller-processor model over time. To identify the main problems that occur when applying the controller-processor model in practice, a number of real-life use cases are examined (cloud computing, social media, identity management and search engines). In the final part, a critical evaluation is made of the choices made by the European legislature in the context of the GDPR. It is clear that the GDPR has introduced considerable improvements in comparison to EU Directive 95/46. In the long run, however, further changes may well be necessary. By way of conclusion, a number of avenues for possible improvements are presented. Dr Brendan Van Alsenoy is a Legal Advisor at the Belgian Data Protection Authority and a senior affiliated researcher at the KU Leuven Centre for IT & IP Law, and co-editor of Privacy & Persoonsgegevens. He has previously worked as a legal researcher at the KU Leuven Centre for IT & IP Law, with a focus on data protection and privacy, intermediary liability and trust services. In 2012, he worked at the Organisation for Economic Co-operation and Development (OECD) to assist in the revision of the 1980 OECD Privacy Guidelines.

  • Chapter 6 - irective 95/46/EC

  • from PART III - HISTORICAL-COMPARATIVE ANALYSIS
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 261-278

  • Summary

    ORIGIN AND DEVELOPMENT

    543. ECONOMIC RELEVANCE – On 21 November 1973, the European Commission issued a Communication regarding a “Community Policy on Data Processing”. The Communication stressed the importance of having a flourishing European data processing industry and proposed several measures designed to promote its development. Although the Communication focused primarily on economic aspects of data processing, it also noted a need to establish “common measures” to protect citizens.

    544. PARLIAMENTARY MOTIONS – In 1975, the Legal Affairs Committee of the European Parliament prepared an “own initiative” report, which contained a draft Resolution calling for a Directive on “individual freedom and data processing”. A Directive was deemed necessary not only for the protection of citizens, but also to avoid the development of conflicting legislation. The Resolution was passed, but the European Commission did not put forth any legislative proposals. The call for legislative action was repeated in 1976, 1979 and 1982. The Commission, however, preferred to await the completion of Convention 108 and then to urge Member States to ratify it.

    545. THE PUSH FOR HARMONISATION – As the 1980s progressed, it soon became clear that not all Member States were rushing to ratify Convention 108. In 1985, the European Commission published a White Paper entitled “Completing the Internal Market”, which contained a timetable of completion by 1992. The continued fragmentation of national approaches to data protection presented a clear risk to the European vision of further integration. The political push for greater harmonisation provided optimal conditions for further Community action. In September 1990, the European Commission announced a series of proposed data protection measures, one of which was a proposal for a Council Directive concerning the protection of individuals in relation to the processing of personal data.

    546. LEGISLATIVE DEVELOPMENT – The Commission proposal was met with mixed reviews. After almost two years of debate, the European Parliament published its first reading of the proposal, which contained more than 100 amendments. The Commission responded swiftly, releasing an amended proposal for the Directive six months later. The text was then transmitted to the Council, where the further progression of the document was delayed for more than two years due to a blocking minority.

  • Chapter 3 - Online Social Networks

  • from PART IV - USE CASES
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 395-466

  • Summary

    INTRODUCTION

    836. THE RISE OF OSNS – One of the most significant developments in the online environment over the past decade has been the rise of social media. More and more individuals are making use of online social networks (OSNs) to stay in touch with family and friends, to engage in professional networking or to connect around shared interests and ideas. But users are not the only ones who are interested in OSNs. OSNs have come to attract a wide range of actors, which include application developers, web trackers, third-party websites, data brokers and other observers.

    837. OUTLINE – The objective of this chapter is to analyse how EU data protection law applies in the context of OSNs. To this end, it will begin by describing the various actors engaging with OSNs and the interactions between them. Next, it will analyse the legal status (“role”) of each actor, as interpreted by courts, regulators and scholars. After that, it will describe the main responsibilities assigned to each actor. Once this analysis has been completed, this chapter will critically evaluate the relationship between the current framing of roles and responsibilities in the context of online social networking.

    ACTORS

    838. OVERVIEW – The following eight actors may be considered as being particularly relevant to online social networks from a data protection and privacy perspective:

  • OSN users;

  • OSN providers;

  • Page administrators;

  • (Third-party) Application providers;

  • (Third-party) Trackers;

  • (Third-party) Data brokers;

  • (Third-party) Website operators;

  • Other observers; and

  • Infrastructure service providers.

    • 839. VISUAL REPRESENTATION – The aforementioned actors interact with each other in a variety of ways. The following figure provides a – highly simplified – representation of how these actors typically interact with OSNs and OSN-related data. It is intended to be conceptual rather than factual.

