Ri-nova 2019: more than a gift

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Ri-nova 2019: article

Enforcing Law Through Information Technology*

Dr. Anna K. Bernzen & Dr. Roman F. Kehrberger**

A. Brave New World?

In the spring of 2019, the car manufacturer Volvo caught the public’s attention: With its proposed “Volvo Vision 2020”, it aims to combat key factors for road accidents such as excessive speed and driving under the influence of alcohol or drugs. For this purpose, the manufacturer’s vehicles will monitor their drivers with sensors and switch themselves off if they suspect the influence of intoxicating agents. Additionally, they will recognise speed limits and automatically prevent them from being exceeded.[1] With its initiative, the car manufacturer intends to initiate a debate on the automated enforcement of law using technical means.[2] The European Union (EU) has also recognised the potential of information technology (IT)[3] in road traffic and plans for speed limits to be enforced by “intelligent speed assistants” by 2020.[4]

At first glance, this appears to open up a brave new world of compliance, as not only speed limits in traffic can be automated. Upload filters, for example, promise the enforcement of copyright and privacy rights on the Internet. And why does a motorcycle start when a camera can easily recognize that its rider is not wearing a helmet? Why does a civil court have to decide when a contractual claim can also be enforced automatically? But is this new world really desirable – or is it rather a “Brave New World” in the sense of Aldous Huxley?[5] This paper discusses the opportunities and risks of enforcing law through IT and derives a legal framework for its use, focussing on the constraints provided by the German law. It makes no claim to completeness, but aims to give an overview and to show, based on selected examples, what the legal policy discussion should concern itself with today if law is to be enforced with the help of IT tomorrow. ___STEADY_PAYWALL___

B. Possible Uses of IT for Law Enforcement

The combination of the terms “law enforcement” and “IT” evokes the association of a “smart robot in a judge’s robe”[6]. While a robo-judge is still a thing of the future in Germany[7], IT already plays a role in the enforcement of the law. How it is used – or might be used in the near future – to enforce the requirements of private law (I.) as well as public law, including criminal law, (II.) is shown in the following section using currently discussed examples.

I. Enforcement of Private Law

The question of how private law is enforced through IT requires two different answers: The first answer concerns its use to enforce contractual rights and obligations, the second concerns its use to enforce rights and obligations with respect to absolute rights.

1. Enforcement of Contractual Rights and Obligations

The enforcement of main and secondary contractual obligations with the aid of IT has been a matter of debate in private law for several years now, particularly with regard to the use of smart contracts. There is no universal agreement on what constitutes a “smart contract” yet.[8] Smart contracts are often associated with the blockchain technology.[9] They are, however, independent of it in principle.[10] For the purpose of this paper, no new definition of a smart contract will be developed, but the understanding of Kaulartz and Heckmann will be relied upon: A smart contract is a software which performs legally relevant actions on the basis of digitally verifiable events, but which can also be used to conclude the contract itself.[11]

A popular example of a smart contract concerns the leasing of a car. If the lessee fails to pay a leasing instalment on time, the smart contract could recognise this failure and consequently lock the leased car or at least prevent its engine from starting. The lessee would thus be prohibited from using the car until he has fulfilled his contractual payment obligation.[12] Knowing this could encourage him to make the payment when it is due. If he does not succeed in doing so, the lack of the opportunity to use the car would at least provide him with an incentive to make up the payment quickly.

Another field of application for smart contracts concerns the renting of living space. To illustrate the possibilities in this field, the example of a flat, the door of which remains locked to the tenant who has not paid her rent on time, is often used.[13] Technically, this could be done by using a chip card instead of a metal key, similar to the card used for a hotel room, or an app such as the one used in car sharing to unlock the car door. By influencing this digital key, access to the flat could automatically be blocked if the rent was not paid.[14] Similar to the example of the leased car, the looming lockout could incentivise the tenant to pay the landlord on time.

Strictly speaking, both of these are not examples of an automated execution of the contract at hand. By means of the smart contract, the claim to payment of the leasing instalment or the rent is ultimately not fulfilled directly. By automatically blocking the leasing or rental object, however, a strong incentive to fulfil this obligation is created – so strong that the use of a smart contract at least indirectly enforces the claim for payment. There are, however, some smart contracts which are used directly to fulfil contractual obligations. The AXA insurance company, for example, offers “fizzy”, an insurance product that automatically pays the policyholder a prearranged compensation in the event of a flight delay of at least two hours. This automatic execution is possible because there is an interface between the Ethereum blockchain on which the policy is stored and the relevant air traffic databases.[15]

2. Enforcement of Rights and Obligations Relating to Absolute Rights

In the area of private law, IT can also be used to prevent the violation of absolute rights. The primary area of application for this is intellectual property law. Technical protection measures have been used for some time to prevent copyright infringement in particular (see ss 95a ff of the German Copyright Act (“Urheberrechtsgesetz”, UrhG)). An example which is almost obsolete is the copyright protection of physical data carriers such as CDs which prevents the protected works stored on them from being illegally reproduced (see s 16 para 1 UrhG). Upload filters are a more modern-day example. Such software is designed to detect content which infringes copyright prior to its publication and to prevent it from being uploaded to the Internet.[16] The filtering is intended to thwart the unlawful making available to the public (see s 19a UrhG).

Upload filters have recently been discussed controversially in connection with the new EU Directive on Copyright in the Digital Single Market.[17] In its first draft, art 13 of the Directive stipulated that certain platform operators must use “content recognition technologies”[18] in order to prevent copyright infringement. In practice, such software is already in use: YouTube, for example, uses the Content ID process in which a copyrighted reference video is automatically compared with the users’ uploads. If the programme detects that protected works are being used by third parties, their content can be blocked automatically.[19]

Such filter systems could also be used to prevent the violation of other absolute rights. The operators of digital marketplaces, for example, could use them to prevent offers from being activated for products protected by a trademark that do not originate from the owner of the trademark or from its licensees.[20] The filter software could also check entries on social media for elements which violate the right to privacy before they are published. They could, for example, examine postings to see whether they contain an insult which the user must refrain from in accordance with s 1004 para 1 of the German Civil Code (“Bürgerliches Gesetzbuch”, BGB). The filters could also prevent the violation of the general right to privacy through the publication of images belonging to the particularly protected personal sphere.[21]

II. Enforcement of Public and Criminal Law

In Germany,[22] the use of IT to enforce public-law and, above all, criminal-law prohibitions has been discussed – if at all – under the headings “embedded law”[23], “embedded legal knowledge”[24] or “smart enforcement”[25].[26] In practice, examples of the use of IT for law enforcement can already be found in both areas of law.

1. Enforcement of Criminal Law Requirements and Prohibitions

In criminal law, IT is already used, on the one hand, to prevent actions which in the majority of cases constitute a punishable offence. An example of such a prohibition is the counterfeiting of money prohibited under s 146 of the German Criminal Code (“Strafgesetzbuch”, StGB). According to this standard, anyone who imitates money with the intention that it be placed on the market as genuine or that such placing on the market be made possible is punished. For this reason, all photocopiers are uncapable of making coloured copies of banknotes.[27] It is also common practice in credit card companies to use software that detects suspicious activities when using customer credit cards and that can automatically block these cards if such activities are detected.[28] This prevents criminal offences such as those according to ss 263, 263a StGB. The lock which automatically prevents further use of an EC card after three incorrect entries of the PIN works in a similar way.

The example of upload filters which has already been discussed in the context of the violation of absolute private rights[29] is also relevant in criminal law. These filters could not only be used to prevent the publication of copyrighted material and thus the commission of criminal offences according to ss 106 ff UrhG. Art 6 of a planned EU Regulation on preventing the dissemination of terrorist content online[30] contains the obligation of host providers to use automated programmes to prevent the upload of terrorist content. Criminal acts such as those contravening ss 84 ff, 129 ff StGB or s 20 of the German Law on Associations (“Vereinsgesetz”, VereinsG) could be prevented with such filters. Insulting, hatred-inciting or child pornographic content, for example, could also be blocked by the filters, thus preventing violations of ss 185 ff, 130, 184a ff. StGB.[31]

IT can also be used in a way that makes it more difficult to commit a criminal offence. For example, there are firearms which can only be fired by their rightful owner.[32] This does not prevent said owner from using the weapon to commit crimes such as bodily harm, nor does it prevent strangers from using the threatening potential of the weapon for robbery or blackmail. However, it ensures that no other party than the owner will, for example, be able to commit the offences under ss 211 f, 223 ff StGB.

2. Enforcement of Public-Law Requirements and Prohibitions

If one widens the view to other areas of public law, similar examples come to mind in which legal prohibitions are already enforced by means of IT. One is the tobacco vending machine which already releases its products only after verifying the age of the customer by means of an identity card.[33] This enforces s 10 para 1 of the Geman Law for the Protection of Minors (“Jugendschutzgesetz”, JuSchG) which prescribes that tobacco products may be delivered only to over 18-year-olds. The IT solution is even provided for in the law itself: S 10 para 2 no 2 JuSchG contains an exemption from the general prohibition to sell tobacco goods in vending machines if “technical devices […] ensure that children and adolescents cannot remove tobacco goods and other nicotine-containing products and their containers.”

However, as the introductory Volvo example has shown, motor vehicles are particularly suitable for the enforcement of public law through IT. A number of examples can be given in which IT enforces (road) traffic law.[34] Modern vehicles can detect whether there is a speed limit on the respective stretch of the road, for example.[35] The step towards the automatic enforcement of this limit in which the vehicle prevents its violation– i.e. a violation of s 3 para 3 of the German Road Traffic Act (“Straßenverkehrsordnung”, StVO) or of the maximum speed stipulated by s 41 para 1 StVO in conjunction with signs 274 or 274.1 annex 2 StVO – is a small and easily feasible one, as Volvo has shown. Additionally, modern cars already have sensors which measure the distance to the vehicle in front of them and which can automatically keep this distance.[36] An automatic braking manoeuvre could easily prevent the distance from falling below the safety distance prescribed in s 4 para 1 StVO. Lastly, IT might be able – if not now, then in the near future – to detect whether there is a red traffic light in front of the car which could then be prevented from being crossed. A violation of s 37 para 2 StVO would thereby be prevented.[37]

III.  Comparison of the New Possibilities with the Status Quo Ante

In conclusion, IT is already being used to enforce both private and public law. If the technology continues to evolve, further possibilities will arise, some of which have already been mentioned above. With the help of IT, violations of the law are effectively prevented in all the examples described. Rademacher therefore uses the term “impossibility structures”[38], which stems from the Anglo-American legal discussion, to describe this phenomenon. However, these structures are not unique to IT.[39] Methods that do not only subsequently sanction violations of the law but prevent them also exist in the non-technical area. Comprehensive controls at the airport, for example, largely prevent prohibited items from being carried on board of an aircraft, while physical security measures such as bars in front of the windows make burglary very difficult[40] and barbed wire is used to prevent access to military restricted areas. Additionally, the consumption of trafficable narcotics as listed in annex 3 to the German Narcotic Drugs Act (“Betäubungsmittelgesetz”, BtMG) for large parts of the population is effectively prevented by the fact that their legal acquisition is impossible.[41]

The essential novelty of law enforcement through IT, however, is that the advancing technological development will open up new possibilities for the use of “impossibility structures” in almost all areas of life.[42] It is not only the state that can use IT to enforce the law across the board; private individuals may also use IT for this purpose, either on their own initiative or as a result of government orders. The potential ubiquity of IT used for law enforcement offers new opportunities compared to existing “impossibility structures”, but also creates new risks. The question of the extent to which IT “impossibility structures” in particular may be used to prevent infringements of the law must therefore be asked anew.

C. Challenges for the Use of IT for Law Enforcement

The description of the possible fields of application of IT in the first section of this paper has shown that it can make a contribution to the enforcement of the law in many respects. In doing so, however, it encounters challenges which may stand in the way of its use in the manner described above. In the following section, these challenges will be examined under the headings of a risk of overblocking (I.) and of risks to the rule of law (II.) with regard to the extent to which they set limits to the use of IT for law enforcement.

