Law and Information

Recently, Markus Kummer, head of the Working Group on Internet Governance (WGIG) for the World Summit on the Information Society, visted the Berkman Center. I was asked and had the pleasure to speak for three minutes about Internet regulation by law (vs. technology, markets, or social norms.) Here is my three-minutes take on it:

In the past 12 years, much of what we call today the Internet Governance debate has been about the question whether governments and national legislators shall step in to regulate human behavior on the Internet. Ideal-typically, one might distinguish between two positions at the ends of a spectrum of opinions about Internet regulation by law:

On the one end, we have John Perry Barlow and friends, arguing that cyberspace does not lie within the borders of governments. The representatives on this end of the spectrum - the cyber-exceptionalists - argue in favor of a laissez-faire approach.

The representatives of a legalistic approach to Internet regulation, by contrast, perceive the Internet as a subject of regulation that is not different from any other technological phenomena. Under this approach, governments and parliaments are obliged to address Internet governance issues and regulate cyberspace by East coast code.

A fair amount of literature and many conferences, workshops, panels, etc. have played out these and other approaches and have explored alternative modes of regulation beyond law. And, of course, regulatory history provides evidence that there is middle-ground, too.

However, only occasionally we have read comprehensive theoretical analyses about “law” in cyberspace as such. In other words: Much less attention - especially in the United States, but also abroad - has been paid to the fact that law itself is a multi-dimensional mode of regulation. Why multi-dimensional? Because both at the national and international level law provides an entire set of regulatory strategies, ranging from mandatory regimes to approaches aimed at cooperation (soft law), ex post (therapeutic) versus ex ante (preventive) legislation, instrumental versus symbolic legislation, etc. Moreover, law provides a variety of regulatory instruments such as substantive requirements, prozeduralization of law, provisions working with financial incentives, aimed at education or information, and so forth. Law is also multi-dimension with regard to the forms of regulation, the density and intensity of regulation, etc.

Further, it strikes me that we have not discussed thoroughly enough what the different functionalities of law are - even in the realm of “free cyberspace.” In my perception, cyberlawyers have a long-standing tradition to understand law as a constraint on human behavior. But law can be more than a mere constraint. In fact, law does often have an “enabling function” and a “leveling function,” too. Moreover - and these characteristic are particularly important in the context of global governance vis-�-vis the global reach of the Internet - law-making (including soft-law-making) provides opportunities for participation and representation, provides structured fora and discursive processes to articulate and address regulatory issues und legitimate concerns.

In short, we should make very clear that (cyber-)law is not - or at least not necessarily - a simplistic intervention mechanism aimed at constraining human behavior and limiting freedom, but has much more to offer, both at the national and international level. In any event, to get the balance right, to apply the legal toolset with good judgment, and to avoid regulatory pitfalls remain the big challenges for all of us.

As promised, here’s another translation/summary of Jean Nicolas Druey’s work on the “information overload” (published as: “Daten-Schmutz” - Rechtliche Ansatzpunkte zum Problem der �ber-Information, in: Festschrift zum 65. Geburtstag von Mario M. Pedrazzini. - Bern, 1990. pp. 379-396.)

Druey introduces the article on pp. 379-380 with some general thoughts about the emergence of the information society and the increasing awareness of information as a building block of our society, our lives, etc. He argues that the “information age” must also have an impact on the legal system, not only because we face the emergence of new problems, but — more fundamentally — because law is itself information. However, Druey claims that legal scholars haven’t thoroughly reflected the legal ramifications of the information phenomenon. One exception, according to Druey, is data protection law (in German: Datenschutz. Please note that the title of the article: “Daten-Schmutz,” plays with words. In German, “Daten-Schmutz” sounds almost like “Datenschutz,” but it means something entirely different: Schmutz is smut, i.e. data-smut.)

On p. 380, Druey outlines the fundamental legal problems related to information. He starts with the notion that law is aimed at conciliating opposing interests. Traditionally, opposing interests in information were related to situations where one party was eager to get information about something, but the other party had an interest to keep this information (knowledge) confidential — or at least not to communicate it. The focus of attention in the past, according to Druey, was thus on confidentiality, secrets, and the like. In more recent times, however, the emphasis has shifted: The emergence of the information society is accompanied by the creation of a great number of “information rights”, i.e. rights to get information from other individuals, but also from governments (UG: one might think about the freedom of information act).

