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Take a look at our it & technology law team's articles, publications and news:
EU: The end of a dry spell – NIS 2 published
After several delays, the revision of the NIS Directive was published in the Official Journal of the European Union on 27 December 2022 in the form of Directive (EU) 2022/2555 ("NIS 2").
23 December 2022
C.Haid A.Reumann G.Leissler V.Wolfbauer F.Schneider T.Veronesi M.Neagu
to the point: technology & digitalisation l December 2022
The Digital Services Act: A tight timeline for compliance?
The Digital Services Act ("DSA")1 was published in the Official Journal of the European Union on 27 October 2022.2 This means that the Act, targeting numerous online services, will enter into force only 20 days later, on 16 November 2022.
Verbandsklagen unter der DSGVO: Noch nicht, aber bald
Eine EuGH-Entscheidung in einem deutschen Fall hat wenig Auswirkungen auf Österreich. 2023 aber ist mit einer Aufwertung des kollektiven Rechtsschutzes beim Datenschutz zu rechnen
New warranty rules: old wine in new bottles?
Two new directives are trying to shape Europe's warranty rules. Member States must apply the Digital Content Directive ("DCD") and the Sale of Goods Directive ("SGD") from 1 January 2022. Austria and several others already implemented the DCD and the SGD in 2021.
The EU Clinical Trial Regulation: big data and … human rights
The new EU Clinical Trial Regulation ("Regulation No 536/2014" or "CTR") was published in May 2014 as Regulation (EU) No 536/2014 of the European Parliament and of the Council of 16 April 2014 on clinical trials on medicinal products for human use. It repeals Directive 2001/20/EC and is applicable to a certain extent as of the end of January 2022.
Don't be gentle it's a rental – or isn't it? Correctly classifying an IT service in a contract
There's no such thing as a one-stop software contract that covers all services.
The rise of the machines: The EU is getting ready to regulate AI
In April 2021, the European Commission (EC) released its long-awaited proposal for an Artificial Intelligence Act.1 But what is artificial intelligence?
Does the Digital Services Directive stipulate a right to updates?
The new Digital Services Directive (DSD) aims to harmonise certain aspects of consumer protection law by providing consumers a mandatory warranty for digital content and digital services supplied by a vendor. First and foremost this concerns contracts on the purchase or rental of software (usually comprising licence agreements) or cloud services.
Does a new era of crypto tax transparency lie ahead?
For those who have been paying little attention to the taxation of their crypto assets, things are about to get heated.
Wie man ein 64-kg-Kunstwerk als NFT verkauft
Derzeit besteht ein regelrechter Run auf digitale Kunstwerke, deren Einmaligkeit durch „Non-Fungible Token“ (NFT) garantiert ist. Das gute alte ABGB ermöglicht es, diese Technologie für körperliche Schöpfungen zu nutzen.
Non-Fungible Tokens: Ist digitale Kunst versicherbar?
Digitale Kunstwerke in Form von Non-Fungible Tokens (NFTs) erzielen bei Auktionen Millionenpreise. Für Sammler stellt sich daher die Frage, ob sie die Werke versichern können
Dissonant Optimism: Mergers and Acquisitions in the Bulgarian Technology Industry
Blockchain and (Un)Real Estate
Blockchain technology has – so far – not lead to a transfer of the world's land registers onto this technology or to a "tokenization" of title (documents). The only significant exception in this respect is Georgia where a purchaser's title to real property can be registered by execution of a smart contract.
NFT art: The most important (legal) questions for artists, buyers in general and museums
NFT: An all-round legal view of Non-Fungible Tokens | Webinar
Did you miss our webinar, or do you want to listen to the discussed topics again? Watch the NFT webinar video recordings here!
When a museum buys an NFT: Legal challenges and considerations
The story of our NFT self-experiment does not end with the selling of the token. To the contrary, it is only the start: The buyer – in our case the Museum Francisco Carolinum in Linz – wants to use the artwork for their purposes. In general, what legal considerations should a museum keep in mind?
NFTs: What about energy and climate issues?
When we started our NFT self-experiment, it did not take long before questions relating to energy consumption came up. According to our estimates, the two transactions (i) minting of the token and (ii) authorisation of an eventual sales processing, produced a CO2-footprint of over 100 kg of CO2EQ.
Let the NFT Self-Experiment begin!
Non-fungible tokens (NFTs) aren't new, in fact they've been around for years. However, it took the auction of an NFT linked to an image by Christie's Auction House and the fall of the hammer at a spectacular USD 69 million to create worldwide attention and interest in NFTs.
