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Differential Data Protection Regimes in Data-Driven Research: Why the GDPR is More Research-Friendly Than You Think
- Giovanni Comandè, Giulia Schneider
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- Journal:
- German Law Journal / Volume 23 / Issue 4 / May 2022
- Published online by Cambridge University Press:
- 26 May 2022, pp. 559-596
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Against the backdrop of an evolving landscape describing data driven research, this article discusses the role of data protection laws in shaping a free flow of research data. In particular, the analysis inquires whether European data protection law hampers or encourages data-driven research. The analysis critically challenges the shared belief that the more severe data protection regime laid down by the European legislator adversely affects data flows and with that data-driven research. This is contrary to what occurs in the United States, where the more fragmented and less developed data protection framework facilitates data flows and related innovation patterns. We show how research objectives through data re-usability have been very recently given primary importance in the GDPR, where they find a formidable ally enabling the re-usability of public data by businesses and of private data by public institutions, for either public interest-related research purposes or commercially oriented innovation purposes. We argue that the GDPR differently promotes research-valuable data flows in consistency with an emerging principle of free movement of personal data. In order to ground this statement, our analysis links to this principle three-directional research regimes emerging from the GDPR.
Italy
- Edited by Israel Gilead, Bjarte Askeland
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- Book:
- Prescription in Tort Law
- Published by:
- Intersentia
- Published online:
- 22 December 2020
- Print publication:
- 14 August 2020, pp 413-448
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Summary
INTRODUCTION
Prescription is a legal arrangement linking certain legal effects to the passage of time: specifically, in civil law it indicates the phenomenon whereby a subjective right is extinguished if its holder does not exercise that right within a legally-prescribed amount of time. The standard's purpose is to preserve the predictability of legal relations.
The roots of prescriptions are found in ancient roman law. Already during the Roman Republic (between 509 bc and 27 bc) Pretors had imposed time limits for the exercise of the formulae (the‘procedura formulare ‘). Yet a general legal framework can be found only in the era of Justinian (527 ac– 565 ac) when the principle of longi temporis praescriptio is upheld. Such a framework was incorporated in Italian law by the civil code of 1865 (CC)– art 2105 –, proposing a unitary definition of the institute of prescription that combines both the so-called acquisition and the extinctive model. The civil code of 1942 in force– arts 2934 ff– adopts this distinction, translating the acquisition model in the institute of usucapione (acquisition of property by prescription) and the extinctive model into the generic institute of prescription. After the entering into force of the Republican constitution of 1948, the constitutionality of the institute of prescription was raised; specifically, it was assumed to be incompatible with existing constitutional rights. However, the constitutional court decision of 10 June 1966, n 63 confirmed its constitutionality as a means to ensure the legal certainty, which involves any right, including constitutionally guaranteed ones.
DEFINITION OF PRESCRIPTION
In Italian law, the limitation period is governed by arts 2934 ff of the civil code. It is defined as an extinction of rights resulting from the failure to exercise them within a period of time prescribed by law. Italian law, privileging the certainty of legal relations, requires rightholders to exercise their rights within a set time frame, and continued disinterest in exercising one's rights justifies the rights‘extinction.
The civil code regulates the period of prescription: unless the law provides otherwise, the‘ordinary‘prescription period is ten years: rights not exercised within ten years will be automatically extinguished (art 2946 CC).
Italy
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- By Cristina Amato, Professor of Comparative Law, University of Brescia, Italy, Giovanni Comandé, Professor of Comparative Law, Sant'Anna School of Advanced Studies, Pisa, Italy
- Edited by Miquel Martin-Casals
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- Book:
- The Borderlines of Tort Law
- Published by:
- Intersentia
- Published online:
- 15 November 2019
- Print publication:
- 29 August 2019, pp 281-330
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Summary
QUESTIONS
TRACING THE BORDERLINES
A. DISTINCTION BETWEEN TORT AND CONTRACT
The distinction between tort and contract in the Italian legal system can be explained as follows.
1) Contractual Liability
The nomen iuris defines the obligation to pay compensation for damage resulting from the non-fulfilment of a pre-existing agreement (hereinafter: obligation), leaving out of consideration whether or not the origin of the agreement is the contract. Indeed, scholars, instead of referring to contractual liability, frequently refer to the breach of a pre-existent duty.
Contractual liability is based on the general provision of art 1218 of the Italian Civil Code (It cc), founding liability of the debtor on his/her objective fault in failing to fulfil a contractual obligation, within the limits of force majeure and act of God.
Italian law includes a special set of rules to regulate some contractual types (so-called typified contracts) either under art 1470 ff It cc or under special statutes. Within the limits of the law concerning any contract, one can face specific provisions as regards contractual liability that integrate the general rule provided for by art 1218 It cc.
2) Non-Contractual/Tort Liability
Liability arising in the absence of a contractual relationship is liability in tort: it is an unlawful action, a wrong that causes damage that shall be compensated. The unlawful action is the direct source of the duty to compensate damage.