Less much attention, however, has been paid to the fact that the structure of interests might be reversed: Consider a person who has information and wants to be heard. Is there a right to be heard? On the other side of the same coin: A person who is *not* informed might have an interest that the information channel remains closed, i.e. that he does not have to receive information.

Thus, the basic conflicts in information law might be mapped as follows (matrix), p. 381:

I. Interested Party

a) Informed Party | b) Non-informed Party
|
c) in information = access rights | = Right to information (disclosure rules)
|
II. Interest —————————————————————————————–
|
d) in non-
information = Confidentiality laws | = Protection against info.
|

This graph suggests an ambiguous nature of information. We are used to think about information as a positive value, and, in fact, the traditional conflicts — i.e. confidentiality and right to information — are based on this assumption. But the viewpoint that someone might have an interest in being protected against information makes it clear that information might also have a negative value. Druey acknowledges that this notion of “negative value of information” is counterintuitive and against our common sense understanding. He argues that the positive notion of information we generally apply describes an ideal world, because we generally neglect that information must be processed at some costs. Druey argues that this ideal situation is not an accurate description of reality, since information needs always to be processed and because information might even be counterproductive due to the possibility that a given receiver draws wrong conclusions based on it (p. 381).

On p. 382, Druey turns to the problem of information overflow. The situation of opposing information interest under this scenario is obviously connected to the forth quadrant ( “protection against information”) of the above matrix. On p. 382/83, Druey outlines a “Postulate of Information Ecology”. He starts with a brief description of the problem of information overload from a rather subjective perspective and some narratives. Then, he turns to the question how the problem of information overload can be addressed. On p. 382, he distinguishes between three approaches: First, the receiver has to learn to live with information overload, has to improve her information selection and processing capabilities, competences, etc. Second, it is crucial that intermediaries (media, but also teachers, consultants, etc.) step in and pre-select, pre-process, translate, customize, … information. However, in many situations the only solution might be to reduce the activity level of the sender (source). The third aspect is the one Druey will be focusing on for the remaining part of the article.

Druey argues that the necessity to develop strategies against information overload that apply to the sender/source derives from the distinct nature of information if compared to goods. If too much goods are distributed, the resulting problem is one of “wasting resources” and “waste disposal”. Information, in contrast, that is redundant limits the attentiveness of the receiver at the costs of information that has probably a higher relevance. This goes back to the characteristic of information that its relevance can only be assessed once it has been consumed. Druey concludes (p. 383): The greater the information supply, the greater the risk to choose irrelevant information and ignore the relevant. In sum, Druey argues that too much information is not only a waste of resources, but does harm, and that the selection cannot be delegated to a market, but creates a responsibility of the sender. (Later, he gets back to the notion that market cannot solve the selection problem.) Druey acknowledges that the idea of a sender responsibility with regard to “too much information” has not been an issue in law. However, he argues that there are at least some examples or precursors where law aims to limit the dissemination of information to serve different (!) interests than the classic secrecy/confidentiality interests. The first example (p. 384-87) concerns the therapeutic privilege, i.e. a situation, “in which the physician may be excused from disclosing information to a patient when there is sufficient evidence that the patient is not psychiatrically or emotionally stable to handle the information, that the disclosure of information itself would pose serious and immediate harm to the patient, such as inducing some physiologic response such as a heart attack or prompting suicidal behavior.” (Source: http://sprojects.mmi.mcgill.ca/ethics/definitions.htm.) Druey takes from this example that duties to inform are not always qualified to bridge lack of trust. Rather, these duties — and the exercise of them — are themselves part of the trust relation.