Austria: Schoenherr and Museum Francisco Carolinum clarify NFT Art
Schoenherr's IP & Technology practice group has set itself the goal of providing clarity on Non-Fungible Tokens (NFTs) in the art and culture industry. In collaboration with the Museum Francisco Carolinum Linz in Upper Austria, the questions preoccupying artists, collectors and museums will be addressed at one of the world's first art exhibitions on NFTs in art. An important milestone for this has already been reached: The museum recently acquired their first NFT artwork – a work of art by conceptual artist and Schoenherr partner Guido Kucsko, that was also used in a Schoenherr team's self-experiment.
Facial recognition – Austrian regulations v European approach?
Over the last couple of years, more and more countries have deployed technologies that allow them to match digital images of a person (e.g. from a surveillance camera) against a database of pictures.
Facial recognition technology: regulations and use
In recent years there has been an increased use of technologies that match a person's digital image (eg, from a surveillance camera) to a picture database. These technologies facilitate various tasks, including:
COVID-19 – a catalyst for digital assets and crypto trading regulation?
The economic impact caused by the COVID-19 pandemic has not only significantly changed the way we work, travel and shop, but has sent a large number of investors on the search for assets that can provide a safe haven during the ongoing crisis and its macroeconomic events.
IT projects: Everything agile or still waterfall?
Agile project methods have been a topic of conversation for years. There is hardly a management consultant who does not swear by them and hardly a company that does not prescribe "agile" as a miracle cure for many homemade problems. Agility in project management has almost become mandatory, for better or worse.
2021
Quickly adapt with an e-commerce presence and digital business models
The COVID-19 crisis has forced many businesses to sell their goods and services online. Limitations on the number of people who can enter a store or restaurant have made e-commerce solutions necessary even for companies that have never used this channel before.
31 August 2020
D.Hofmarcher V.Wolfbauer T.Kulnigg C.Haid S.Khalil D.Rutecka M.Trautinger
to the point: technology & digitalisation l August 2020
Global Legal Insight: Al, Machine Learning & Big Data 2020
The Global Legal Insights series provides essential insights into the current legal issues, providing readers with expert analysis of legal, economic and policy developments through the eyes of the world's leaders.
Bulgaria: Lawyer Kristina Chakarova for the monitoring of mobile devices and the European experience
Under the state of emergency, a number of measures restricting personal freedoms were introduced. Among the controversial proposals was mobile device monitoring during the COVID pandemic.
Das COVID-19-GesG – aktuelles zu Virtuellen Versammlungen im Gesellschaftsrecht und zu elektronischen Notariatsakten
Der Nationalrat hat unter anderem im Zuge der COVID-19-Gesetzgebung mehrere gesellschaftsrechtliche Maßnahmen im Rahmen eines sog. gesellschaftsrechtlichen COVID-19-Gesetzes (COVID-19-GesG) beschlossen.
31 March 2020
czech republic poland slovenia austria
S.Bednář T.Kulnigg M.Trautinger V.Wolfbauer S.Khalil A.Lengger D.Rutecka
to the point: technology & digitalisation l March 2020
Welcome to our March edition of Schoenherr's to the point: technology & digitalisation newsletter!
Court hearing via social network – has Europe missed its chance?
Digitalisation is on everyone's lips. Parts of the judiciary – at least in some European countries – are hesitant. Austria introduced an electronic legal communication system for most Austrian courts decades ago.
The Police, Drones, and the Corona Pandemic – Reflections on Austria
The Corona pandemic is putting our world to an unexpected stress test. But despite all difficulties, in only a couple of weeks, people dramatically changed the way they work, shop, seek health care, and interact with each other.
26 February 2020
czech republic poland romania austria
T.Kulnigg M.Trautinger A.Lopatka-Sint D.Rutecka U.Rath C.Benes V.Wolfbauer
to the point: technology & digitalisation l February 2020
Welcome to our February edition of Schoenherr's to the point: technology & digitalisation newsletter!
Digital Signatures
More and more companies are using digital signatures to sign their contracts electronically. But is this permissible and are the contracts valid?
Freedom of contract (Vertragsfreiheit) is an underlying principle of Austrian contract law. A contract is defined as consenting declarations of an offer and an acceptance and, in general, neither offer nor acceptance requires a specific form under Austrian law. Moreover, oral agreements are legally binding and enforceable. Contracting parties are therefore free to choose any suitable form for a contract according to Section 883 of the Austrian civil law (Allgemein Bürgerliches Gesetzbuch, "ABGB"), including tools to sign contracts electronically. This possibility to choose is called freedom of form (Formfreiheit), which is part of the mentioned freedom of contract ("Vertragsfreiheit").
