International Journal of Communications Law & Policy

THE 'ANONYMISATION' OF THE TRANSACTION AND ITS IMPACT ON LEGAL PROBLEMS - A THEORY AS TO WHY THE USE OF ICT ENGENDERS LEGAL PROBLEMS
By Joachim Benno

Download the Paper in PDF Format: IJCLP Web-Doc 3-2-1999

Abstract

The need for adaptability of legal consequences forms a consistent theme in the changes attending the dynamic development and use of technology. Most traditional areas of the law are affected, often by common and at the same time overarching problems which can disturb basic structures of the legal system. Critics are often heard to say that the legislator is not keeping up with developments and that current law stands in the way of efficient utilisation of the potentialities of technology. Others point to the need for reflection and to the dangers of a development in which the legislator under pressure takes precipitated action on the basis of inadequate supportive documentation. There are also those who maintain that the legislator ought as far as possible to remain passive and instead allow the players in the market to solve, through self-regulation, the problems arising.

The emergence of the information society confronts the legislator with challenges of apparently unprecedented extent and complexity. At the centre of it all we have the Information and Communication Technology (ICT), not only as the motive force of development and of the possibilities which the information society affords, but also as a factor generating the legal problems which have to be dealt with. In most cases this is a matter, not of new, unregulated legal phenomena but of existing ones where current law is becoming incapable of serving its intended purpose when ICT is used.

The purpose of this article is to discuss why the use of ICT engenders legal problems. It demonstrates the possibility of pointing to common factors in this respect and of describing these factors as "anonymising" the transaction, or in other words making it more difficult both for the parties themselves and for legislators and judicial practice to understand and deal with the transaction and its environment. Concrete and more general examples are given, and ways are discussed in which the phenomenon of "anonymisation" can be coped with.