Second, Druey looks at information bans in antitrust law (pp. 387-390). Here, it might be enough to say that Druey uses a U.S. antitrust case to develop the argument: United States v. Container Corp. of America, 393 US 333 (1969). In essence, Druey argues that markets need information. Thus, market transparency is a prerequisite for the competitive markets and their regulatory effects. However, there are circumstances in which competition is inhibited where information is disclosed, because market participants are adjusting to the behavior of others that has become public. Here, Druey uses Container Corp. to make the point. Druey argues that the ambiguous nature of information (”it is good, but not always”) makes it difficult to make choices, because the question whether information is good or bad heavily depends on factors such as the structure of the market (Druey refers to Justice Douglas’ opinion in Container Corp.). The problem that too much information may create the problem of hugely coordinated behavior is also evident in cases where reactions to rather limited stock exchange crashes lead to fatal chain-reactions and global crisis. As a consequence, Druey suggests that information limitations and delays in information processes might be instruments to stabilize order.

Third, Druey explores consumer protection laws which often stipulate disclosure rules (pp. 390-392). Druey argues that the enormous amount of information available to consumers might result in an overload with the unintended consequence that consumers turn back to “simple” messages, e.g. presented in TV spots, etc. However, he thinks that intermediaries might help, e.g. organizations testing products and publishing rankings of certain categories of products, etc. In any event, Druey argues (p. 392) that it does not solve all the problems just to put intermediaries in place. Rather, the selection problem is simply delegated from the receiver to the intermediary. Thus, the receiver loses autonomy. Moreover, if the decision about information shifts at a large scale from individuals to intermediaries — often market players –, it might affect the market itself.

Fourth (pp. 392-395), Druey looks at limitations of information in the interest of culture and education. In this section, he argues that the concept “free flow of information” as a policy principle does not work, because the capacities to absorb and process information are limited, and because the selection of the best information cannot simply be delegated to the market mechanism. Thus, it is not appropriate to implement “free flow of information” as a policy principle and to let the individual alone with the overwhelming amount of information. Rather, the state has some responsibility to put mechanisms in place to address the problem of over-information of its citizens. Druey makes clear that these arguments are not advocating censorship or the like. He simply argues that the principle “let information flow” is not the solution to a complex problem. One of the most important sentences, in my opinion, is written on p. 394. Druey concludes: “It is one of the tasks of the law to design a system of intermediaries, which guarantees a *relative* maximum of freedom to send, but also receive information.”

In his conclusion (p. 395/6), Druey argues that it is crucial to understand - also from a legal perspective - that we must care about an optimum, not a maximum level of information. Moreover, he summarizes the problem of information overflow as follows: The problem, generally speaking, goes back to the phenomenon that a given receiver over-estimates the importance of a single piece in relation to another piece of information. This phenomenon results from the fact that the receiver is swamped with the selection of information. As a consequence, certain limitations of information flows by law are not against freedom of information/free speech (to be understood as the supply of information to satisfy the information needs of individuals as-best-as-possible). Rather, such limitations might even be required to achieve this freedom (p. 396). Finally, Druey emphasizes that — in the best case — we’re in the process of identifying the problem of information overload, but that we are far away from having any adequate solutions to it. Certainly, however, we reach the limits of what law can and shall do.

The Swiss Federal Government has been working for more than four years on a partial revision of the Swiss Copyright Act to bring it in compliance with the WIPO Copyright Treaties. Recently, the Federal Council requested the Federal Department of Justice and Police to carry out a consultation regarding the draft of the copyright law revision. The pre-draft of the amendments has been published in German, French and Italian, but – unfortunately – not in English. The draft, among other issues, suggests controversial provisions on the protection of technological measures such as copy and access control technologies, aimed at implementing Art. 11 WCT and Art. 18 WPPT.

In the context of an ongoing research project at the Berkman Center for Internet & Society at Harvard Law School and the Research Center for Information Law at the University of St. Gallen, I translated the relevant parts of the pre-draft on technological protection measures:

“Title 3a: Protection of technological measures and of rights-management information

Art. 39a (new) Protection of technological measures

1 Technological measures for the protection of works of literature and art in terms of Article 2 as well as the protection of subject-matter according to the Third Title may not be circumvented until the expiration of their respective copyright terms.

2 Protected against circumvention are technologies and devices such as access and copy controls, encryption, scrambling or other transformational mechanisms applied by the rightholder or the exclusive licensee, respectively, in order to prevent or restrict unauthorized acts in respect of works and other subject-matter.

