Breaking Barriers to e-Government: Legal Foundations

Administrative law

In most European states, public administrations are governed by a specific regulation that is quite different from that which rules the relationships between individuals: Administrative Law, characterised by the attribution of significant powers to the public bodies and the recognition of relevant formal guarantees for the citizens. As a consequence, the existence of those rules may become an obstacle to the consolidation of public electronic services if harder requirements are fixed than those demanded by technology: instead of confidence among the citizens a new difficulty for the effective implementation of eGovernment would be added. On the other hand, if the legal adaptations are limited to the general regulation of private individuals and don't affect Administrative Law, the lack of juridical security for the use of ICT in the administrative activity can become a huge barrier to its modernisation.

Last Updated: 15 June 07

Authentication and Identification

Many transactions between government and citizens/businesses are concluded with a signature. When services are lifted to the electronic world, the need emerges for an electronic means to ensure: 1) the authenticity of each party within the electronic communication; 2) the integrity of the contents of the communication; 3) the indisputableness of the electronic communication. Divergent national rules with respect to the legal recognition of electronic signatures and the accreditation of certification-service providers to provide these signatures may create a significant barrier to the use of electronic communications and electronic commerce and government. In this respect, the primary aim of Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 to create a 'harmonized and appropriate legal framework for the use of electronic signatures within the Community and to establish a set of criteria which form the basis for legal recognition of electronic signatures.' However, it is at least necessary to further clarify the open norms laid down in the e-signatures directive; to review the possible need to make the directive more technology neutral; and to examine how theory and practice can be better tuned and whether the law can create solutions for the economic and technological barriers, relating to the fact that in the current situation the costs do not outweigh the benefits of the digital signature.

Last Updated: 15 June 07

Intellectual Property Rights (IPR)

A lot of electronic services provided by government relate to the dissemination of information. Government can electronically disseminate information to its citizens, but government can also require citizens to provide information in an electronic manner. With regard to this information, intellectual property rights form a legal barrier to the dissemination of this information. Not only copyrights and the protection of databases, but also trade marks and software patents can be, or can become, barriers to certain services that government wants to lift to the electronic world. In this respect, mention should also be made of the intellectual property rights that can be vested in the means of communication, being the infrastructure or the software used by government to deliver electronic services.

Last Updated: 15 June 07

Liability

All kinds of scenarios can be sketched that lead to questions of liability. For example: 1) due to a technical problem an application for a certain license reaches government too late. Therefore the license is refused, while otherwise it would have been granted; 2) the objection against a building permit does not reach government in time and due to this fact your neighbours are now allowed to build a hideous garage that will certainly lower the price of your own home; 3) a technical malfunctioning leads to a lot of lost votes in the election for a new mayor. The only reason your political opponent is in chair now instead of you, is because of this malfunctioning.

Not only the (dis)ability to deliver information or services can lead to questions of liability; the content of the information also bears a great liability risk. In this respect, the breach of intellectual property rights can be mentioned as an example, but also the right to privacy, defamation, negligent misrepresentation, breach of confidentiality requirements, and the risk of damage related to the fact that businesses or civilians rely on government information that later turns out to be incorrect from the start or compromised during the transmission.

Last Updated: 15 June 07

Privacy and data protection

The protection of personal data has mainly been harmonised at the European level by two Directives (95/46 and 2002/58) implemented by the Member States. This legislation brings some constraints regarding the development of eGovernment. Access, use or any other processing of personal data are indeed limited to specified purposes and can be processed further only in a way compatible with those purposes. Thereby, the Directive provides that the Member States shall determine the conditions under which a national identification number or any other identifier of general application may be processed. These can be issues for eGovernment which would probably aim at developing cross-border transfer of such personal data.

Last Updated: 20 June 07

Public administration transparency

The legislation regarding public administration transparency (Freedom of Information Acts) plays a key role in the development of eGovernment services, especially regarding the obligations of "active transparency", commanding that information is made publicly available by public authorities. Most Freedom of Information Acts are adopted at a national (or even regional) level, which brings severe divergences between the Member States. Problematic issues in this regard are, for instance, the differences concerning the exceptions existing in those regulations, allowing public authorities to refuse access to the public documents (e.g. in the case of conflict with data protection rules or national secrecy). The way such exceptions should be interpreted still needs to be clarified at the European level. The only European harmonisation – justified by the principle of subsidiarity – deals with environmental public documents and transparency of public procurement. But it should be determined whether the implementation of those rules does preserve eGovernment of additional legal barriers.

Last Updated: 20 June 07

Re-use of Public Sector Information

Public sector information (PSI) relates to a lot of different categories of information, such as economic, environmental, social, legal, scientific, cultural and political information which have an enormous economic value. The re-use of this information has been tackled at the European level in the recent Directive 2003/98/EC which, however, does not impose the re-use of PSI. It is up to the Member States to decide to allow the re-use or not. Thereby, the Directive refers to the access rules of the Member States regarding the requirements for the processing of requests for re-use, but no common legal framework exists in this realm in Europe. The Directive also does not clearly fix the issue of charging for delivering PSI for re-use. One would therefore easily imagine the headache for citizens and businesses in Europe to obtain PSI in different Member States for re-using it.

Last Updated: 20 June 07

The Relationships between Public Administrations, Citizens, and other ICT actors

One of the main conditions for the success of any initiative related to eGovernment is the guarantee of effective communication between all the parties concerned. However, from a legal point of view, the consolidation of electronic public services requires ensuring superiority of general interest over the interests of citizens and ICT companies. From this perspective, one of the public bodies' priorities should be legally ensuring the participation of users and company associations in the preparation process of the regulations on the use of technology by public administrations since, otherwise, there is a serious risk of developing them without taking into account the opinions of the users and the professionals who must design the software.

Last Updated: 20 June 07

Inventory : Legal Foundations

Administrative law

Authentication and Identification

Intellectual Property Rights (IPR)

Liability

Privacy and data protection

Public administration transparency

Re-use of Public Sector Information

The Relationships between Public Administrations, Citizens, and other ICT actors