I. Risk of Overblocking

The use of IT for law enforcement is inherently subject to the risk of overblocking. This term has been used mainly in the context of the discussion about upload filters.[43] However, it can also be used as an abstract description: IT which enforces the law not only prevents prohibited behaviour (“blocking”), but in some cases also behaviour which gives the impression of a violation of the law but is actually in accordance with the legal order (“overblocking”).[44] In the following section, the complexity of the law which is to be enforced by IT (1.), the requirement of a predictive decision (2.) and the possibility that prima facie unlawful conduct is nevertheless lawful (3.) are analysed as the three conceivable causes of overblocking when using IT to prevent violations of the law.

1. Complexity of the Law

Before it can enforce the law, IT must in some cases make legal decisions which it is unable to make according to the current state of the art. In private law, for example, this concerns the enforcement of laws that contain indeterminate legal concepts. How, for example, must a period for performance be calculated so that it is reasonable within the meaning of s 323 para 1 BGB and that the creditor may withdraw from the contract after its expiry? Software cannot accurately determine what is “appropriate” in each particular case.[45] A smart contract would therefore reach its limits where such indeterminate legal concepts would have to be interpreted in individual cases in order to trigger a legal consequence. Blanket clauses such as s 242 BGB also present the IT with a challenge.[46] Just like indeterminate legal concepts, they demand an assessment – in the case of good faith, as contained in s 242 BGB, even a moral one – which a smart contract cannot yet make.[47]

Indeterminate legal concepts, blanket clauses and other norms which require an individual assessment also exist in public law. One example is the question of whether a traffic sign was properly published (see s 41 para 1 subpara 1 of the German Administrative Procedure Act (“Verwaltungsverfahrensgesetz”, VwVfG))[48]. The speed limit only applies where this requirement is fulfilled. Another example concerns online transfers of money. In order to prevent money laundering, there are statutory provisions, such as ss 43 para 1 no 1, 46 para 1 of the German Money Laundering Act (“Geldwäschegesetz”, GwG), according to which a transaction may not be carried out if it involves the transfer of an asset which “stems from an offence which could constitute a predicate offence of money laundering”. Which actions are covered is, however, discussed controversially.[49] In both cases, as in private law, IT is confronted with the task of carrying out complex evaluations which it is unable to. In civil law systems such as the German legal system, which aims to solve as many individual cases as possible through abstract-general regulations,[50] this problem would occur often if IT were to enforce the law.

2. Requirement of a Predictive Decision

The finding of justice always takes place against the background of an interpreted reality.[51] The idea of carrying out a legal assessment on a “true” factual basis is pure utopia which every procedural law must deal with.[52] It may therefore be factually unclear whether state action is necessary. This applies all the more to preventive government action. In contrast to court proceedings, in which attempts are made to clarify the past in the best possible way and to subsequently draw consequences from it, future development has to be anticipated in this area of action.

The German Constitutional Court (GCC) has rightly established particularly strict conditions for preventive measures which encroach deeply upon the privacy of those affected.[53] The general right to privacy (art 2 para 1 in conjunction with art 1 para 1 of the German Basic Law (“Grundgesetz”, GG)), the secrecy of correspondence, post and telecommunications (art 10 para 1 GG) and the inviolability of the home (art 13 para 1 GG) place limits on these measures. In particular, the GCC has measures with a “specifically broadly effective potential for endangering fundamental rights”[54] in mind. IT which is intended to prevent legal infringements across the board has such a potential. After all, its use presupposes the all-encompassing and constant monitoring of the citizens whose behaviour is potentially to be prevented.[55] However, the GCC permits measures with a specifically broadly effective potential for endangering fundamental rights only if “in individual cases there are reliable actual indications”[56] of an infringement.

In general police and public order law, this is implemented through the application of refined dogmatics for state action which intend to prevent breaches of the law, using various concepts of danger and presupposing the proportionality of each measure.[57] If, for example, a police officer wanted to prohibit a citizen from using a credit card on the basis of the blanket police clause because he believes that said credit card has been stolen, according to conventional dogmatics, a specific danger to a good protected under police law would be necessary.[58] IT would also have to make a prognostic decision in this regard if the state wanted to use it to automatically prevent the misuse of credit cards. However, according to the current state of technology, it is not in a position to do so. Rather, it often acts anything but flawlessly and sometimes even irrationally.[59] Examples of this are the “Flash Crash” of the Dow Jones triggered by algorithms on 6 May 2010[60] or the classification of dark-skinned women as “gorillas” by Google’s image recognition technology[61]. If errors of this kind occur in the assessment of a situation and IT makes an incorrect predictive decision based on this, behaviour that would have been legally permissible is de facto prevented as a result.

3. Admissibility of Prima Facie Breaches of the Law

However, even situations in which the IT correctly recognises the facts, correctly applies the law to them and thus enforces the law by preventing its breach may be problematic. In these situations, a risk of overblocking exists where the legal system (more or less explicitly) permits the prima facie breach of the law which the IT is supposed to prevent. Although this idea may instinctively give rise to contradiction, a closer look reveals that both in private law (a.) and in public law (b.) situations are conceivable in which a behaviour which is at first sight inadmissible is in the end approved by the legal system.

a. Private Law

aa. Enforcement of Contractual Rights and Obligations

The use of IT to fulfil contractual obligations, which is currently being discussed using the example of smart contracts, is to be welcomed in view of the private law principle “pacta sunt servanda”.[62] Anyone concluding a contract must fulfil their obligations arising from it. In principle, a smart contract ensures nothing else.[63] It thus adds to a series of mechanisms in the non-technical field, the agreement of which enables the contracting parties to ensure that contractual obligations are fulfilled. They can, for example, agree that a contractual penalty is to be paid for a missing or incorrect fulfilment of their obligations (see ss 339 ff BGB). This penalty also serves as a means of exerting pressure in order to ensure the proper fulfilment of obligations.[64] If, instead, the parties agree to ensure the fulfilment of their obligations by means of a smart contract, this agreement is in principle just as much an expression of their private autonomy as the agreement on a contractual penalty.

If a contractual claim has arisen, however, only the first of three necessary steps has been climbed. In addition, no objections or pleas may stand in the way of the claim – as every law student learns in her first semester.[65] The example of a rented apartment which blocks the tenant’s access in the absence of monthly payments given above illustrates why this three-stage claim structure can conflict with the agreement on a smart contracts.[66] The landlord may originally have had a claim to a rent payment according to s 535 para 2 BGB. If, for example, the water in the shower is no longer warm and the landlord has not yet remedied this, the tenant may claim a rent reduction of 10 percent.[67] To that extent he does not have an obligation to pay the rent according to s 536 para 1 subpara 1 BGB. If the tenant repairs the shower himself because the landlord was in default with its repair and if he is therefore entitled to a reimbursement of expenses pursuant to s 536a para 2 no 1 BGB, he may oppose the landlord’s claim for the payment of rent with his right of retention pursuant to s 273 para 1 BGB in the amount of his expenses. To that extent the landlord’s claim is unenforceable.

However, according to the current state of the art, the smart contract could only check whether a rental payment has or has not been made, and would automatically block access to the apartment based on this. It cannot take into account the fact that the payment was permissibly not or only partially made.[68] Its use can therefore result in the de facto imposition of the provision of services that are not contractually owed.[69] This distinguishes the smart contract from the non-technical measures which are already in place to ensure compliance with the contract: A contractual penalty, for example, is not paid automatically by the debtor as soon as the creditor believes that it has been forfeited. Rather, the latter must go to court if the debtor does not fulfil his obligation.

bb. Enforcement of Rights and Obligations Relating to Absolute Rights

The use of IT for the protection of absolute rights can have positive effects to the extent that rights and obligations in this regard are currently not enforced comprehensively, especially on the Internet.[70] An upload filter, for example, can prevent infringements of the general right to privacy on social media more effectively than manual controls operated by the respective platform. However, not every interference with an absolute right actually violates the legal order. Rather, whether this is the case must be determined – again – taking several steps. In particular, the interference must also be unlawful.[71] Examining the lawfulness, however, poses a great challenge to IT at the current state of the art.

An example of this is the above-mentioned upload filter which is intended to prevent violations of privacy rights. An interference with the general right to privacy does not indicate the unlawfulness of the behaviour in question. Rather, the unlawfulness must be determined in each individual case by weighing up the rights and interests involved on both sides.[72] In political discussions, for example, certain drastic statements may be lawful which would be classified as offensive in other contexts and would therefore be forbidden.[73] A word filter which always automatically blocks these expressions would thus prevent the publication of legitimate content in some cases.

A similar situation would most likely occur if an upload filter was used to prevent copyright infringements. It is doubtful that the complex system of limitations on copyright could be translated into filter software.[74] In order to determine whether the quotation limitation in s 51 UrhG applies, for example, it must be examined on a case-by-case basis whether the particular purpose of the citation permitted the use of the protected work to the specific extent to which it was used.[75] A software would not succeed in the individual process of consideration necessary for this at the current state of the art.[76] Upload filters would therefore in some cases enforce cease and desist obligations which do not exist.

b. Public Law and Criminal Law

In public law, and in particular in criminal law, the breach of a law is sometimes expressly approved by the legal system as well.

This becomes particularly clear when considering the institutes of self-defence according to s 32 StGB and – even more illustrative for the purposes of this paper – the justification of necessity in s 34 StGB as well as the justification of a conflict of duties of goods.[77] These three justifications are also applied outside the core criminal law, for example in administrative offences law (see s 16 of the German Administrative Offences Law, (“Ordnungswidrigkeitengesetz”, OWiG)).[78] They are an expression of a general legal principle according to which the legal system approves of conduct which is in principle prohibited by rules of public or criminal law if it pursues an interest which outweighs, or is equivalent to, the interest protected by the rule.[79] In this case the offence is not only not punishable, but not illegal at all.[80] The legal system therefore recognises that its prohibitions are not absolute, but that they are countered by equivalent grounds for permission.[81]

The example of the motor vehicle which prevents the contravention against prohibitions in traffic law illustrates the problems resulting from the use of IT to enforce the law in this respect. It is conceivable, for example, that the legal system allows the speed limit to be exceeded in certain cases. A trip through the city centre at 80 km/h may be justified according to s 34 StGB or to s 16 OWiG if a bleeding passenger has to be brought to the hospital quickly.[82] In order to avoid an accident, it is also permissible to exceed the maximum speed for a short time. A red traffic light may be crossed on a case-by-case basis to prevent an imminent rear-end collision[83] or to allow vehicles with special rights to pass through[84]. The same applies in cases where a car comes too close to the vehicle in front of it. Lastly, a vehicle may even be used as a weapon against an attacker within the framework of self-defence. However, if IT enforces the respective road traffic prohibitions, these behaviours are prevented.

A similar challenge arises in the case of insulting or defamatory remarks, the publication of which on the Internet might be prevented by upload filters. S 193 StGB contains the specific justification[85] of the protection of legitimate interests. Statements which at first glance contravene ss 185 ff StGB may thus be justified if they are polemically formulated criticism, satire or quotations.[86] However, as outlined with regard to the corresponding problem in private law, IT is currently unable to make the necessary assessment of the comments in order to determine whether they are justified.[87] In public law, too, their use therefore threatens to effectively prevent lawful – justified – conduct.

c. “Zero equals ten minus ten”

Both in private law and in public law, prima facie breaches of the law may thus be permitted by the legal system. Such justified conduct must be assessed in the same way as conduct which does not breach the law in the first place: “Zero equals ten minus ten”[88]. This assessment has consequences for the enforcement of the law through IT: IT that generally prevents the breach of the law only knows the left side of the equation. The result can only be “zero” because the commission of the offence is already prevented. There is no possibility for the right part of the equation, i.e. “ten minus ten”, although the result would be equivalent. In a legal system which knows both sides of the equation and which leads both to the same result, IT which acts to enforce the law must therefore be able to consider both sides of the equation. Objections and pleas, limitations and justifications must be taken into account in determining whether an act is prohibited. In view of the great complexity of the underlying weighing of goods[89] and the changing socio-moral view that ultimately underlies this weighing exercise, some time will pass before IT is in a position to meet these requirements.