3 Prohibited are the manufacture, import, offer, sale or other distribution, rental, extension of use to others, the advertisement for sale and the possession for commercial purposes of devices, products or components as well as the provision of services, which:

a. are the subject of sales promotion, advertisement or marketing for the purpose of circumvention of technological measures;

b. have only a limited commercial purpose or use other than the circumvention of technological measures; or

c. are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of technological measures.

4 The prohibition of circumvention cannot be enforced against persons who undertake the circumvention for the sole purpose of a statutorily permitted use.

Art. 39b (new) Obligations of Users of technological measures
1 Any person who protects works or other subject-matter by technological measures shall:

a. declare in a clearly visible manner the properties of the measure and the identity of his person;

b. make arrangements, upon the request of a person who has lawful access to the protected subject-matter, in order to enable that person to make use of the subject-matter as permitted by law.

2 Paragraph 1(b) does not apply to full or extensive copies of works available on the market.

3 Any person who breaches the obligations imposed by Article 1 has no entitlement to the protection afforded under Article 39a.

4 The Federal Council can enact further rules regarding the application of technological measures in the field of copyright protection if it is required by the public interest.

Art. 62 para. 1 introduction and 3 (new)
1 Any person whose copyright or related rights are infringed or jeopardized or whose rights in regard to the protection of his technological measures or rights-information management are violated or jeopardized, can demand from the court :
…

3 Any person who is not successful with a request according to Article 39b paragraph 1(b) can petition a court to oblige the user of technological measures to accede to the claim.

Art. 69a (new) Infringement of the protection of technological measures and rights-management information

1 Upon the request of the person harmed with respect to the protection of technological measures or rights-management information, any person shall be subject to imprisonment for up to one year or a fine who intentionally and unlawfully:

a. circumvents technological measures according to Article 39a paragraph 2 with the intention of making unauthorized use of the work or other subject-matter, or to enable its use by someone else;

b. manufactures, imports, offers, sells or otherwise distributes, rents, makes available for use or possesses for commercial purposes devices or products that primarily serve for the circumvention of technological measures according to Article 39a paragraph 2;

c. offers or provides services to circumvent technological measures according to Article 39a paragraph 2;

d. promotes means or services for the circumvention of technological measures according to Article 39a paragraph 2;
…

2 If the offender acts in a professional capacity, then he or she will be prosecuted ex offcio. The punishment shall be imprisonment of up to three years or a fine.
…”

Once more, I owe thanks to my colleague and friend James Thurman for editorial advice.

MSNBC and others report that the music and movie industry are appealing to the U.S. Supreme Court to overturn the 9th U.S. Circuit Court’s Grokster ruling. Here we go again: Cert.?

According to Lyman and Varian’s How much Information 2003? study, print, film, magnetic and optical storage media produced roughly 5 exabytes of new information in 2002 (five exabytes of information is equivalent to the information contained in 37,000 new libraries the size of the Library of Congress book collections.) According to the study, almost 800 MB of recorded information is produced per person each year, equivalent to 30 feet of books if this information was stored on paper.

Moreover, the information society is developing rapidly. Rapid change, in turn, is accompanied by an increase in the information needed to keep up with those developments. Against this backdrop, it comes not as a surprise that “information overload” has been identified as one of the problems of our society. Psychologist use terms such as “information fatigue syndrome” to describe the symptoms resulting from information overload, while representatives of other disciplines focus on ways how to deal with it.

Information overload has been subject to various studies and research programs. Interestingly, however, legal scholarship – itself exposed to the information problem – has not been engaged in this debate. A prominent exception is Jean Nicolas Druey, Professor em. at the University of St. Gallen, Switzland. In a seminal book on “Information as a Subject of Law” (in German, “Information als Gegenstand des Rechts,” Schulthess: Zurich & Nomos: Baden-Baden, 1995) and in an article, he has addressed the phenomenon of information overload from a legal perspective.