    840. LEGEND – The arrows in Figure 4 indicate that an exchange of personal data is taking place. This exchange can be either uni- or bi-directional. Solid black arrows signify exchanges of personal data which occur primarily “in the foreground”, meaning that they can easily be observed or inferred by OSN users. They often imply some form of active involvement by OSN users (e.g. granting a permission, manually entering data, use of an application).

  • Chapter 3 - Research Questions

  • from PART I - INTRODUCTION
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 13-16

  • Summary

    15. MAIN QUESTION – The main research question of this book is the following:

    Can the allocation of responsibility and liability among actors involved in the processing of personal data, as set forth by EU data protection law, be revised in a manner which increases legal certainty while maintaining at least an equivalent level of data protection?

    16. ALLOCATION OF RESPONSIBILITY AND LIABILITY – “Allocation of responsibility” can be described as the process whereby the legislature, through one or more statutory provisions, imposes legal obligations upon a specific actor. “Allocation of liability”, on the other hand, can be described as the process whereby the legislature, through one or more statutory provisions, imputes liability or sanctions to an actor where certain prescriptions or restrictions have not been observed.

    17. ACTORS INVOLVED IN THE PROCESSING – The research question is limited to actors involved in the processing of personal data. An actor may be “involved” in the processing of personal data either by processing data for themselves, on behalf of others, or by causing others to process personal data on their behalf. The research question does not extend to other stakeholders who might influence the level of data protection, such as system developers, technology designers, standardisation bodies, policymakers, etc.

    18. LEGAL CERTAINTY – Legal certainty is a general principle of EU law. It expresses the fundamental premise that those subject to the law must be able to ascertain what the law is so as to be able to plan their actions accordingly. One of the reasons why European data protection law introduced the distinction between controllers and processors was to clarify their respective responsibilities under data protection law, thereby increasing legal certainty. Many stakeholders consider, however, that the distinction reflects an outdated paradigm, which is overly simplistic and has become increasingly difficult to apply. Some even suggested that, because of its decreased relevance and applicability, the distinction actually creates legal uncertainty. The main objective of this book is to explore ways in which legal certainty might be increased, without diminishing the legal protections currently enjoyed by data subjects.

    19. AT LEAST EQUIVALENT – The reference, in the research question above, to “an equivalent level of data protection”, refers to the protection offered EU data protection law. Within the context of this book, the substantive requirements and principles of EU data protection law (e.g. finality, proportionality, transparency) are taken as a given.

  • Chapter 3 - Typology of Solutions

  • from PART V - RECOMMENDATIONS
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 589-638

  • Summary

    INTRODUCTION

    1250. PREFACE – Over the past decade, a number of solutions have been put forward to remedy the issues that surround the application of the controllerprocessor model. The aim of this Chapter is to introduce and discuss the proposed solutions in light of the issues identified in the previous chapter. Where appropriate, additional solutions, not previously put forward, will be discussed as well.

    1251. CATEGORISATION – In order to facilitate the comparison of possible solutions in relation to the issues identified in Chapter 2, the solutions will be categorized in the same manner as the typology issues presented in the previous chapter:

  • Grammatical solutions: proposals that involve changing the words chosen to define the concepts of controller and processor;

  • Teleological solutions: proposals that present alternative ways in which the policy objectives underlying the controller and processor concepts might be realized;

  • Systemic solutions: proposals that involve modifying the implications associated with the concepts of controller and processor;

  • Historical solutions: proposals that seek to confine the scope of application of the controller and processor concepts to actors and situations envisaged by the legislature.

    • 1252. INTERDEPENDENCIES – While maintaining the categorisation above promotes consistency in presentation, it is obvious that a proposed solution might seek to address multiple issues. It is equally possible that a solution seeking to address one issue may indirectly ameliorate or exacerbate other issues, without deliberately seeking to do so. With this in mind, the potential solutions will be categorized according to the type of issue that is the focal point of the proposed solution. Where interdependencies exist, the discussion of each solution will involve an assessment of whether the solution is likely to improve or aggravate other issues.

    1253. METHODOLOGY – The solutions analysed in this Chapter have been sourced from literature concerning the application controller and processor concepts, as well as from the stakeholder responses and legislative proposals put forward in the context of the review of Directive 95/46 and run-up to the GDPR. Not every issue identified in Chapter 2, however, has been explicitly addressed by scholars or stakeholders. Where no remedy has been put forward, possible solutions will be developed in light of the lessons learned from historicalcomparative analysis and by drawing inspirations from approaches adopted by other national and international privacy frameworks.