4. Constitutional Relevance of Overblocking

That overblocking looms where IT is used for law enforcement according to the current state of the art is merely a description of the status quo. The fact that this status quo limits the use of IT follows from the constitutional classification of overblocking which is carried out for the various possible uses of IT in this section of the paper.

If the state uses IT to prevent the behaviour of its citizens by either employing the IT itself to enforce the law or by prescribing its use to private individuals, it interferes with their general freedom of action under art 2 para 1 GG or with the fundamental right which specifically protects the prohibited behaviour. Therefore, the use of IT must meet the requirements of the proportionality principle:[90] It must serve a legitimate aim, be suitable and necessary to achieve that aim and be reasonable as a means of achieving it, considering the competing rights and interests involved.[91] Where overblocking occurs, these requirements are not met, as it is not reasonable to use the IT. After all, a measure is only reasonable if the seriousness of the encroachment on fundamental rights it involves is not disproportionate to the importance of the reasons justifying the encroachment.[92]

Where overblocking occurs because IT incorrectly assesses the complex legal or factual situation and therefore prevents behaviour that is not even prohibited by the law it is intended to enforce, an imbalance exists. The state prevents behaviour protected by fundamental rights without any justification for it. The action which is prevented would not have endangered the good which the law which ought to be enforced with the help of IT is intended to protect. The state therefore had no reason to interfere to protect it.

The use of IT for law enforcement can, however, also be unreasonable if conduct is prevented which is generally prohibited but is lawful in this individual case for other reasons. In this case, a justification for the encroachment on fundamental rights exists. The good which is protected by the law which ought to be enforced with the help of IT would now in fact be endangered by the behaviour which was prevented. The state may therefore in principle interfere with fundamental rights in order to guarantee its protection.[93]

However, in the case of overblocking a prima facie breach of the law, other fundamental rights are added to the general freedom of action or to the more specific fundamental right with which the state interferes. The reasons justifying the apparent breach of the law are ultimately the result of subjective legal positions. Some limitations to copyright law, for example, are based on the artistic freedom (art 5 para 3 subpara 1 GG) or on the freedom of the media (art 5 para 1 subpara 2 GG).[94] In criminal law, too, justifications are, in the view held here, based on subjective rights of the justified party.[95] For the justification of necessity, this is largely recognised, although often not formulated explicitly.[96] It follows from the requirement of a state of necessity, i.e. a “an imminent danger to […] another legal interest”, s 34 subpara 1 StGB. Consequently, such a situation gives rise to a subjective right to influence the foreign legal sphere, as this is necessary for the protection of the endangered subjective right.[97] Self-defence also relies (at least partially) on a subjective justification.[98] The subjective right to self-defence in this case follows directly from the attack on a subjectively protected legal positions.[99] This may be the right to life and physical integrity (art 2 para 2 subpara 1 GG) or the right to property (art 14 para 1 GG). The justification contained in s 193 StGB is also essentially based on fundamental rights, namely on those in art 5 para 1, 3 GG.[100]

If IT is used to thwart conduct which is generally prohibited but which would have been justified in this specific case, the state interferes additionally with the fundamental rights whose protection the respective justification serves. The encroachment on fundamental rights which lies in the use of the IT is therefore even more severe than the encroachment in the case of an overblocking of behaviour that does not contravene a prohibition in the first place. This serious impairment is not proportionate to the importance of the grounds justifying the interference. How severe the encroachment on fundamental rights may be on the one hand in order to guarantee protection for the conflicting positions on the other has, after all, been decided by the legislator when regulating the grounds for justification. These rules create a reasonable balance between the rights and interests concerned on both sides. If IT prevents a behaviour which would have fulfilled the requirements of a justification, this balance is severely disturbed.

It is fundamentally different, however, if private individuals agree to use IT for law enforcement purposes without a corresponding government order. This applies in particular to smart contracts which are used to enforce contractual rights and obligations. Corresponding agreements are in principle covered by the private autonomy of the contracting parties, even if a threat of overblocking exists because objections are cut off, for example.[101] After all, the concept of private autonomy entails entering into disadvantageous agreements.[102] In principle, the state must therefore respect it as an expression of the parties’ contractual freedom which is protected by the general freedom of action.[103]

However, a limit has been reached where the decision to use a smart contract or similar IT is no longer in fact an autonomous one. After all, private autonomy presupposes that both parties can decide on a contract in free self-determination and that not one party has such a say in the negotiation that it can de facto determine the contract unilaterally. If such a situation occurs, the state must counteract it due to the objective fundamental decisions of fundamental rights and to the principle of the social state (art 20 para 1, 28 para 1 subpara 1 GG).[104] In this case, by preventing certain conduct in the conclusion and performance of contracts, the state creates the conditions for a truly autonomous creation of the contract.[105]

II. Risks to the Rule of Law

The risk of overblocking is not the only legal challenge facing IT enforcement. The use of IT for law enforcement must also be consistent with fundamental guarantees provided by the rule of law. With the comprehensive granting of freedom contained in the constitution (1.), the principle of the separation of powers (2.), the monopoly to enforce private law which lies with the civil courts (3.) and the prohibition of groundless surveillance (4.), four aspects which could limit the use of IT for law enforcement even if there was no longer a threat of overblocking as a result of technical progress will be considered below.

1. Comprehensive Constitutional Guarantee of Freedom

An essential characteristic of the constitutional order under the Basic Law and of the quality of humans as subjects is their fundamental freedom, as is first and foremost apparent from the comprehensive granting of freedom in art 2 para 1 GG.[106] The fundamental freedom of man and its guarantee in the Basic Law ultimately put the highly abstract concept of human dignity (art 1 para 1 GG) in concrete terms.[107] The GCC has emphasised this in its decisions: “Human dignity only remains untouched if the individual is treated as fundamentally free, albeit always socially bound, and not vice versa as fundamentally unfree and subject to a higher authority.”[108]

This freedom must not only exist on paper. Citizens must also be able to experience it.[109] The Basic Law codifies the principle of freedom in art 2 para 1 as the right “to behave at will in the sense of an initial presumption”[110] in a prominent place at the beginning of the catalogue of fundamental rights.

The fundamental freedom of man in a state under the rule of law presupposes that not all violations of the law can be prevented without almost completely abandoning that freedom which is a necessary component of a model of society based on individual freedom and the rule of law and which relies on its citizens’ self-determination as well as the ability to act and participate.[111] This freedom also presents itself as a freedom from constant state mistrust of the citizens’ sense of responsibility and ability to deal with this freedom appropriately. In the words of the judge at the GCC Masing: “Freedom is the ever-new attempt at self-design in time, and freedom includes forgetting – forgetting which swallows up error and thus also permits it.”[112] If humans are deprived of their freedom, they are little more than an object of state action,[113] not subject to free will, but to the power of the state.[114] If IT monitors the compliance of citizens everywhere and at all times and enforces it comprehensively, the freedom of these citizens becomes an illusion.

The fact that automated law enforcement poses a certain contradiction to the fundamental presumption of freedom in the Basic Law does not make it inadmissible per se. After all, the freedom of the individual may be restricted within the framework of the legal system.[115] Such restrictions would only be enforced more effectively by IT than humans could. However, the fundamental distrust which the state expresses towards its citizens through its use of IT constitutes an issue. This distrust is difficult to reconcile with the model of freedom contained in the Basic Law. This serves as a fundamental argument for a cautious use of IT for law enforcement.

2. Separation of Powers in a State under the Rule of Law

In a state governed by the rule of law and thus relying on the separation of powers, it is the task of judges to determine the law.[116] The fact that the possibility of recourse to legal action must be open to all citizens is guaranteed as a subjective right by the general claim to justice which is itself derived from the fundamental rights, in particular from art 2 para 1 GG, as well as from the principle of the rule of law in general and art 19 para 4 GG in particular.[117] It is aimed at providing citizens with effective judicial protection in the event of (alleged) infringements of any kind.[118] However, the general right to be granted justice runs empty to the extent that IT has already prevented a violation of the law where difficult or even new legal issues emerge.

One example of this is s 80 of the German Rules of the Administrative Courts (“Verwaltungsgerichtsordnung”, VwGO) which provides a sophisticated framework in the area of administrative law concerning the question of who has to bear the risk that a state action subsequently turns out to violate the law.[119] The executive has the possibility to impose orders and prohibitions on citizens by administrative acts. Citizens must adhere to these.[120] If, however, a citizen defends himself against the administrative act by attacking it in court, the decision-making authority is transferred to the judiciary. In principle, attacks on administrative acts have a suspensive effect until these administrative acts have been confirmed by a court, according to s 80 para 1 VwGO. This does not apply, however, if one of the exceptions contained in s 80 para 2 VwGO applies. In this case, the suspensory effect of the attack may be ordered or restored by way of a summary court decision according to s 80 para 5 VwGO.

This sophisticated distribution of risks can guide citizens in their decision as to whether to take action against administrative acts. It also expresses a fundamental decision regarding the decision-making authority over state actions. It would be circumvented if, instead of an examination of the infringement by the judiciary after a decision of the executive branch, IT made a decision on the matter and consequently prevented the citizen’s behaviour before the fact. The citizen would then bear the sole risk of the illegality of the state action.

The situation is similar in other areas of law: As a matter of principle, facts that deviate from the “natural” state may only be created after thorough judicial review. In civil procedural law, for example, the permanent enforcement of private law is ordered only after the factual and legal situation has been closely examined in the main proceedings. By way of interim relief, on the other hand, no definitive rules may in principle be laid down concerning the subject-matter of the dispute.[121]

In addition, courts in a state governed by the rule of law have the task of further developing the law.[122] In addition to deciding on new legal issues, this also includes the responsibility to fill the blanket clauses[123] with life in such a way that they reflect the changing socio-cultural and moral worldviews.[124] In the 1960s, for example, many expressions, such as those concerning sexual preferences, were perhaps punishable by law as insults or were assessed as encroachments on the general right to privacy which are today considered unproblematic. If an upload filter disabled the publication of such statements, the development of the law would be prevented or at least severely impeded. The values of a society would be cemented to the point in time at which the IT began to prevent violations of the law. The interaction between society and law, referred to by Becker as the “feedback loop”[125], would be interrupted.

3. Monopoly of the Civil Courts on the Use of Force

As a result of the introduction of civil proceedings to enforce subjective rights,[126] there are hardly any self-help rights in German civil law.[127] The enforcement of subjective private rights is instead in principle the responsibility of the civil courts.[128] Anyone who claims that the private law has been violated must use these courts to (re)establish a state which is in compliance with the law. Until then they have to tolerate a possible breach of the law – admittedly not without compensation (see s 288 BGB). The use of IT to enforce private law contradicts this monopoly of the civil courts to some extent. If, for example, a smart contract locks a leased vehicle if the leasing instalments are not paid or even drives the vehicle back to the lessor autonomously – a scenario which is conceivable in the medium term –, the lessor will find herself in a situation which she would otherwise only have reached by going to court, namely after completing the main proceedings and, if necessary, the enforcement proceedings.[129] The use of upload filters is similar: By ensuring that an infringing video is not published, for example, they relieve the rightsholder of the burden of seeking legal action to have it deleted. Djazayeri vividly describes this as “electronic self-help”[130].

The use of IT therefore shifts the risk of litigation:[131] Instead of the lessor, in the example of the vehicle used above, it is now the lessee who has to sue. Instead of the rightsholder, in the example of the video that allegedly violates copyright law, its creator must take legal action. While the automatic confiscation of central goods such as vehicles would perhaps motivate those affected to enforce their rights in court, this would certainly be different in other areas in which IT may be used to enforce the law. Whether, for example, a private YouTube user would actually go to court in order to ensure publication of her blocked holiday video is highly doubtful.