Since it’s one of the purposes of this weblog to build a bridge between U.S. and European scholarship in information law, I decided to translate and summarize Druey’s study on information overload. The idea goes back to my colleague Derek Bambauer’s interest in Druey’s approach. Derek is working on a paper on Spam, where he applies an information-policy approach. I’d like to thank him for the ongoing discussion of this and other issues. In this post, I translate and summarize the discussion as presented in Druey’s book. In a next post, I will talk about the article, in which Druey explores the issue in depth.

Druey addresses the phenomenon of “information overload” (in German: “Ueberinformation”) in the context of a broader discussion aimed at demonstrating that information as such – contrary to the mainstream opinion that “more information is better” – does not have an intrinsically positive value. Rather, information is neutral in nature, since it can not only have a positive, but also a negative value, e.g. in case where information lacks quality, has an immoral purpose, or is redundant.

With regard to the third aspect, i.e. information overload (”Ueberinformation”), Druey claims that the problem “information overload” has not sufficiently been analyzed in the different areas of research. He argues that this lack of analysis goes back to the common information theory (Shannon, Weaver) approach to information, which conceptualizes “information overload” as a problem related to the “channel” rather than human beings.

Why is too much information a bad thing? In essence, Druey argues that “overproduction” and “oversupply” of information is a waste of resources. First, in the case of a priest who’s preaching in church without audience, for instance, we have the problem that information is presented at some costs without reaching receivers. Second, too much information is clogging our capacity to receive and process information. In both cases, the problem boils down to a suboptimal usage of potentially useful information on the one hand and unnecessary costs/expenses on the other hand. Third, and even more importantly, the increasing amount of information and data leads to an increasing risk that the wrong information is selected (”wrong selection of information”, p. 69). Druey argues that, consequently, the competition over the scarce resource “attention” (or better “attentiveness”) has a negative feedback-effect on the quality level of information itself (Druey uses the example that an overview of the literature in a particular field aimed to address the problem of “too much information – lost overview” itself contributes to the problem it seeks to solve by adding another piece of information.).

This problem of “wrong selection of information” has first and foremost a negative impact on decision making processes. A citizen, who has his head full of sport news and results, is not necessarily in a good shape to make political decisions (to vote, for instance.) This example, according to Druey, illustrates that the phenomenon “information overload” may not only affect the receiver in a negative manner, but may also have negative effects on other interests and stakeholders. In fact, “information overload” may also infringe the interests of senders in cases where an important/relevant information gets stuck in the blockage. Moreover, information overload may also affect “institutions” which heavily depend on the flow of relevant information (”the major communication problem is information overload”, quotes Druey a scholar in the field of organization theory [Everett M. Rogers/Rekha Agarwala, Communications in Organizations, New York 1976, p. 90]).

But too much information does not only harm information processes. In cases where information is used in order to “regulate” (in a broad sense of the term) certain social mechanisms and processes, “too much” might do harm. Druey refers to the “market” as an example. Total information would kill market dynamics. It’s about an optimum of information, not total information or complete transparency. At the same time, “non-information” may have a limited effect on the general activity level, which, in turn, might be the source of order. This thought is connected to the concept of equality. Equality has something to do with making issues more abstract, to abstract from detailed information (e.g. not to consider information about race, gender, …). The willingness to be governed under a particular regime heavily depends on “not-to-know” (Druey refers to Rawls’ “veils of ignorance”.)

Druey concludes (p. 70) that these examples and arguments suggest that information as such – regardless of the quality of a given piece of information – might be contra-productive from the viewpoint of a receiver. Further, Druey concludes that the discussion has demonstrated that the buzzword “information overload” has two aspects: a quantitative (”too much”), but also a qualitative aspect. The qualitative aspect becomes visible in the context of the above mentioned processes/procedures, which may require the retention of certain information. Druey argues in another chapter of a book that this need for “dosing information” in order to ensure certain processes/procedures is the reference point for certain forms of legal secrets (e.g. protection of trade secrets.)

