IT LAW

1. INTRODUCTION

It law stands for Information Technology and represent methods and technologies used to:

Transmit, Store, Process data and information through internet and network (information is the
object with which internet service providers work).

Information Society is a new model of society where human activity and business is highly
dependent on technology. f.e. commerce and public functions or services are highly affected by this
phenomenon because they use technologies that process information.

Information Society Revolution

Shift from industrial to information society: industrial revolution and information revolution had an
equal size of importance on the way they affected society. Industry 4.0 is the integration of intelligent
digital technologies into manufacturing and industrial processes.

Technological changes represent new risks and opportunities for individuals and the whole society
risks such as: human rights violations, discrimination, copyright while opportunities such as: no
distance between public and private relationships.

Human is transformed into a “supervisor” of automated systems that process information.

Information Technologies operate on information (the raw material) as input to produce information
as output, the most important raw material is personal data.

2. IT LEGAL RESOURCES: EU LAW

Multilevel Approach: different levels of regulation (no border network)

Domestic Law: Italian law

International Law: soft law

Eu Law: regulations, directives

Multidisciplinary Approach:

Civil Law: contract law

Criminal Law: crimes realized through online platforms)

Administrative Law: public bodies affecting private actors

International Law: human rights conventions

Domestic Law: is an hierarchical legal system where on the top there is the constitution, then the
state laws and regional laws (state laws include legislative decree and law decree), then the
governmental regulations, then the customs.

European Law has a supremacy doctrine in fact national courts must disapply national law in contrast
with EU law. Through this EU law has achieved a considerable part in economic and social approach.
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EU Union Law and its Evolution:

At the beginning EU aim was to realize economic cooperation between member states. With the
evolution of his attributions EU has adopted new legal rules such as “European Union Charter on
Fundamentals Rights”, and this affected also online relationships.

EU Primary Legislation

The primary EU legislation includes the Treaties (TFEU TEU), those treaties have direct effect to
individual persons and businesses, (it means that they can be empowered to seek enforcement
without the state intervention) like the free movement of goods within the EU (once duties are paid
for non EU products in any Member State they can circulate for free in EU) and the free movement of
services(services account around the 70% of the economic activity and employment in the EU)
citizen can work in any member state.

EU Second Legislation

Regulations are the most effective rule to achieve uniformity of Europe, they are of general
application and directly applicable.

Directives are compulsory on the result to achieve but leave to national authorities the choice of
form and methods, generally member state have compliance period to bring those laws came into
force (generally 3 years), if legislation doesn’t advance the aim of the directive the commission may
invite action in the CJEU (European Justice Court). CJEU is the most important judge of the EU legal
system.

Decisions are binding in their entirety, can address specific member states.

Recommendations and opinions: represent a “soft-law”, and are not binding.

How EU Secondary Legislation impact IT LAW?

2) Protection of Intellectual Property Rights directive n. 2019/790 ‘’copyright directive, Italy enforced
it through lgs 177/2021

3) Protection of Privacy regulation n. 2016/679, about the protection of personal data.

4) AI Regulation, is aimed to regulate tools making use of artificial intelligence

Summary of hierarchy between Italian and European laws: 1. Fundamental constitutional principles,
2. EU rules with direct effect, 3. EU rules with indirect effect, 4. Domestic Law.

3. PUBLIC AND PRIVATE INTERNATIONAL LAW

The international law on online relationships claimed importance because online relationships don’t
have any national border and there are some values arising (such as the protection of users).

The sources of International Law are: Customs, Treaties, General Principles of international law,
International Decisions, Soft Law
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Customs: non written rules arising out long-standing practices (objective: diutrinas) that nations have
followed out of a sense of obligation (subjective: opinio iuris). They are of a general application.

Examples of customs in international law: territorial sovereignty, prohibition of the use of force, state
immunity.

Objective element (diutrinas), are long-standing practices (act adopted by states) observed by states
for a long time. Subjective element (opinion iuris), the reason of why the countries have followed
that practice came out of a sense of binding obligation (domestic provision, case law)

International Customs have more importance than national customs because of a structural
difference between domestic and international legal systems.

International Treaties: secondary international law, they rely on a custom rule (pacta sunt servanda),
they can be bilateral treaties(2 states) or multilateral treaties(more than 2 states). The 1969 Vienna
Convention on the law of treaties is a treaty on treaties. They have primary rule from a practical
perspective.

Soft Law: UN General Assembly acts: Declarations, Resolutions, Recommendations.

Public International Law: rules governing states relationships.

Private International Law: rules concerning contractual relationships between private actors or
companies. PIL is aimed to establish rules useful to determine the national law applicable to the
contract (also called ‘’conflict of laws legal rules’’).

The legal sources for private international law are: domestic law, EU regulations and directives,
international treaties or conventions, international principles. They have indirect function(conflict of
law rules).

UNIDROIT Principles of International Commercial Contracts

Is an international organization established by the league of nations in 1926 (United Nations since
1945). Its seat is in Rome and its aim is to adopt rules useful to uniform private law among states.

Lex Contractus: (1 theory) parties may choose UNIDROIT Principles as the law applicable to their
contract alternatively to domestic law, (2 theory) parties cannot choose UNIDROIT Principles as lex
contractus.

International Conventions may be interpreted in accordance with the UNIDROIT Principles.

UNIDROIT Principles and Lex Mercatoria: the principles are a gradual codification of Lex Mercatoria
which may be less arbitrary, those principles are a partial codification (not a total) because some
topics are note covered.

Historic Origin of LM: the law was created by merchants for merchants without the mediation of
state power.

The Sources of LM are contract models created by business operators of a given country and then
adopted by operators of different countries.

Lex Informatica: spontaneous set of rules derived from online relationships.

Features linked to e-commerce:

- Transnational: naturally addressed to actors deriving from different countries

E-Commerce Contracts:

are contracts stipulated with online platforms, B2C (business to consumer contract). Usually, the
rules governing the contract are stipulated only by service provider (contract’s general conditions), so
there is an unilateral framework. Those contracts are regulated with connection criteria provided by
international private law, this connection criteria link the applicable law to a specific aspect.

E-Commerce Regulation:

EU Regulation 593/2008 called Rome I is the most important regulation useful to determine the law
applicable to international contracts. The aim of this regulation is to realize a uniform application of
contract law, to let parties predict what the legal framework of their contractual relationship is, to
avoid so the so-called forum shopping (choice of jurisdictional authorities and legal framework
applicable in the single case by the most powerful contractual actor). Through this regulation, the
improvement of economic growth and the protection of consumers are in balance.

The most important provisions of Rome I:

- Art.3 Freedom of choice: a contract shall be governed by the law chosen by the parties; the
choice shall be made expressly or clearly demonstrated by the terms of the contract or
circumstances of the case.
- Art.6 para 1. Consumer contracts: a contract concluded by a natural person (for a purpose
which can be regarded as being outside his trade of profession with another person act) with
another person, shall be governed by the law of the country where the consumer has his
habitual residence. Para 2. The parties may choose the law applicable to a contract in
accordance with art. 3. The aim is the protection of consumers.

For the EU Regulation a consumer is a natural person concluding a contract for a purpose different
from its professional activity.

Limits Applicable to Contractual Autonomy:

- Overriding mandatory provisions (positive and preventing limit)