Regarding the procedural law, the claimant also bears the burden of proof for all facts justifying his claim.[132] If, for example, a payment is processed automatically with the help of a smart contract, it is not necessary for the person requesting payment to prove that they have a contractual claim to the payment. Instead, the party claiming that the payment was made without a legal basis must prove that no such basis existed.[133] By creating a situation that does not correspond to the legal situation, IT therefore shifts the burden of proof between the parties. Even if the claim of the person affected by the IT enforcement is legally undisputed, it may be difficult for them in some cases to prove this to the full conviction of the court (see s 286 of the German Code of Civil Procedure (“Zivilprozessordnung”, ZPO)).[134]

There are many other reasons why even citizens who are in the right do not go to court: The claimant is economically burdened by the fact that he has to pre-finance the lawsuit.[135] Rational apathy also plays an important role, especially where small amounts are in dispute.[136] In view of the (not necessarily only monetary) costs of legal proceedings[137] and the uncertainty of the success of a lawsuit, it may be rational to refrain from asserting one’s rights. Irrespective of the chances of success of a lawsuit, persons unfamiliar with the law may shy away from going to court for this reason.[138] In consumer law, for example, the enforcement of which regularly involves legally inexperienced persons, a large part of the existing claims is not enforced.[139]

Admittedly, the state’s monopoly on the enforcement of private law is no longer untouched today. In the area of economic disputes, the state is increasingly losing influence, as these are dealt with by private arbitration tribunals.[140] Even in the case of disputes with consumers, a shift in law enforcement into the private sphere can be observed. One prominent example of this are conflict resolution mechanisms of Internet platforms which take the place of state courts.[141] In principle, there can be no objection to this due to the private autonomy of the parties involved and to the principle of disposition as its continuation in civil procedural law,[142] as long as the participants agree on this form of dispute resolution in a self-determined manner. The same must therefore apply to the use of IT: It, too, may in principle be substituted by the participants for the state civil courts.[143]

However, a limit has again[144] been reached where there is such an imbalance between the contracting parties that there can no longer be talk of an autonomous decision to use IT. In this case, the state is called upon to compensate for this imbalance. If IT is used in such a way that it shifts the litigation risk and the burden of proof away from the typically inferior party, there cannot be an objection to this. It may even improve the enforcement of the law by, for example, eliminating rational apathy as a factor.[145] If, on the other hand, the use of IT leads to the inferior party bearing the litigation risk and the burden of proof contrary to their statutory allocation, the state must take compensatory action in order to maintain the monopoly of the civil courts on the use of force.

4. Prohibition of Groundless Surveillance

State or government-imposed law enforcement through IT moves in the area of tension between freedom and security.[146] IT only has the potential to ensure comprehensive compliance with the law if it monitors the behaviour of citizens at all times.[147] However, this ubiquitous surveillance is in conflict with the foundations of the rule of law.[148] IT which constantly monitors the behaviour of citizens gives them the feeling of being under constant state observation.[149] The GCC aptly describes this as a “diffuse feeling of threat”[150]. This feeling is not eliminated by the fact that the citizens do not notice the specific monitoring.[151] This may also lead to a specific change in behaviour as a result of a chilling effect.[152] Permissible but potentially inappropriate behaviour might be avoided for fear of surveillance and of the associated pressure.[153]

Although the GCC assumes that not every act of groundless surveillance violates the constitution per se,[154] it has so far made this statement only with a view to the subsequent investigation of criminal offences or demanded that preventive monitoring be linked to “dangerous or risky activities or to the control of specific sources of danger”[155]. Its case law, which dealt with the automated registration of licence plates in road traffic, does not, therefore, provide a blanket authorisation to carry out groundless surveillance of citizens. After all, the GCC itself has stated that surveillance without cause can only be permitted if it is not comprehensive.[156] It also calls for such surveillance to be allowed only where it serves to protect individual legal interests of considerable weight or similarly important public interests. This includes the bodily integrity, life and freedom of citizens as well as the existence and security of the Federation and the states.[157] These requirements must also apply to IT used for law enforcement.

D. Consequences for the Admissibility of IT Enforcement

What are the consequences of the challenges described above for the legal admissibility of IT enforcement? While this question cannot be answered conclusively in this paper, initial conclusions can be drawn from the results of the previous section. Naturally, these are not logically mandatory, but rather the result of a legal political evaluation by the authors which is intended to provide an impetus for the discussion which is just beginning.

I. Use of IT Only in Unambiguous Situations

The enforcement of the law using IT is limited for constitutional reasons where overblocking cannot be excluded as a consequence with sufficient certainty. In this case, the use of IT by the state or a similar order to private individuals disproportionately interfere with the fundamental rights of the citizens whose actions are prevented.[158] The question of how great the danger of overblocking is in each individual case must be answered by applying a strict standard in accordance with the principle of “in dubio pro libertate”[159]. Only where, on the one hand, there are no issues that are difficult to assess, either legally or factually, and, on the other hand, the possibility of justifying the conduct concerned is virtually excluded, the law should be enforced by IT. According to the current state of the art, the field of application is therefore very limited: In criminal law, for example, automatic copy protections which intervene as soon as the copier recognises that a banknote is to be reproduced fulfil those requirements.[160] In administrative law, the tobacco vending machine which only sells cigarettes after a proof of age by means of an identity card is another example.[161] However, the potential areas of application will increase as IT becomes more accurate in both factual and legal assessments.[162]

Where private individuals expose themselves to the risk of overblocking on the basis of an autonomous decision, this danger already today does not lead to the inadmissibility of the use of IT for law enforcement. However, restrictions must be imposed if the decision to use IT is not truly autonomous due to an imbalance between the parties involved.[163] If existing regulations which are intended to protect one of the parties threaten to run dry at the expense of the structurally inferior party, the state must prevent the use of IT by private individuals. For this reason, it is out of the question already today, for example, to determine in general terms and conditions that a contract is to be processed automatically by means of a smart contract.[164]

II. Consideration of Opportunities and Risks Concerning the Rule of Law in Individual Cases

If the danger of overblocking is ignored or if it is assumed that technical progress will make overblocking less likely or even non-existent in the future,[165] a state governed by the rule of law must nevertheless find answers to the possibilities of IT concerning the de facto enforcement of the law.[166] The question of whether this enforcement is desirable and, if so, at what price, touches – as discussed in the previous section – on fundamental questions concerning the rule of law which must ultimately lead to a debate on the legal philosophy.[167] In its final section, this paper aims to provide an impetus for this debate which can also be put into practice.

It is based on the hypothesis that an enforcement of all (legal) norms is not desirable in a liberal constitutional state. While it was still agreed in the 1980s that there was a comprehensive obligation to abide by the law,[168] it is certainly not possible to derive an obligation to enforce the law from such an obligation alone, even if it exists. On the contrary, the rule of law tolerates violations of some of the state’s rules and prohibitions. After all, it is not the violation of the law as such that is questionable from the point of view of the rule of law. It only becomes a problem where the rights of the citizens or other protected legal positions are violated.[169] However, the legal system can only prevent such violations by establishing abstract-general rules which typically cover such infringements. This goes hand in hand with the de facto freedom of the citizens to violate these legal norms if, from their point of view, no danger to the object of protection of the norm exists.

The legal order expects such violations, as it regularly attaches consequences to them.[170] If every person who is subject to the law were to comply with it, these consequences would be superfluous.[171] In some cases, for example, a penalty or a liability for damages is provided for and in some cases the (re-)establishment of the lawful state by force is ordered if necessary. In other cases, however, the legal system refrains from this. Examples of this in public law are the discretion of the prosecuting authority with regard to the prosecution of administrative offences, s 47 para 1 OWiG, as well as the respective material offences and the possibility of the public prosecutor to refrain from criminal prosecution, ss 153 ff of the German Code of Criminal Procedure (“Strafprozessordnung”, StPO), as well as that of the court to refrain from the punishment, s 60 StGB.[172] In the field of private law, the state does not take independent action against violations of the law in civil proceedings on the basis of the principle of disposition, but places their punishment in the hands of private individuals.[173] By charging costs for prosecution, it accepts that, in the case of minor infringements, enforcement of the law is rationally waived.[174] The fact that there is no threat of erosion to the rule of law if there is no full enforcement of the law can be derived from the fact that the fundamental rule of law in the Federal Republic of Germany is not in doubt although its citizens regularly shoplift, the prosecution of which is often waived according to s 153 StPO, run through red lights without a fine being imposed according to ss 25 para 3, 49 para 1 no 24 lit a StVO, or do not pay invoices without the payment being enforced by the state.

However, full enforcement of the law is not only not required or even mandated by the rule of law, but is even undesirable, as it goes hand in hand with the constitutional costs described in the previous section.[175] In order to resolve this issue, the disadvantages for the affected warranties of the rule of law should be weighed against the advantages of the full enforcement of the law made possible by using IT in each specific case.

The first consequence of this is trivial: IT should not be used for law enforcement where effective conventional means are available to achieve the desired goal – comprehensive compliance. The use of IT should therefore be avoided for legal standards which have already been enforced in full. An example of this is s 13 para 2 of the International Criminal Code (“Völkerstrafgesetzbuch”, VStGB) which prohibits the preparation of a war of aggression and for which no conviction has been handed down to date.[176] An upload filter for statements that contain planning actions within the meaning of s 13 para 2 VStGB could certainly be programmed. However, this would not provide a benefit for the enforcement of the law.

The decision on the use of IT is more difficult where it would actually lead to an increase in the compliance with the law. In this case, Rademacher suggests that the standards to be enforced should be examined to see whether they are designed for full enforcement of the law and that IT should refrain from enforcing the law where this is not the case. As an example of the latter, he cites standards which serve the purpose of so-called preliminary protection (“Vorfeldschutz”), i.e. standards which prohibit conduct which does not always violate protected legal interests.[177] This approach is a step in the right direction, as it is also based on the insight formulated above that the breach of the law is not problematic in itself, but because of the resulting violation of other legal positions.

However, the interest of the rule of law in using IT to prevent a violation of the law, which is to be compared to the risks which this enforcement poses to the rule of law, should be carved out in a two-part examination. On the one hand, the importance of the legal position which is protected by the law that ought to be enforced through IT should be assessed. This should be done in accordance with the provisions of the GCC as outlined above, according to which unfounded surveillance measures must be based on grounds which serve to protect individual legal interests of considerable weight or similarly important public interests.[178] As the citizens’ feeling of being under surveillance would not only be sporadic, but would exist at all times and anywhere,[179] a stricter standard should be applied than the GCC has lately established in its decisions for such measures.[180]

On the other hand, the likelihood of a violation of the legal position protected by the law that ought to be enforced through IT should be examined. While, for example, a shot from a pistol is very likely to result in an injury to life and limb, it is relatively unlikely that these two legal interests will be violated by the slight overstepping of the speed limit in road traffic.[181] The combination of these two parts of the examination results in the interest of the rule of law to prevent the violation of the law by using IT.

This interest should then be weighed against the resulting risks for the guarantees provided for by the rule of law which were described above.[182] In particular, the encroachment on the individual freedom to be allowed to live without constantly checking one’s own compliance with the law[183] and the value of the separation of powers in a state governed by the rule of law[184] will often play a major role. Therefore, state or government-imposed IT law enforcement should only be allowed in exceptional cases with a high probability of damage to important legal positions.

However, the offsetting items weigh less if the use of IT is voluntary. This applies in particular to the possibilities in private law described above where the use of IT is decided upon autonomously between the parties involved. Additionally, IT might also be used in public law in the form of nudging[185] in such a way that its users are warned of an impending violation of the law or that the violation is initially prevented, but that the IT may be switched off or overcome by the user at any time.

Ultimately, however, no schematic specifications can be made for the necessary weighing exercise. Rather, it should be carried out carefully in each individual case. This ensures that despite the enthusiasm concerning the opportunities which the use of IT for law enforcement undisputedly entails, its risks are not ignored.

V

V


* This paper was first published in German in the journal “Rechtswissenschaft”, 03/2019, p 374–407. Its translation is reprinted in this issue of Recht innovativ (Ri-nova) with the permission of the publisher.