On p. 135, Druey comes back to the issue of information overload when he discusses a “right against information” (in the sense of a “right not to receive information” as an aspect of informational freedom emerging.) He argues again that the harm of “too much information” is to be seen as the costs associated with the fact that a receiver cannot receive potentially relevant information because he is cognitively “clogged” with information that might not be at the core of his informational interests. Addressing the question of responsibility in the legal sense, Druey argues that the law has not yet been responsive. The threshold that triggers liability is extremely high in the case of information overload compared, for instance, to other cases of negative information (e.g. in the case of misadvise.) A basis for a claim might be seen in contractual obligations, but beyond that, law has not developed remedies to address the problem “information overload”. Thus, and that’s Druey’s conclusion, law has to refer to other solutions (regulatory modes) to regulate the problem. Since there might only exceptionally be an “individual right against information”, law must trust in the regulatory power of filters. Filtering functions are conducted by media, teachers, as well as interest groups, and the like. Druey emphasizes in footnote 16 on p. 137 that media –in the broad sense of the term, i.e. as “informational transformers” – are key to address the issue at stake. Media’s function, according to Druey, is to mix “fire” with “water”, i.e. to harmonize a subjective with an objective approach to (active and passive) information needs.

To be continued.

IFPI announced today that it has launched a new series of legal actions against allegedly illegal file-sharers in Europe. According to IFPI’s press release, the music industry – roughly seven months after the first big wave – takes for the first time actions against uploaders in Europe’s two largest music markets, the UK and France. Similar legal actions are being brought in Italy, Denmark, Germany, and – another premier – in Austria. Today’s second wave brings the total number of cases – both criminal and civil suits – in Europe to more than 650.
Some of the details are interesting: While the Italian Parliament recently enacted what has been considered to be the toughest law against file-sharers worldwide, the industry today brought cases against 7 (seven) Italian uploaders – compared to 100 in Germany or 174 in Denmark. Check also the IFPI’s Fact Sheets on online piracy in several European countries.

Berkman Center’s Executive Director John Palfrey lectured earlier today at Cornell’s University Computer Policy and Law Program. In the first session, he made a strong case why, in fact, it makes sense to teach “cyberlaw” rather than the “law of the horse”. John started with an analysis of three contemporary legal and regulatory issues that are Internet-specific: Spam, the digital media crises, and VoIP. From there, he moved to a more abstract level and discussed some of the basic characteristics – phenomena such as large-scale infringements, uncertainty surrounding the applicability of traditional legal doctrines such as fair use, high costs of enforcement and coordination, and global reach of the medium, among others – which make the law of the Internet (at least in part) different from other areas of law. John also used variations on Lessig’s theme of the four modalities of regulation to illustrate what makes Internet law special.

In the second lecture, John Palfrey offered a thoughtful and comprehensive overview of the current digital media crisis. Starting with the Napster saga, he moved forward to the current state of affairs, discussing from a comparative law perspective, among other things, the Berkman Center’s iTunes case study and recent case law at the intersection of copyright and contract law as well as technological protection measures. Finally, John discussed possible scenarios for the future of digital media.

Both lectures provide a great opportunity to get an expert’s overview where cyberlaw stands and what some of today’s hottest topics are; highly recommended, also to the audience abroad. And even if you are a scholar working in the same field, you’ll enjoy Palfrey’s presentation, since it’s one of the increasingly rare occasions to re-think some of the fundamental assumptions and concepts of cyberlaw. Thanks, John!

In the aftermath of the Geneva Declaration, the World Intellectual Property Organization (WIPO) General Assembly has decided to advance a “development agenda” that acknowledges the need for balance in worldwide policy on IP rights. As our colleagues at EFF have observed:

“In the past, WIPO has been roundly resistant to attempts to balance the interests of copyright holders, who make up the majority of WIPO participants, and the public, which had never been represented at the meetings. Previous efforts to get WIPO to hold one-day information sessions on alternatives to copyright — such as the public-domain human genome database, the GPL software license that underpins GNU/Linux, and the Creative Commons project’s millions of ’some rights reserved’ books, movies, songs, and images — has been firmly rebuffed, with major WIPO nations applying enormous pressure to see to it that the issue was never brought to the table.

Now, in the wake of the ‘Geneva Declaration’ — a document calling on WIPO to work in the interest of all of its stakeholders, including the public — WIPO’s General Assembly has adopted a ‘development agenda,’ a kind of lens of public-interest considerations through which the treaty-body will view all future activities.”
A comprehensive collection of materials and proposals can be found here.