  • Japan

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 385-416

  • Summary

    Our legal system in general, as well as family law, has been influenced by laws from continental European jurisdictions, mostly French and German laws, particularly in the drafting process of our Civil Code in the late nineteenth century.

    Our first ‘modern’ parent – child law, Civil Code of 1898, while drawing a great deal on continental European family law, nevertheless was centred on the ‘ie’ system. This literally means family or household, but rather stands for an idiosyncratic institution, that was a family law system in which a head of household enjoyed strong powers to control its members, and the status of the head of family was transferred to his eldest son, along with its patrimony. And the ‘ie’ system was not only a family system but was also a part of the Japanese political system. Namely, the relationship between the head and members within families was modelled on the dominance hierarchy between the Emperor (‘tennoh’) and his subjects. By privileging heads of family as such, the ‘ie’ system in turn legitimised the Emperor-centred political power structure, hence contributed to its stability. Besides, each ‘ie’ was charged to offer a safety net to its members against poverty and unemployment, which in effect took over the state's responsibility for social policy. Since Japan was a poor and undercapitalised nation, it might be said to serve for its economic development.

    Having said that, we must emphasise that the ‘ie’ system embraced gender inequality, and the disparity between heads of family and its members; its innate character of slighting and sacrificing individuals for the interests of groups and the nation was condemned as one of the root causes of our society having driven itself into the tragedy of World War II (WWII). After the War, the new Constitution especially established the principles of gender equality and respect for individuals, which led to the fundamental amendment of the Civil Code regarding family and inheritance – mostly the repeal of provisions inherent to the ‘ie’ system, and the removal of eminent inequality among family members.

  • Chapter 4 - Structure and Methodology

  • from PART I - INTRODUCTION
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 17-20

  • Summary

    21. OUTLINE – This book is divided into five parts, whereby each part aims to answer one or more of the research sub-questions identified in the previous chapter. The following sections will briefly elaborate upon the main topics that are covered by each part, as well as their methodological approach. Further details regarding scope and methodology can be found in the introductory chapter of each part.

    STATE OF THE ART

    22. AIM – Part II of the book will analyse the nature and role of the controller and processor concepts under current EU data protection law. The aim is to obtain a better understanding of the meaning of the concepts, as well as the functions they fulfil within EU protection law. To this end, an analysis shall be made of the regulatory scheme of EU data protection law, with special attention to (a) the definitions of controller and processor; (b) the allocation of responsibility and liability; and (c) the additional functions fulfilled by the controller and processor concepts.

    23. SCOPE – Even though the GDPR has repealed Directive 95/46, Part II still contains multiple references to the provisions of Directive 95/46. There are several reasons for doing so. First, the definitions of controller and processor contained in Directive 95/46 were incorporated by the GDPR without substantive modification. Second, most of the literature, guidance and case law interpreting the concepts of controller and processor has been developed in the context of Directive 95/46. Third, Directive 95/46 forms the backdrop against which the GDPR was developed. To properly understand the nature and role of the controller and processor concepts under the GDPR, it is necessary to understand the meaning and role of these concepts under Directive 95/46.

    24. METHODOLOGY – Part II of the book will follow an internal approach. The primary sources of analysis shall be the text of the GDPR and of Directive 95/46, their preparatory works, the case law of the CJEU and the guidance issued by the Article 29 Working Party and European Data Protection Board. Where appropriate, reference shall also be made to the preparatory works of national implementations of Directive 95/46 (e.g. the Netherlands, Belgium), as a means to clarify and supplement the insights offered by the primary sources.

  • Algeria

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 15-36

  • Summary

    Algerian family law is mainly governed by the Family Code issued by the law promulgated on 9 June 1984 and revised in February 2005. Although it is doctrinally grounded on Muslim law, this text contains several provisions that diverge from it to some degree, or that have been inspired by rules originating from the legislation adopted by French authorities during the colonial era. They can also be based on principles established by the case law developed by the courts before and after Algeria's independence in 1962. We could thus say that family law in Algeria is shaped through an ongoing evolutionary process, which is clearly apparent when one compares its content at different moments of its history.

    Thus, the provisions of family law currently in force diverge to some degree from classical Muslim law (fiqh), varying according to the matters involved. Indeed, a careful examination of the content of certain rules reveals a strong influence of contemporary legal frameworks and techniques on the work of the legislator. Nonetheless, to understand Algerian family law and its evolution, it is beneficial to situate its main provisions by relating them to the classical fiqh.