** The author Bernzen received her doctorate in media and procedural law from the University of Osnabrück and is a trainee lawyer at the Higher Regional Court of Frankfurt/Main. The author Kehrberger holds a doctorate in civil procedural law from the Ruprecht-Karls-Universität Heidelberg, is a research fellow with Prof. Dr. Moritz Renner at the University of Mannheim and a legal trainee at the Higher Regional Court of Frankfurt/Main. The authors would like to thank Jan Böhle, LL.M. (Cambridge) and the peer reviewers at „Rechtswissenschaft“ for their valuable advice.

[1]  Volvo Car Germany GmbH, “Mit Kameras und Sensoren: Volvo kämpft gegen Ablenkung und Rauschmitteleinfluss während der Fahrt”, press release on 20/03/2019, available at <www.presseportal.de/pm/76941/4223471>; Auto, Motor und Sport, “Volvos bremsen gefährliche Fahrer aus”, www.auto-motor-und-sport.de on 21/03/2019, available at <www.auto-motor-und-sport.de/verkehr/volvo-tempolimit-180-km-h-kameraueberwachung/>, both last downloaded on 03/12/2019.

[2]  Volvo Car Germany GmbH (fn 1).

[3]  IT is understood in this article as electronic information and data processing on the basis of technical services and functions provided for this purpose, see the Wikipedia entry on “Informationstechnik” in the version from 07/11/2019, last edited by Astra66, available at <de.wikipedia.org/wiki/Informationstechnik>, last downloaded on 03/12/2019.

[4]  European Commission, Road safety: Commission welcomes agreement on new EU rules to save lives, press release on 26/03/2019, available at <europa.eu/rapid/press-release_IP-19-1793_en.htm>, last downloaded on 03/11/2019.

[5]  Cf A. Huxley, Brave New World, London: Vintage Publishing 2018.

[6]  Such is the vivid title of a paper on the future of legal informatics by B. Steinrötter, “Smarte Roboter in Richterrobe? Eine – auch rechtstheoretische – Grundsatzfrage”, Recht innovativ 2018, p 1.

[7]  The situation is different in Estonia, however, where a robo-judge is planned for civil disputes over claims of up to 7000 €, see E. Niiler, Can AI Be a Fair Judge in Court? Estonia Thinks So, www.wired.com on 25/03/2019, available at <www.wired.com/story/can-ai-be-fair-judge-court-estonia-thinks-so>, last downloaded on 03/12/2019.

[8]   C. Otto, “Die schöne neue Welt der Smart Contracts”, Recht innovativ 2017, p 24 (26). Examples for differing definitions can be found in the recent publications of A. Djazayeri, “Rechtliche Herausforderungen durch Smart Contracts”, jurisPR-BKR 12/2016 Anm. 1; K. Eschenbruch/R. Gerstberger, “Smart Contracts”, NZBau 2018, p 3; M. Finck, “Grundlagen und Technologie von Smart Contracts”, in: M. Fries/B. Paal (eds), “Smart Contracts”, Tübingen 2019, p 1 (1 ff); M. Fries, “Smart Contracts: Brauchen schlaue Verträge noch Anwälte?”, AnwBl 2018, p 86; M. Heckelmann, “Zulässigkeit und Handhabung von Smart Contracts”, NJW 2018, p 504; N. Hohn-Hein/G. Barth, “Immaterialgüterrechte in der Welt von Blockchain und Smart Contract”, GRUR 2018, p 1089 (1093); C. Jacobs/C. Lange-Hausstein, “Blockchain und Smart Contracts: zivil- und aufsichtsrechtliche Bedingungen”, ITRB 2017, p 10 (13); M. Kaulartz, “Herausforderungen bei der Gestaltung von Smart Contracts”, InTeR 2016, p 201; F. Möslein, “Smart Contracts im Zivil- und Handelsrecht”, ZHR 183 (2019), p 254 (260 ff); C. Paulus/R. Matzke, “Digitalisierung und private Rechtsdurchsetzung”, CR 2017, p 769 (771 f).

[9]  See, for example, W. Blocher, “The next big thing: Blockchain – Bitcoin – Smart Contracts”, AnwBl 2016, p 612 (618): “Program code that runs on a blockchain”; M. Kilian, “Die Zukunft der Juristen”, NJW 2017, p 3043 (3050): “smart contracting based on the blockchain technology”; D. Linardatos, “Smart Contracts – einige klarstellende Bemerkungen”, K&R 2018, p 85 (91): Smart contracts have “the peculiarity of aligning themselves with the blockchain technology”.

[10]  On the connection between the blockchain technology and smart contracts: F. Glatz, in: S. Breidenbach/F. Glatz (eds), “Rechtshandbuch Legal Tech”, Munich 2018, chap 5.3 paras 17 ff.

[11]  M. Kaulartz/J. Heckmann, “Smart Contracts – Anwendungen der Blockchain-Technologie”, CR 2016, p 618.

[12]  A. Börding/T. Jülicher/C. Röttgen/M. von Schönfeld, “Neue Herausforderungen der Digitalisierung für das deutsche Zivilrecht”, CR 2017, p 134 (138); Heckelmann, “Smart Contracts” (fn 8), p 505; F. Hofmann, “Smart contracts und Overenforcement”, in: M. Fries/B. Paal (eds), “Smart Contracts”, Tübingen 2019, p 125 (128); Hohn-Hein/Barth, “Immaterialgüterrechte” (fn 8), p 1093; Kaulartz, “Herausforderungen” (fn 8), p 203; Kaulartz/Heckmann, “Anwendungen” (fn 11), p 618; Linardatos, “Smart Contracts” (fn 9), p 90; F. Möslein, “Rechtliche Grenzen innovativer Finanztechnologien (FinTech): Smart Contracts als Selbsthilfe?”, ZBB 2018, p 208 (216); Paulus/Matzke, “Private Rechtsdurchsetzung” (fn 8), p 773; L. Specht, “Zum Verhältnis von (Urheber-)Recht und Technik”, GRUR 2019, p 253 (258).

[13]  Fries, “Smart Contracts” (fn 8), p 86; Hofmann, “Overenforcement” (fn 12), p 128; Hohn-Hein/Barth, “Immaterialgüterrechte” (fn 8), p 1093; Paulus/Matzke, “Private Rechtsdurchsetzung” (fn 8), p 772 f; T. Riehm, “Smart Contracts und verbotene Eigenmacht”, in: M. Fries/B. Paal (eds), “Smart Contracts”, Tübingen 2019, p 85 (86, 93 f); J. Schrey/T. Thalhofer, “Rechtliche Aspekte der Blockchain”, NJW 2017, p 1431; C. Simmchen, “Blockchain (R)Evolution”, MMR 2017, p 162 (164).

[14]  M. Müller, “Bitcoin, Blockchain und Smart Contracts”, ZfIR 2017, p 600 (610 f); Paulus/Matzke, “Private Rechtsdurchsetzung” (fn 8), p 772 f; Schrey/Thalhofer, “Blockchain” (fn 13), p 1431.

[15]  AXA SA, AXA goes Blockchain with fizzy, press release on 13/09/2017, available at <group.axa.com/en/newsroom/news/axa-goes-blockchain-with-fizzy>, last downloaded on 03/12/2019.

[16]  For detailed information on the technical workings of upload filters, see G. Kastl, “Filter – Fluch oder Segen?”, GRUR 2016, p 671 (672 ff).

[17]  See only A. Bernzen, “‘Fair use’ auch für uns Europäer”, FAZ Einspruch Magazin on 06/03/2019.

[18]  Art 13 para 1 of the Directive of the European Parliament and of the Council on copyright in the Digital Single Market from 14/09/2016, COM(2016) 593 final.

[19] Google Ireland Ltd., Use of Content ID, available at <support.google.com/youtube/answer/3244015?hl=en>, last downloaded on 03/12/2019.

[20]  On the question of the extent to which the use of such filters is necessary in order to exclude liability for a violation of trademark law: BGHZ 158, 236 (252) – Internet Auctions I; 172, 119 (134) – Internet Auctions II.

[21]  On the question of the extent to which the use of such filters is necessary in order to exclude liability for a violation of privacy law: LG Hamburg MMR 2015, p 61 (65 ff).

[22]  The topic is, however, widely discussed in Anglo-American literature, see only A. G. Ferguson, The Rise of Big Data Policing, New York: New York University Press 2017; C. M. Mulligan, Perfect Enforcement of Law: When to Limit and When to Use Technology, Richmond Journal of Law & Technology Volume XIV, Issue 4 (2008), p 1; M. L. Rich, Should We Make Crime Impossible?, Harvard Journal of Law & Public Policy 36 (2013), p 795.

[23]  L. Breidenbach, “Verträge in der Krise”, Rethinking Law 1/2018, p 38 (40 f).

[24]  N. Kuhlmann, “Legal Tech in einer smarten Welt – Ermöglichungs- und Beschränkungspotenzial”, in: J. Taeger (ed), “Smart World – Smart Law? Weltweite Netze mit regionaler Regulierung”, Oldenburg 2016, p 1039 (1046).

[25]  N. Kuhlmann, “Smart Enforcement bei Smart Contracts”, in: M. Fries/B. Paal (eds), “Smart Contracts”, Tübingen 2019, p 117 (119).

[26]  Conceptually perhaps going back to P. Susskind, Tomorrow’s Lawyers, Oxford: Oxford University Press 2013, p 46 f.

[27]  Kuhlmann, “Legal Tech” (fn 24), p 1047.

[28]  Möslein, “FinTech” (fn 12), p 215.

[29]  See above B. I. 2.

[30]  Proposal for a Regulation of the European Parliament and of the Council on the prevention of the dissemination of terrorist content online from 12/09/2018, COM(2018) 640 final.

[31] Kuhlmann, “Legal Tech” (fn 24), p 1048.

[32]  W. Pluta, Die personalisierte Waffe, golem.de on 04/07/2014, available at <glm.io/107645?m>, last downloaded on 03/12/2019.

[33] N. Kuhlmann, “Recht auf Rechtsbruch?”, FAZ Einspruch Magazin on 22/08/2018.

[34]  Kuhlmann is particularly interested in these, see Kuhlmann, “Legal Tech” (fn 24), p 1046; N. Kuhlmann, “Smart Contracts und Embedded Legal Knowledge”, Rethinking Law 1/2018, p 32; Kuhlmann, “Rechtsbruch” (fn 33).

[35]  See for example ADAC e.V., “Studie Intelligent Speed Adaptation (2018)”, available at <www.adac.de/infotestrat/tests/assistenzsysteme/intelligente_geschwindigkeitsassistenten_2018/default.aspx>, last downloaded on 03/12/2019.

[36]  See for example Auto, Motor und Sport, “Wir vergleichen fünf Systeme”, www.auto-motor-und-sport.de on 13/08/2016, available at <www.auto-motor-und-sport.de/test/adaptive-tempomaten-im-test-wir-vergleichen-fuenf-systeme/>, last downloaded on 03/12/2019.

[37]  For additional examples see N. Kuhlmann, “Legal Tech – Zugang zum Recht im Zeitalter der Digitalisierung”, in: C. Bär/T. Grädler/R. Mayr (eds), “Digitalisierung im Spannungsfeld von Politik, Wirtschaft, Wissenschaft und Recht – 2. Band: Wissenschaft und Recht”, Wiesbaden 2018, p 88 (96 ff).

[38]  T. Rademacher, “Wenn neue Technologien altes Recht durchsetzen: Dürfen wir es unmöglich machen, rechtswidrig zu handeln?”, JZ 2019, p 702 with fn 2. The term goes back to Rich, Crime (fn 22), p 802 ff.

[39]  Cf L. Lessig, Code v2, New York: Basic Books 2006, p 120 ff, 342 ff: “real-life code”.

[40]  See Rich, Crime (fn 22), p 802, who, however, does not consider these measures an “impossibility structure”.

[41]  Cf on their use for suicide BVerwGE 158, 152; BVerwG RDG 2019, p 196.

[42]  See also Rademacher, “Neue Technologien” (fn 38), p 703.