The Harvard-Yale cyberscholar working group is a monthly forum for fellows and affiliates of the Yale Law School Information Society Project and Harvard’s Berkman Center to discuss their ongoing research. Each session is focused on the peer review and discussion of current projects submitted by a presenter.

It’s my pleasure to announce that the next edition of the workshop series starts on Thursday, October 7 at the Berkman Center in Cambridge. Berkman Fellow Derek Bambauer will discuss his paper “An Information-Based Policy Approach to Unsolicited E-mail Advertising,” and ISP Fellow Marvin Ammori will present his paper “Another WorthyTradition,” discussing free speech doctrine and electronic media.
Stay tuned and let me know if you’d like to participate.

Together with Martin J. Eppler (University of Lugano) and Markus Helfert (Dublin City University), I serve as a Guest Editor of a 2004 Special Issue of the International Journal Studies in Communication Science on Information Quality. This special issue brings together researchers in the domain of business and organizational studies, as well as information technology and legal scholars to share findings regarding information quality and information quality management.

I’ve been asked to write a summary of the state of information quality research as far as information law is concerned. Here’s the draft:

“Information quality as a cross-sectional matter only recently has become a subject of legal scholarship. In essence, we might distinguish between three stages in the evolution of information quality as a research topic in law: initially, legal scholars addressed particular aspects of the information quality problem – mostly against the particular backdrop of a new piece of legislation, a court case, or the like – within the well-established, but rather fragmented sub-disciplines of law such as constitutional law, copyright, contract or corporate law. In this early stage, information quality was neither perceived as a distinct research field nor explored from a conceptual angle. In a second stage, triggered by Jean Nicolas Druey’s groundbreaking monograph on information as a subject of law, a debate about the definition of information quality, about quality criteria and about the question of legal assessments of information quality emerged. The insights gained from this scholarly work have been applied to specific problem areas such as the regulation of mass-media where the quality of information as a “product” came up for discussion, or to privacy-related issues. Most recently, however, a more fundamental debate about information quality regulation has been launched. A book edited by one of the authors of this introduction addresses the promise and concerns associated with information quality from the perspective of information law, analyzes key problems of informational quality regulation, and provides theoretical overviews of legal approaches to information quality regulation as well as practice-oriented and sector-specific exemplifications and analyses. Contemporary legal research seeks to analyze what players and/or what forces are regulating quality of information by what means, for what purposes, and with what effects. As far as regulation by law is concerned, the following issues are on top of today’s research agenda:

• Need for legal intervention: Initially, the question arises whether there is need for regulation at all, since legal interventions into social processes in general and content-related regulation of information and communication processes in particular require compelling factual justification and legitimation (e.g. in cases of market failures due to external effects or asymmetric information).
• Modalities of Regulation: Different legal strategies and techniques can be used to regulate information quality, for instance direct or indirect modes of regulation, substantive provisions or procedural approaches, ex ante or ex post regulation, minimal versus comprehensive regulation, rules or standards, etc.
• Sources of normativity: One important strand of research explores in what manner the law values information quality and what the possible sources of normative criteria for law-based information quality assessments are. Increasingly, the law derives normative criteria for quality assessments from the economic system (e.g. efficiency, functionality), especially where information is regarded as a “product”.
• Regulatory context: Some contributions have considered as to what extent there is need for a uniform information quality framework in law or, by contrast, whether sector-specific approaches to quality regulation are more adequate.
• Limitations: One of the most important issues concerns the question where the limitations of the law regulating information quality ought to be. Such limitations are necessary due to factual constraints (context-sensitivity of information versus the generalizing nature of law) and fundamental values such as “free speech” and “freedom of thoughts.”
• Effects of regulation: First experiences with legal attempts to regulate information quality suggest that the actual effects on information quality are not easily predictable. It turns out that information quality regulation by law also causes unwanted or at least unexpected effects.

Information law and regulatory approaches to information quality are still in their early stages. Most of the themes and questions outlined in this paragraph remain to be studied in greater detail and discussed from various perspectives, by integrating knowledge from different disciplines such as communication studies, information science, economics, and sociology.”