    The rules of classical Muslim law related to persons and families were created through doctrinal work rather than elaborated by a legislative body in the institutional framework of a state. Their consecration as rules of positive law was thus the consequence of the choice made by the public authority (the sovereign) of the legal doctrine (madhab) which had to be applied by the judges (qâdi) appointed to determine disputes. Today, the legislator never omits a reminder that the rules laid down in family law matters are mainly inspired by Muslim law, although numerous rules set out in official texts originate from elsewhere. Accordingly, the law still mentions that, in the absence of formal legal provisions, the judge is required to find the applicable rule in this classical literature.

    Knowledge of Algerian family law thus involves the study of texts emanating from positive law as well as works of Muslim law, taking into account the dominant doctrinal school to which the concerned persons belong.

  • Chapter 1 - Background

  • from PART I - INTRODUCTION
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 3-6

  • Summary

    1. THE ORIGINS OF DATA PROTECTION LAW – Automated processing of personal information has always been a topic of controversy. As soon as computers became visible to the general public, reflections on how computers might impact the privacy of individuals began to enter the political arena. The first data protection laws emerged during the 1970s, with the aim of protecting individuals against risks resulting from the automated processing of personal data.2 Regulatory initiatives at the international level soon followed. The first international organisation to formally adopt a normative stance in relation to the processing of personal data was the Council of Europe in 1973. In 1980, the OECD adopted its Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. In 1981, the Council of Europe promulgated the Convention for the protection of individuals with regard to automatic processing of personal data (Convention 108).

    2. INITIATIVES AT EU LEVEL – Even after Convention 108 came into effect, notable differences in national data protection laws remained. As the European Union developed, these differences were perceived as potential obstacles towards the development of the Internal Market. In 1990, the European Commission put forth a draft for a Council Directive on the Protection of Individuals with regard to the processing of personal data and on the free movement of such data. This proposal eventually led to the adoption of Directive 95/46/EC on the protection of individuals with regards to the processing of personal data and on the free movement of such data. In 2016, the Regulation of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) was adopted. This Regulation replaced Directive 95/46 and entered into application on 25 May 2018.

    3. THE IMPORTANCE OF ROLES AND RESPONSIBILITIES – As with any legal instrument, it is essential to establish not only the substantive provisions of regulation, but also to identify which actors shall be responsible for ensuring compliance. Data protection law is no different in this regard. Already in 1975, Hondius observed:

    “for an effective system of data protection it is of great importance that the role, rights, and responsibilities of the various persons and parties involved be stated unambiguously”.

  • Questionnaire

  • from PART I - NATIONAL REPORTS ON LEGAL REGULATIONS OF RELATIONSHIPS BETWEEN ADULTS AND CHILDREN
  • Edited by Jehanne Sosson, Geoffrey Willems, Gwendoline Motte
  • Book:
    Adults and Children in Postmodern Societies
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 7-12

  • Summary

    CHANGES IN THE TRADITIONAL FAMILY

    A. MOTHERS

    1. Is maternity automatically established by the birth certificate?

    2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

    3. If any kind of ‘anonymous childbirth’ is recognised, what rights does the

    natural mother have in respect of the child?

    4. In thesamesituation, what are the child's rights in respect of the natural mother (and her other children)?

    B. FATHERS

    5. Is paternity automatically established by way of a presumption? If yes, does

    the presumption only apply within marriage?

    6. If paternity is not established by way of a presumption, how can it be established?

    7. If legal paternity is established, can it be challenged, in particular by a man who claims to be the biological father?

    8. What rights does a biological father who is not the child's legal father have?

    9. What are the rights of the child as regards his or her biological father if the latter is not the child's legal father (and as regards his other children)?

    C. CONSEQUENCES OF LEGAL PATERNITY AND MATERNITY

    10. What rights and obligations exist between legal parents and their child as an automatic consequence of the establishment of legal paternity/ maternity?

    11. Do children have rights in relation to their parents’ intestatesuccession?

    Do they have a right tosucceed to a reservedshare of their parents’ estate?

    If not, are there other mechanisms in place to protect children's interests?

    LEGAL RELATIONSHIPS IN THE ENLARGED FAMILY:

    GRANDPARENTS AND SIBLINGS

    12. Do people other than the father and mother have rights or duties towards children? What kind of rights and duties?

    EMERGENCE AND DEVELOPMENT OF ARTIFICIAL

    REPRODUCTIVE TECHNOLOGY

    A. AUTHORISED TECHNIQUES

    13. Are IVF and egg,sperm or embryo donation authorised?

    14. Issurrogacy authorised?

    INTENDED PARENTS

    15. Who has access to ART (artificial insemination and IVF)? What conditions must be fulfilled beforesuch a process can begin?