[43]  See only T. Gerpott, “Artikel 17 der neuen EU-Urheberrechtsrichtlinie: Fluch oder Segen?”, MMR 2019, p 420 (422); Kastl, “Filter” (fn 16), p 678. Kuhlmann, “Smart Enforcement” (fn 25), p 122 f on the other hand uses this term as it is used in this paper, namely to more generally refer to the excessive enforcement of the law,.

[44]  Rademacher, “Neue Technologien” (fn 38), p 706 f speaks of “spread width” (“Streubreite”) instead, but uses the term to refer to the same phenomenon.

[45]  See Hofmann, “Overenforcement” (fn 12), p 127; Hohn-Hein/Barth, “Immaterialgüterrechte” (fn 8), p 1095; Kaulartz/Heckmann, “Anwendungen” (fn 11), p 620, 623; Kuhlmann, “Smart Enforcement” (fn 24), p 122 f; Müller, “Bitcoin” (fn 14), p 610; Simmchen, “Blockchain” (fn 13), p 164.

[46]  Jacobs/Lange-Hausstein, “Blockchain” (fn 8), p 13. Cf for the requirements concerning the interpretation of blanket clauses M. Auer, “Materialisierung, Flexibilisierung, Richterfreiheit”, Tübingen 2005, p 144 ff.

[47]  Möslein, “Smart Contracts” (fn 8), p 288 ff; Paulus/Matzke, “Smart Contracts und Smart Meter – Versorgungssperre per Fernzugriff”, NJW 2018, p 1905 (1910); Schrey/Thalhofer, “Blockchain” (fn 13), p 1436.

[48]  See on this issue BVerfG NJW 2009, p 3642; G. Bitter/C. Goos, “Rechtsschutz gegen Verkehrszeichen”, JZ 2009, p 740; D. Kettler, “Beginn der Widerspruchsfrist bei Verkehrszeichen”, SVR 2010, p 293.

[49]  See only J. Bülte, “Zu den Gefahren der Geldwäschebekämpfung für Unternehmen, die Rechtsstaatlichkeit und die Effektivität der Strafverfolgung”, NZWiSt 2017, p 276 (280); P. Häberle, in: G. Erbs (founder)/M. Kohlhaas (prior ed)/P. Häberle (ed), “Strafrechtliche Nebengesetze”, 224th supplement, Munich March 2019, s 43 GWG para 3; T. Park, “Geldwäscheverdachtpflicht von Banken bei Kunden-Selbstanzeigen gemäß § 371 AO aufgrund des Geldwäsche-Rundschreibens der BaFin vom 5.3.2014?”, NZWiSt 2015, p 59.

[50]  See only M. Fromont, “Grands systèmes de droit étrangers”, 8th ed, Paris: Dalloz 2018, § 2 II; K. Zweigert/H. Kötz, “Einführung in die Rechtsvergleichung”, 3rd ed, Tübingen 1996, p 62 ff, 250 ff.

[51]  J. Masing, “Die Ambivalenz von Freiheit und Sicherheit”, JZ 2011, p 753 (755).

[52]  This aspect is emphasised by A. Zuckerman, Quality and Economy in Civil Procedure, 14 Oxford Journal of Legal Studies (1994), p 355; A. Zuckerman, A Reform of Civil Procedure, 22 Journal of Law & Society (1995), p 155 (160 ff); A. Zuckerman, No justice without lawyers, Civil Justice Quarterly 2014, 33(4), p 355 (364 f).

[53]  BVerfGE 141, 220 (paras 103 ff) with citations of its previous rulings.

[54]  BVerfGE 141, 220 (para 103).

[55]  Cf Rademacher, “Neue Technologien” (fn 38), p 703.

[56]  BVerfGE 141, 220 (para 104; emphasis added). Cf BVerfG NJW 2019, 827 (paras 96 ff).

[57]  See only T. Kingreen/R. Poscher, “Polizei- und Ordnungsrecht”, 10th ed, Munich 2018, § 2.

[58]  Concerning this concept of danger see only C. Trurnit, in: M. Möstl/C. Trurnit (eds), “BeckOK Polizeirecht Baden-Württemberg”, 15th ed, Munich 15/06/2019, s 1 paras 18 ff.

[59]  C. O’Neil, Weapons of Math Destruction, New York: Crown 2016, gives numerous illustrative examples.

[60]  Cf M. Melin, Here’s what actually caused the 2010 “Flash Crash”, www.businessinsider.de on 30/01/2016, available at <www.businessinsider.de/what-actually-caused-2010-flash-crash-2016-1>, last downloaded on 03/12/2019.

[61]  Cf S. Lohr, Facial Recognition Is Accurate, if You’re a White Guy, www.nytimes.com on 09/02/2018, available at <www.nytimes.com/2018/02/09/technology/facial-recognition-race-artificial-intelligence.html>, last downloaded on 03/12/2019, on this specific question and on the general issues with facial recognition.

[62] M. Fries also refers to this principle in the title of his paper “Smart Contracts: Pacta sunt servanda?”, Rethinking Law 1/2018, p 46.

[63]  Eschenbruch/Gerstberger, “Smart Contracts” (fn 8), p 4; R. Matzke, “Smart Contracts statt Zwangsvollstreckung?“, in: M. Fries/B. Paal (eds), “Smart Contracts”, Tübingen 2019, p 99 (108 f).

[64]  This is settled case law, see only BGHZ 33, 236 (237 f); 207, 296 (para 33); BGH NJW 2000, p 2106 (2107); NJW 2016, p 1230 (para 36); NJW 2017, p 3145 (para 15).

[65]  See for example K. Linhart, “Das System der Anspruchsgrundlagen, Einwendungen und Einreden in der Zivilrechtsklausur“, JA 2006, p 266 (267 ff).

[66]  See above B. I. 1.

[67]  See for example LG Heidelberg NJWE-MietR 1997, 99; KreisG Görlitz, Urt. v. 12/29/1992, 7 C 372/92, WuM 1993, 113.

[68]  Paulus/Matzke, “Private Rechtsdurchsetzung” (fn 8), p 772.

[69]  Möslein, “Smart Contracts” (fn 8), p 279 f, gives numerous additional examples of cases where what is owed contractually differs from what is enforced through technology.

[70]  Hofmann, “Overenforcement” (fn 12), p 132 refers to this as “underenforcement”.

[71]  See only s 823 para 1 BGB: “A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.” (emphasis added).

[72]  See only H. Sprau, in: O. Palandt (founder), “Bürgerliches Gesetzbuch”, 78th ed, Munich 2019, s 823 para 95; A. Teichmann, in: O. Jauernig (founder)/R. Stürner (ed), “Bürgerliches Gesetzbuch”, 17th ed, Munich 2018, s 823 para 67; G. Wagner, in: F. Säcker/R. Rixecker/H. Oetker/B. Limperg (eds), “Münchener Kommentar zum Bürgerlichen Gesetzbuch”, vol 6, 7th ed, Munich 2017, s 823 paras 7, 364.

[73]  See BGH NJW 2000, p 3421 – Babycaust.

[74]  Bernzen, “Fair Use” (fn 17); Specht, “Recht und Technik” (fn 12), p 257. Rejecting the possibility: C. Schnabel, “Böse Zensur, guter Filter?”, MMR 2008, p 281 (283, 286); J. Steinbrecher, “Uploadfilter: Kreative Insolvenz versus Tod des freien Netz”, K&R Die erste Seite 2018, Nr. 07–08 as well as, at least at the current state of the art, Gerpott, “EU-Urheberrechtsrichtlinie” (fn 43), p 423.

[75]  See only W. Schulz, in: H. Ahlberg/H. Götting (eds), “BeckOK Urheberrecht”, 24th ed, Munich 15/04/2019, s 51 para 14 with further citation.

[76]  See generally for copyright and trademark law: Kastl, “Filter” (fn 16), p 673.

[77]  See for the latter G. Managakis, “Die Pflichtenkollision als Grenzsituation des Strafrechts”, ZStW 84 (1972), p 447; H. Schlehofer, in: W. Joecks/K. Miebach (eds), “Münchener Kommentar zum Strafgesetzbuch”, vol 1, 3rd ed, Munich 2017, before s 32 paras 237 ff.

[78]  V. Erb, in: W. Joecks/K. Miebach (eds), “Münchener Kommentar zum Strafgesetzbuch”, vol 1, 3rd ed, Munich 2017, s 34 para 3; W. Perron, in: A. Schönke/H. Schröder (founders), “Strafgesetzbuch”, 30th ed, Munich 2019, s 34 paras 53 f.

[79]  Cf only T. Lenckner, “Der Grundsatz der Gütergewichtung als Basis der Rechtfertigung”, GA 1985, p 295; P. Noll, “Tatbestand und Rechtwidrigkeit: Die Wertgewichtung als Prinzip der Rechtfertigung”, ZStW 77 (1965), p 1 (9 ff); Schlehofer (fn 77), before s 32 paras 58 ff with further citation.

[80]  Schlehofer (fn 77), before s 32 para 58.

[81]  Schlehofer (fn 77), before s 32 para 58; D. Sternberg-Lieben, in: A. Schönke/H. Schröder (founders), “Strafgesetzbuch”, 30th ed, Munich 2019, before s 32 para 4. Critical concerning the equivalence of prohibition and permission norms in criminal law: T. Grosse-Wilde, “Handlungsgründe und Rechtfertigungsgründe”, ZIS 2011, p 83 (85 ff). Admittedly, the weighing of goods is not a general principle underlying all criminal justifications, and this paper does not attempt to establish such a principle underlying all justifications. For a monographic approach to this issue see only C. Schmid, “Das Verhältnis von Tatbestand und Rechtswidrigkeit aus Rechtsstheoretischer Sicht”, Berlin 2002, and H.-U. Paefgen/B. Zabel, in: U. Kindhäuser/U. Neumann/H.-U. Paefgen (eds), “NomosKommentar Strafgesetzbuch”, vol 1, 5th ed, Baden-Baden 2017, before ss 32 ff paras 6 ff; Schlehofer (fn 77), before s 32 paras 57 ff.

[82]  Cf OLG Hamm NJW 1996, p 2437.

[83]  KG Berlin NZV 1993, p 362.

[84]  Cf B. Lorenz, “Wann ist das Überfahren einer roten Ampel erlaubt?”, NZV 2015, p 471.

[85]  This classification is adopted by the prevailing legal opinion. See for the state of the discussion with further citations W. Joecks/C. Level/J. Regge, in: W. Joecks/K. Miebach (eds), “Münchener Kommentar zum Strafgesetzbuch”, vol 1, 3rd ed, Munich 2017, s 193 para 1.

[86]  See only Joecks/Pegel/Regge (fn 85), s 193 paras 40 ff.

[87]  See above C. I. 3. a. bb.

[88]  On the justification in criminal law: Noll, “Wertgewichtung” (fn 79), p 10.

[89]  On this complexity: Lenckner, “Güterabwägung” (fn 79), p 300 f.

[90]  For this requirement in general see only BVerfGE 16, 194 (201 f); M. Gentz, “Zur Verhältnismäßigkeit von Grundrechtsvorhaben”, NJW 1968, p 1600 (1601); B. Grzeszick, in: T. Maunz/G. Dürig (founders), “Grundgesetz”, 86th supplement, Munich January 2019, art 20 para 107; C. Hillgruber, in: J. Isensee/P. Kirchhof (eds), “Handbuch des Staatsrechts der Bundesrepublik Deutschland”, vol IX, 3rd ed, Heidelberg 2011, s 201 para 51.

[91]  This is settled case law, see only BVerfGE 27, 344 (352); 115, 320 (para 82); 118, 168 (para 116); 120, 224 (paras 34 ff); 120, 274 (para 218).

[92]  This is settled case law, see only BVerfGE 30, 292 (316); 115, 320 (para 88); 118, 168 (para 125); 125, 260 (para 317); 126, 112 (para 120).

[93]  Kuhlmann, “Smart Enforcement” (fn 24), p 123, makes a similar argument when he states that the state may meet its obligation to protect fundamental rights with the help of IT.

[94]  Cf for artistic freedom BVerfGE 142, 74 (para 65) and for media freedoms BVerfG NJW 2012, p 754 (para 10).