Liability in tort is supported by the general clause of liability for fault under art 2043 It cc.
Italian law provides for special rules for tort liability caused both by the wrongdoer's own actions and by the action of a third party for whom he/she is liable. These rules are governed either by the Civil Code (art 2049 ff) or by special statutes (ie the Law on Product Liability, Decreto Presidente della Repubblica: d PR no 224/1998, now arts 114 ff Consumer Code; or the Law concerning Liability for Nuclear Damage, 31 December 1962, no 1860, as modified by the d PR 10 May 1975, no 519).
To sum up: the original frame of the Italian Civil Code organises non-contractual liability as a special kind of liability, regulated at the end of the fourth book devoted to the law of obligations.
Italy
- from PART I - PUBLIC AUTHORITY LIABILITY OUTLINED
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- By Giovanni Comandé, Professor of Private Comparative Law, Scuola Superiore Sant'Anna, Pisa, Italy, Luca Nocco, Postdoctoral Researcher, Scuola Superiore Sant'Anna, Pisa, Italy
- Ken Oliphant
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- Book:
- The Liability of Public Authorities in Comparative Perspective
- Published by:
- Intersentia
- Published online:
- 27 November 2017
- Print publication:
- 26 October 2016, pp 251-294
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Summary
INTRODUCTION
OVERVIEW
The application of private law rules against the State or, in more precise terms, public administrations, is historically an issue widely debated in Italian law.
This topic can be read along the lines of two dichotomies, that is between civil law and administrative law, on the one hand, and between the jurisdiction of ordinary courts and the jurisdiction of administrative courts, on the other.
With reference to the former, at the end of the nineteenth century, the legal literature was divided between the thesis concerning the applicability of the rules of private law to public administrations and the opposite reconstruction according to which the logic of private law was not suited to solve the problems of administrative activities, including those arising from participation in an illegal activity by a public administration.
The application of ius priva torum sprang from the idea, prevalent at that time, of the supremacy of the civil code. On the other hand, it was precisely the wider range of legal relations of public administrations that induced the idea of dismissing the centrality of the Civil Code and of its ability to provide exhaustive answers to the needs of justice originating from society.
With the aim of avoiding the possible creation of spheres of privilege or immunity for various public administrations, the application of the general rules of private law was advanced as a solution. Still to this day however, we have to admit that the issues concerning which rules to apply in such situations has not been fully resolved.
The nature of the general clause of art 2043 of the Civil Code (CC) is generally agreed upon and therefore attempts to establish the liability of the public administration beyond the boundaries of the Civil Code have not been successful. Nevertheless, the fact that the Italian legal system is based on the distinction, unknown in most other legal systems, between diritti soggettivi (‘legal rights’ which are vested rights typically applicable to juridical relations between individuals) and interessi legittimi (‘legitimate interests’, ie the typical legal protection granted to each citizen against the public administration) blocked, until 1999, full protection against the public administration.
Italy
- from Part II
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- By Giovanni Comandé, Scuola Superiore Sant'Anna, Pisa, Italy
- Edited by Piotr Machnikowski
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- Book:
- European Product Liability
- Published by:
- Intersentia
- Published online:
- 15 December 2017
- Print publication:
- 02 August 2016, pp 275-310
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Summary
SOURCES OF LAW AND THEIR EVOLUTION
REGULATIONS FOR PRODUCT LIABILITY THAT EXISTED PRIOR TO THE IMPLEMENTATION OF DIRECTIVE 85/374/EEC
When Directive 85/374/EEC was adopted many legal systems had already implemented a specific regime for product liability. In the Italian system, in the absence of specific legislation, scholars and courts have attempted to overcome the gap by resorting to contractual or tort liability and in particular that of the seller for damages resulting from defects (art 1494 of the Civil Code (CC)). These rules soon proved insufficient to ensure full and effective protection: liability for defects can only be enforced against the assignor within the short period of limitation and forfeiture referred to in art 1495 CC, and can be countered by the seller proving the absence of fault. In fact, the seller can easily claim to have in good faith ignored the defects of packaged goods sold by the manufacturer, meaning that the manufacturer is therefore the only person required to ensure the quality and safety of products put on the market.
The application of liability for defects in the sale contract excluded the possibility of a direct action against both the manufacturer and the first seller. It also prevented a claim by a third party who had not been involved in the negotiation of the contract.
Some authors have tried to solve the problem by configuring the liability of the manufacturer as a case of pre-contractual liability, based on the obligation to protect towards any individual intended to come into contact with the product once it has entered the production chain.
In a second step, scholars and judges tried to expand the effectiveness of the compensation for damages caused by a defective product, assigning liability for the harm caused directly to the producer (or, in general, to those involved in the production chain other than the final seller). In the absence of specific legislation that is able to provide the level of protection required in the case of damage caused by a defective product, courts and scholars have tried to shape the rules of civil liability in order to better protect consumers’ needs.