    16. Who is able to accesssurrogacy? What conditions must be fulfilled?

  • Chapter 6 - Specific Issues

  • from PART II - STATE OF THE ART
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 117-140

  • Summary

    217. PROBLEM STATEMENT – Article 4(7) GDPR defines a controller as being a “natural person, legal person, public authority, agency or other body”. The definition thus refers to a broad range of subjects, ranging from natural to legal persons and including any “other body”. In practice, the question may arise whether an individual within an organisation should be considered as the “controller”, or whether instead this role should be attributed to the organisation of which he or she is a part. According to the Article 29 Working Party,

    “preference should be given to consider as controller the company or body as such rather than a specific person within the company or the body. It is the company or the body which shall be considered ultimately responsible for data processing and the obligations stemming from data protection legislation, unless there are clear elements indicating that a natural person shall be responsible. In general, it should be assumed that a company or public body is responsible as such for the processing activities taking place within its realm of activities and risks.”

    218. RELATIONSHIP WITH OTHER AREAS OF LAW – In Opinion 1/2010, the Working Party emphasizes that it is important to stick as closely as possible to the rules established by other areas of law, such as civil, administrative and criminal law. These rules indicate to what extent individuals, organisations or other bodies may be held responsible and will in principle help to determine which actor should be labelled as the “controller”. The following paragraphs will briefly look at the civil and criminal liability of organisations – and the individuals working on their behalf – from the perspective of Belgian law.

    219. LIABILITY FOR AUXILIARIES AND AGENTS – Article 1384, subsection 3 of the Belgian Civil Code (C.C.) provides that masters and principals are liable for damage caused by their servants and appointees (“auxiliaries”). For Article 1384, subs. 3 to apply, the following three conditions must be met:

  • a) there must be a relationship of subordination between the principal and the auxiliary;

  • b) the auxiliary must have committed a fault (i.e. negligence or unlawful act); and

  • c) the fault must have been committed in the course of the service for which the auxiliary has been enlisted.

    • Article 1384, subs. 3 C.C. is generally applied to hold employers (and legal persons more generally) vicariously liable for actions of their employees and other subordinates.

  • Chapter 2 - Typology of Issues

  • from PART V - RECOMMENDATIONS
  • Brendan Van Alsenoy
  • Book:
    Data Protection Law in the EU: Roles, Responsibilities and Liability
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    29 March 2019, pp 557-588

  • Summary

    INTRODUCTION

    1174. PREFACE – Part IV of this book demonstrated that applying the concepts of controller and processor can be difficult in practice. Practitioners often disagree as to whether an entity should be considered a controller or processor, or struggle to make an unambiguous determination. The objective of this Chapter is to provide a structured overview of the main issues that emerge in practice. To this end, a typology of issues shall be developed which categorizes the issues identified in Part IV and presents them in a structured manner.

    1175. CATEGORISATION – The typology of issues shall be structured according to four traditional methods of legal interpretation, namely: (1) grammatical; (2) teleological; (3) systemic; and (4) historical. The chosen methods were retained simply because they are the methods of legal interpretation that have been relied upon – either explicitly or implicitly – by scholars, regulators and courts when evaluating the use cases documented in Part IV. Applying this categorisation, the following typology of issues can be developed:

  • Grammatical issues: issues that concern the words chosen to define the concepts of controller and processor;

  • Teleological issues: issues that concern the policy objectives that underlie the allocation of responsibility and liability between controllers and processors;

  • Systemic issues: issues that arise in light of the functions fulfilled by the controller and processor concepts within the regulatory scheme of EU data protection law; and

  • Historical issues: issues that arise when applying the regulatory framework of EU data protection law to situations which were not envisaged by the European legislature.

    • 1176. JUSTIFICATION – The development of a typology of issues according to traditional methods of legal interpretation is motivated by the assumption that conflicts of interpretation, as well as interpretative guidelines provided by courts and regulators, can help to uncover the main issues at stake.

    1177. LIMITATIONS – The utility of the exercise undertaken over the following sections is predicated on the assumption that the selection of use cases analysed in Part IV offers a sufficiently representative account of the main issues that arise when applying the controller and processor concepts in practice. In other words, there can be no pretence at being exhaustive. Be that as it may, the analysis of proposals put forward by different stakeholders suggests that the typology of issues presented here is rather comprehensive.

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