[95]  This paper does not assert any fundamental structure concerning justifications in criminal law in this regard.

[96]  Oftentimes, only a (subjectively construed) “interest in the enforcement of the law” is mentioned, see for example Perron (fn 78), s 34 para 1 (explicitly claiming a subjective right for the justification of necessity, however: W. Perron/J. Eisele, in: A. Schönke/H. Schröder (founders), “Strafgesetzbuch”, 30th ed, Munich 2019, s 32 para 1), or an interest of the protected persons to “assert themselves”, see Erb (fn 78), s 34 para 4; U. Neumann, in: U. Kindhäuser/U. Neumann/H.-U. Paefgen (eds), “NomosKommentar Strafgesetzbuch”, vol 1, 5th ed, Baden-Baden 2017, s 34 para 5. This thought can be traced back to Hegel, “Grundlinien der Philosophie des Rechts”, Berlin 1820, s 127. See also Neumann (fn 96), s 34 para 1.

[97]  H.J. Hirsch, in: B. Jähnke/H. W. Laufhütte/W. Odersky (eds), “Leipziger Kommentar zum Strafgesetzbuch”, 11th ed, Berlin Reprint 2018, s 34 para 1; R. Keller, “Rechtliche Grenzen der Provokation von Straftaten”, Berlin 1989, p 282 ff; J. Renzikowski, “Notstand und Selbstwehr”, Berlin 1994, p 193 f; J. Renzikowski, “Intra- und extrasystematische Rechtfertigungsgründe”, Jahrbuch für Recht und Ethik 13 (2005), p 643 (652).

[98]  That, arguably, additional objective grounds may be necessary to justify in particular the justification of self-defence is not relevant in the context of this paper. For a comprehensive analysis of this issue see only T. Rönnau/K. Hohn, in: G. Cirener et al (eds), “Leipziger Kommentar StGB Online”, 13th ed, 2nd version, Berlin 2019, s 32 paras 62 ff. For a critical approach to this issue see J. Bülte, “Zur Verhältnismäßigkeit der Notwehr und Art. 103 Abs. 2 GG als Schranken-Schranke”, NK 2016, p 172.

[99]  Bülte, “Verhältnismäßigkeit” (fn 98), p 179 ff; V. Erb, “Notwehr als Menschenrecht”, NStZ 2005, p 593 (594 f); Erb (fn 78), s 32 paras 2 ff; Keller, “Provokation” (fn 97), p 280 ff; U. Kindhäuser, in: U. Kindhäuser/U. Neumann/H.-U. Paefgen (eds), “NomosKommentar Strafgesetzbuch”, vol 1, 5th ed, Baden-Baden 2017, s 32 para 9 ff; H. Matt, “Eigenverantwortlichkeit und Subjektives Recht im Notwehrrecht”, NStZ 1993, p 271 (272 f); Perron/Eisele (fn 96), s 32 para 1.

[100]  See only Joecks/Pegel/Regge (fn 85), s 193 paras 12 ff.

[101]  See also Möslein, “Smart Contracts” (fn 8), p 267.

[102]  J. Grapentin, “Die Erosion der Vertragsgestaltungsmacht durch das Internet und den Einsatz Künstlicher Intelligenz”, NJW 2019, p 181.

[103]  Cf BGHZ 200, 326 (para 31).

[104]  BVerfGE 81, 242 (254 f); BGHZ 200, 326 (para 31).

[105]Grapentin, “Erosion” (fn 102), p 182.

[106]  M. Cornils, in: J. Isensee/P. Kirchhof (eds), “Handbuch des Staatsrechts”, vol VII, 3rd ed, Heidelberg 2009, § 168 paras 1 ff; U. di Fabio, in: T. Maunz/G. Dürig (founders), “Grundgesetz”, 86th supplement, Munich January 2019, art 2 paras 1 ff; H. Dreier, “Der freiheitliche Verfassungsstaat als riskante Ordnung”, RW 2010, p 11 (21 ff); W. Kahl, in: D. Merten/H.-J. Papier (eds), “Handbuch der Grundrechte in Deutschland und Europa”, vol V, Heidelberg 2013, § 124 paras 29 ff. See also BVerfGE 6, 32 (42): “fundamental presumption of freedom of art 2 para 1 GG”.

[107]  BVerfGE 144, 20 (para 540); di Fabio (fn 106), art 2 paras 1 ff with reference to Dürig’s commentary in the previous edition; Kahl (fn 106), § 124 para 29.

[108]  BVerfGE 144, 20 (para 540).

[109]  Di Fabio (fn 106), art 2 para 1.

[110]  Kahl (fn 106), § 124 para 30.

[111]  BVerfGE 115, 320 (para 117); Masing, “Ambivalenz” (fn 51), p 756 f.

[112]  Masing, “Ambivalenz” (fn 51), p 757.

[113]  This formula goes back to G. Dürig, “Der Grundrechtssatz von der Menschenwürde”, AöR 81 (1956), p 117 (127). In addition, it is the settled case law of the GCC, see only BVerfGE 27, 1 (6); 30, 1 (25 f, 39 ff); 96, 375 (399); 122, 248 (para 69); 144, 20 (para 539).

[114]  See again BVerfGE 144, 20 (para 540): “The unconditional subordination of a person to a collective, an ideology or a religion constitutes a disregard of the value which each human being has for their own sake, by virtue of their personhood […]”.

[115]  As Kahl (fn 106), § 124 para 30 states: no “unrestrained and reckless ‘Robinson Crusoe freedom’”.

[116]  See only S. Smid, “Rechtsprechung: zur Unterscheidung von Rechtsfürsorge und Prozess”, Cologne et al 1990, p 6 ff, 48 ff with further citations as well as earlier J. Locke, Two Treatises of Government, London: Awnsham Churchill 1690, I, § 131; C. Montesquieu, “De l’Esprit des Lois”, Geneva: Barrillot & Fils 1748, XI, 6.

[117]  See only BVerfGE 54, 277 (291 ff); 85, 337 (345 ff); 88, 118 (123 ff); 101, 275 (para 119); 107, 395 (paras 14 ff); H. Maurer, “Rechtsstaatliches Prozessrecht”, in: P. Badura/H. Dreier (eds), “Festschrift 50 Jahre Bundesverfassungsgericht”, vol 2, Tübingen 2001, p 467 (491 f); H. Papier, in: J. Isensee/P. Kirchhof (eds), “Handbuch des Staatsrechts der Bundesrepublik Deutschland”, vol VIII, 3rd ed, Heidelberg 2010, § 176 para 1; A. Uhle, “Das Recht auf wirkungsvollen Rechtsschutz”, in: D. Heckmann/R. Tavern/G. Sydow (eds), “Verfassungsstaatlichkeit im Wandel: Festschrift für Thomas Würtenberger zum 70. Geburtstag”, Berlin 2013, p 935.

[118]  See only the detailed decision of the GCC’s plenum in BVerfGE 107, 395 (paras 19, 32): “The guarantee of a single judicial decision on an asserted right aims at bringing conflicts over a possible infringement of a right to an examination and a final decision. […] The fundamental procedural rights, in particular those of art 101 para 1 and art 103 para 1 GG, ensure compliance with constitutional minimum standards in the form of a right similar to a fundamental right. In a state governed by the rule of law, a constitutional guarantee includes the possibility of at least one judicial review of its observance.”

[119]  Cf comprehensively M. Funke-Kaiser, in: J. Bader/M. Funke-Kaiser/T. Stuhlfauth/J. von Albedyll (eds), “Verwaltungsgerichtsordnung”, 7th ed, Heidelberg 2018, before ss 80 ff paras 1 ff; F. Schoch, “Vorläufiger Rechtsschutz und Risikoverteilung im Verwaltungsrecht”, Heidelberg 1988, p 1116 ff; F. Schoch, in: F. Schoch/J. Schneider/W. Bier (eds), “Verwaltungsgerichtsordnung”, 36th supplement, Munich February 2019, s 80 paras 11 ff.

[120]  See only J. Pietzcker, in: F. Schoch/J. Schneider/W. Bier (eds), “Verwaltungsgerichtsordnung”, 36th supplement, Munich February 2019, s 42 para 1 paras 7 ff; P. Stelkens, in: P. Stelkens/H. Bonk (founders)/M. Sachs (ed), “Verwaltungsgerichtsordnung”, 9th ed, Munich 2018, s 35 paras 142 ff.

[121]  See only I. Drescher, in: T. Rauscher/W. Krüger (eds), “Münchner Kommentar zur Zivilprozessordnung”, vol 2, 5th ed, Munich 2016, before s 916 para 7; L. Haertlein, in: J. Kindl/C. Meller-Hannich/H.-J. Wolf (eds), “Gesamtes Recht der Zwangsvollstreckung”, 3rd ed, Baden-Baden 2015, before s 916 ZPO para 68; H. Mayer, in: V. Vorwerk/C. Wolf (eds), “BeckOK ZPO”, 33rd ed, Munich 01/07/2019, s 916 para 11. Naturally, there are exceptions to this principle, see Haertlein (fn 121), s 935 paras 34 ff.

[122]  See only BVerfGE 34, 269 (286 ff); 82, 6 (12); S. Drechsler, “Grundlagen und Grenzen der richterlichen Rechtsfortbildung”, ZJS 2015, p 344; W. Habscheid, “Richtermacht oder Parteifreiheit”, ZZP 81 (1968), p 175 (189); J. Ipsen, “Richterrecht und Verfassung”, Berlin 1975, p 195 ff and passim; K. Langenbucher, “Die Entwicklung und Auslegung von Richterrecht”, Munich 1996, p 40 ff; K. Larenz, “Methodenlehre der Rechtswissenschaft”, 6th ed, Berlin et al 1991, p 367 ff; F. Maultzsch, “Streitentscheidung und Normbildung durch den Zivilprozess”, Tübingen 2010, p 1 ff; 252 ff; H. Unberath, “Der Zweck der Rechtsmittel nach der ZPO-Reform”, ZZP 120 (2007), p 323 (332 ff).

[123]  See above C. I. 1.

[124]  Cf Auer, “Materialisierung” (fn 46), p 42 ff. Comprehensively on the effects of the changed ideas on private law: C. Canaris, “Wandlungen des Schuldvertragsrechts – Tendenzen zu seiner ‚Materialisierung‘”, AcP 200 (2000), p 273.

[125] M. Becker, “Von der Freiheit, rechtswidrig handeln zu können”, ZUM 2019, p 636 (642).

[126]  See only O. Jauernig/B. Hess, “Zivilprozessrecht”, 30th ed, Munich 2011, s 1 paras 1 ff; R. Kehrberger, “Die Materialisierung des Zivilprozessrechts”, Tübingen 2019, p 293 ff.

[127]  An important exception is contained in ss 229, 859 BGB, see Möslein, “FinTech” (fn 12), p 219; Möslein, “Smart Contracts” (fn 8), p 282 f; C. Otto, “Bermudadreieck Ethereum: wo Recht derzeit baden geht”, Recht innovativ 2017, p 86 (93); Paulus/Matzke, “Private Rechtsdurchsetzung” (fn 8), p 776.

[128]  See Kehrberger, “Materialisierung” (fn 126), p 293 ff; Möslein, “FinTech” (fn 12), p 219.

[129]  Hofmann, “Overenforcement” (fn 12), p 133; Matzke, “Zwangsvollstreckung” (fn 63), p 99; Otto, “Bermudadreieck” (fn 127), p 93; Paulus/Matzke, “Private Rechtsdurchsetzung” (fn 8), p 773.

[130]  Djazayeri, “Herausforderungen” (fn 8). Möslein, “FinTech” (fn 12), p 219 uses the similar term of “preventive self-help”.

[131] Becker, “Freiheit” (fn 125), p 640; Hofmann, “Overenforcement” (fn 12), p 129; Matzke, “Zwangsvollstreckung” (fn 63), p 113; Möslein, “FinTech” (fn 12), p 218 f; Paulus/Matzke, “Private Rechtsdurchsetzung” (fn 8), p 770.

[132]  See only H. Ahrens, in: B. Wieczorek/R. Schütze (eds), “Zivilprozessordnung und Nebengesetze”, vol 4, 4th ed, Berlin 2013, s 286 paras 30 ff; U. Foerste, in: H. Musielak/W. Voit (eds), “Zivilprozessordnung”, 16th ed, Munich 2019, s 286 para 35; F. Stein, “Die Darlegungs- und Beweislast im Zivilprozess – Ein Überblick”, JuS 2016, p 896 (897).

[133] H. Anzinger, “Smart Contracts in der Sharing Economy”, in: M. Fries/B. Paal (eds), “Smart Contracts”, Tübingen 2019, p 33 (57); Fries, “Smart Contracts” (fn 8), p 88; Matzke, “Zwangsvollstreckung” (fn 63), p 113; Möslein, “Smart Contracts” (fn 8), p 284; Riehm, “Verbotene Eigenmacht” (fn 13), p 89.

[134]  For the usual standard of proof see only Ahrens (fn 132), s 286 para 33; K. Bacher, in: V. Vorwerk/C. Wolf (eds), “BeckOK ZPO”, 33rd ed, Munich 01/07/2019, s 286 para 2; Foerste (fn 132), s 286 para 18.

[135]  Matzke, “Zwangsvollstreckung” (fn 63), p 110; Möslein, “Smart Contracts” (fn. 8), p 283; Paulus/Matzke, “Fernzugriff” (fn 47), p 1910. This applies in particular to the advance on court costs, without the payment of which the court must not act in civil law disputes according to s 12 para 1 subpara 1 of the German Law on Court Costs (“Gerichtskostengesetz”, GKG) and which the claimant must pay pursuant to s 22 para 1 subpara 1 GKG.

[136]  The term is used in accordance with C. Meller-Hannich, “Verbraucherschutz im Schuldvertragsrecht”, Tübingen 2005, p 268. In addition see only J. Buchner, “Kollektiver Rechtsschutz für Verbraucher in Europa”, Göttingen 2015, p 30; C. Geiger, “Kollektiver Rechtsschutz im Zivilprozess”, Tübingen 2015, p 10, 26; R. Koch, “Grund und Grenzen kollektiver Rechtsdurchsetzung”, DZWIR 2016, p 351 (353 ff); D. Poelzig, “Normdurchsetzung durch Privatrecht”, Tübingen 2012, p 530 ff; A. Stadler, “Kollektiver Rechtsschutz quo vadis?”, JZ 2018, p 793 (795 f).

[137]  See Poelzig, “Normdurchsetzung” (fn 136), p 531.

[138] Specht, “Recht und Technik” (fn 12), p 259.

[139]  Fries, “Smart Contracts” (fn 8), p 88.

[140]V. Boehme-Neßler, “Die Macht der Algorithmen und die Ohnmacht des Rechts”, NJW 2017, p 3031 (3037).

[141]  Grapentin, “Erosion” (fn 102), p 183. M. Fries, “PayPal Law und Legal Tech – Was macht die Digitalisierung mit dem Privatrecht?”, NJW 2016, p 2860 (2861) and Matzke, “Zwangsvollstreckung” (fn 63), p 110 at fn 50, both cite PayPal’s buyer protection programme as an example (for its classification under civil law see BGHZ 217, 33).

[142]  See on this principle comprehensively C. Kern, in: F. Stein/M. Jonas (founders)/R. Bork/H. Roth (eds), “Kommentar zur Zivilprozessordnung”, vol 2, 23rd ed, Tübingen 2016, before s 128 paras 161 ff.

[143]  See also Möslein, “Smart Contracts” (fn 8), p 282.

[144]  See above C. I. 4.

[145]  Cf Anzinger, “Sharing Economy” (fn 133), p 57; Fries, “Smart Contracts” (fn 8), p 88; M. Fries, “Schadensersatz ex machina”, NJW 2019, p 901 (904); N. Guggenberger, “Umkehr der Durchsetzungslast beim PayPal-Käuferschutz”, NJW 2018, p 1057 (1059 f).

[146]  Writing comprehensively on this area of tension: U. di Fabio, “Sicherheit in Freiheit”, NJW 2008, p 421; Masing, “Ambivalenz” (fn 51), p 753.

[147]  Cf Rademacher, “Neue Technologien” (fn 38), p 703.

[148]  Cf BVerfGE 107, 299 (paras 66 ff); 115, 320 (paras 116 ff); 120, 378 (paras 78 ff); 125, 260 (para 241); BVerfG NJW 2019, p 827 (paras 98 ff).

[149]  On the much less invasive automatic registration of licence plates see, for example, BVerfGE 120, 378 (para 78); BVerfG NJW 2019, p 827 (para 98), but also the early decision in BVerfGE 65, 1 (43). Additionally and with further citations: M. Oermann/J. Staben, “Mittelbare Grundrechtseingriffe durch Abschreckung”, Der Staat 2013, p 630 (640 ff); P. Schanz, “Rechtsschutz durch strategische Fernmeldeüberwachung: Ein ‘blinder Fleck’ im Rechtsstaat?”, NVwZ 2015, p 873 (875 f); T. Schwabenbauer, “Heimliche Grundrechtseingriffe”, Tübingen 2013, p 140 ff. On the related issue of predictive policing see in detail I. Härtel, “Digitalisierung im Lichte des Verfassungsrechts – Algorithmen, Predictive Policing, autonomes Fahren”, LKV 2019, p 49 (54 ff).

[150]  BVerfGE 125, 260 (para 241).

[151]  See only BVerfGE 120, 378 (para 79); BVerfG NJW 2019, p 827 (para 98).

[152]  BVerfGE 107, 299 (paras 66 ff); 115, 320 (para 117); 125, 260 (para 233); BVerfG NJW 2019, p 1366 (para 15).

[153]  See only J. Staben, “Der Abschreckungseffekt auf die Grundrechtsausübung”, Tübingen 2016, p 75 ff and passim with further citations.

[154]  BVerfG NJW 2019, p 827 (para 94). Rademacher, “Neue Technologien” (fn 38), p 709 f is critical of this.

[155]  BVerfG NJW 2019, p 827 (para 94).

[156]  BVerfG NJW 2019, p 827 (para 100).

[157]  BVerfG NJW 2019, p 827 (para 99) with further citations.

[158]  See above C. I. 4.

[159]  Cf BVerfGE 6, 32 (42): “fundamental presumption of freedom of art 2 para 1 GG”. See above, although against a different background, C. II. 1. See additionally and with further citations: J. Kokott, “Beweislastverteilung und Prognoseentscheidungen bei der Inanspruchnahme von Grund- und Menschenrechten”, Berlin 1993, p 84 f; T. Mußhoff, “Strafe – Maßregel – Sicherungsverwahrung”, Frankfurt 2008, p 390 f; P. Schneider, “In Dubio pro Libertate”, in: E. v. Caemmerer (ed), “Hundert Jahre Deutsches Rechtsleben”, vol 2, Karlsruhe 1960, p 263.

[160]  See above B. II. 1.

[161]  See above B. II. 2.

[162]  Rademacher, “Neue Technologien” (fn 38), p 707, arrives at the same conclusion but apparently considers IT’s abilities to be greater already today than the authors of this essay do.

[163]  See above C. I. 4.

[164]  Schrey/Thalhofer, “Blockchain” (fn 13), p 1436, for whom the applicability of s 309 no 2 BGB or of s 307 paras 1, 2 BGB is “very obvious” and Möslein, “FinTech” (fn 12), p 218 f, 221, who considers lit. q of the annex to the Directive 93/13/EEC on unfair terms in consumer contracts to be relevant, make similar arguments. Fries, “Smart Contracts” (fn 8), p 87; N. Schawe, “Blockchain und Smart Contracts in der Kreativwirtschaft – mehr Probleme als Lösungen“, MMR 2019, p 218 (220); Specht, “Recht und Technik” (fn 12), p 259 are also critical with regard to the admissibility of the agreement on a smart contract in general terms and conditions. Eschenbruch/Gerstberger, “Smart Contracts” (fn 8), p 8 leave the admissibility open.

[165] Rademacher, “Neue Technologien” (fn 38), p 707 with fn 50 makes a similar argument.

[166]  The term “full enforcement”, as it is used in this paper, goes back to Rademacher, “Neue Technologien” (fn 38), p 702.

[167]  A similar debate was conducted in the 1980s concerning the question of so-called civil disobedience. Cf for a comprehensive overview with further citations: T. Schieder, “Ethisch motivierter Rechtsungehorsam”, Tübingen 2018, p 193 ff.

[168]  Cf only G. Frankenberg, “Ziviler Ungeoborsam und Rechtsstaatliche Demokratie”, JZ 1983, p 266; U. Karpen, “‘Ziviler Ungehorsam’ im demokratischen Rechtsstaat”, JZ 1983, p 249; R. Scholz, “Rechtsfrieden im Rechtsstaat”, NJW 1983, p 705. Schieder, “Rechtsungehorsam” (fn 167), p 244, 271 is right to be critical in this respect.

[169] Schieder, “Rechtsungehorsam” (fn 167), p 271 f; cf also BVerfG NJW 2001, p 2069 (2070) (on loyalty to the constitution). Rademacher, “Neue Technologien” (fn 38), p 710 makes a similar argument.

[170] Schieder, “Rechtsungehorsam” (fn 167), p 271 f. See also Lessig, Code (fn 39), p 342 ff on the subjective coercive effect of legal consequences.

[171]  As rightly stated by C. Möllers, “Die Möglichkeit der Normen”, Berlin 2018, p 145.

[172]  On the respective norms as opportunities of the legal system to waive punishment of legal infringements for reasons of expediency see only K.-H. Groß, in: W. Joecks/K. Miebach (eds), “Münchener Kommentar zum Strafgesetzbuch”, vol 2, 3rd ed, Munich 2016, s 60 para 4; W. Mitsch, in: W. Mitsch (ed), “Karlsruher Kommentar zum Gesetz über Ordnungswidrigkeiten”, 5th ed, Munich 2018, s 47 paras 1 ff; S. Peters, in: H. Schneider (ed), “Münchener Kommentar zur Strafprozessordnung”, vol 2, 1st ed, Munich 2016, s 153 para 2, all with further citations.

[173]  See only Kern (fn 142), before s 128 paras 161 ff.

[174]  See on the so-called rational apathy above fn 136.

[175]  See above C. II.

[176]  Formerly s 80 StGB. Juris query from August 2019, see also C. D. Classen, in: W. Joecks/K. Miebach (eds), “Münchener Kommentar zum Strafgesetzbuch”, vol 1, 3rd ed, Munich 2017, s 80 para 3.

[177]  Rademacher, “Neue Technologien” (fn 38), p 710.

[178]  See above C. II. 4.

[179]  BVerfG NJW 2019, p 827 (para 100): “It also follows that measures may not be implemented on a comprehensive basis”.

[180]  See BVerfG NJW 2019, p 827 (para 99), where the GCC stated that the legislature has a discretion when specifying important administrative offences. Härtel, “Digitalisierung” (fn 149), p 54 f has a stricter approach to this.

[181]  Rademacher, “Neue Technologien” (fn 38), p 710 makes a similar argument concerning the traffic lights.

[182]  See above C. II.

[183]  This results from the interaction of the fundamental guarantee of freedom in the Basic Law (see above C. II. 1.) and the prohibition of groundless surveillance (see above C. II. 4.).

[184]  See above C. II. 2.

[185]  See in detail K. Purnhagen/L. Reisch, “‘Nudging Germany’? Herausforderungen für eine verhaltensbasierte Regulierung in Deutschland”, ZEuP 2016, p 629; R. Thaler/C. Sunstein, Nudge, New Haven/London: Yale University Press 2008; J. Wolff, “Eine Annäherung an das Nudge-Konzept nach Richard H. Thaler und Cass R. Sunstein aus rechtswissenschaftlicher Sicht”, RW 2015, p 194. G. Kirchhof, “Nudging – zu den rechtlichen Grenzen informalen Verwaltens”, ZRP 2015, p 136, on the other hand, is rather critical of this concept.

 

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