The flying Fiaker: A case study
The Fiaker, a Viennese term for a horse-drawn four-wheeled carriage for hire (a "hackney coach"), has been trundling through the streets of Vienna for centuries. The first Fiaker was licensed in 1693. Back then, it was the first means of urban transportation to carry several passengers at once. Today, it is a tourist attraction and traffic obstruction. Nonetheless, the Fiaker survived and adapted. Just recently, the first electronic Fiaker hit the road in Vienna.1
Czech data protection authority: Can the employer enter into its employee's e-mailbox?
In January 2020, the Czech data protection authority (ÚOOÚ) published on its website an anonymised inspection protocol, which contains valuable information on how the authority assess checking and reading employee emails after the GDPR came into effect.
In the case in question, the authority received a complaint which reads that "… after an employee leaves, his e-mailbox, which contains both working and private data, is handed over to such employee’s supervisor, who has a full access to the e-mailbox, administers it and uses it…". The authority initiated an investigation in which it expressed (and protocoled) its opinions on accessing employee mailboxes.
Romanian fintech start-ups combine powers and create the first Romanian fintech association
For the last couple of years, the fintech industry has become of great interest in the Romanian entrepreneurial scene. Numerous Romanian start-ups or long-existing financial and IT companies have switched focus on what fintech means and on what it can bring to the table.
31 January 2020
D.Hofmarcher A.Pabst T.Kulnigg V.Wolfbauer M.Trautinger S.Bednář S.Khalil
to the point: technology & digitalisation l January 2020
Welcome to our third edition of Schoenherr's to the point: technology & digitalisation newsletter!
How to manage complex IT projects
Gone are the days when purchasing new software was mainly the job of procurement departments and driven by economic considerations. Nowadays, IT projects are incredibly complex and require the seamless interaction of many different stakeholders.
Austria: Lawyer vs. Robot: Is there a future without human lawyers?
On 10 December, experts from both legal practice and academia spent the evening at the "Lawyer vs. Robot: A lost cause?" event which is part of the event series TECHNOLOGYLEGAL, a collaboration between Professor Christian Piska from the University of Vienna, and Christian Schmelz, partner at Schoenherr Vienna.
European Commission's Expert Group publishes report on Regulatory Obstacles to Financial Innovation
Just in time for Christmas, the European Commission's Expert Group published its eagerly awaited final report on regulatory obstacles to financial innovation on 13 December 2019 (the "Report").
New Rules for Digital Content & Sale of Goods
The Sale of Goods Directive will apply to sales contracts between a consumer and a seller for goods, including goods with a digital element (e.g. smart TVs, smart fridges or smart watches) regardless whether concluded physically in shops or online.
Update on Artificial Intelligence and Competition Law
On 6 November 2019, the German Cartel Office and the French Competition Authority published a joint report on the competition risks resulting from the use of algorithms (the "Report"). The Report tackles four main issues:
Second Tech Night @ Schoenherr: Digital adaptability as a prerequisite for success
Am 21. November fand die zweite "Tech Night @ Schönherr" statt. Die von der Schönherr Technology & Digitalisation Gruppe ins Leben gerufene Eventreihe befasst sich mit rechtlichen Rahmenbedingungen und Herausforderungen im Kontext aktueller digitaler und technologischer Entwicklungen.
Facebook's Libra: The new generation of cryptocurrencies?
"When I think about all the different ways that people interact privately, I think payments is one of the areas where we have an opportunity to make it a lot easier," Zuckerberg said on 30 April 2019 at Facebook's F8 annual software developer conference in San Jose, California.
Increased activity of the Polish Data Protection Authority
As of November 2019, the Polish Data Protection Authority (Urząd Ochrony Danych Osobowych; "UODO") has fined three Polish companies and one local government institution for non-compliance with the GDPR.
Digital foundation of an Austrian limited liability company
The Electronic Notarial Form Foundation Act (Elektronische Notariatsform-Gründungsgesetz) ("ENG") came into force on 1 January 2019 and enables going forward the digital foundation of an Austrian limited liability company ("GmbH") by way of an electronic notarial deed. The Austrian notaries were entrusted with the implementation of the digital foundation procedure. Since autumn 2019, the first notaries in Austria have been offering the digital foundation process of a GmbH. Schoenherr attorneys at law, was the first person in Austria to accompany a digital foundation process.
Before we describe the digital foundation in practice, we briefly describe the notarial process of founding a GmbH in general: (i) execution of the deed of incorporation / articles of association as Austrian notarial deed (Notariatsakt), which essentially requires that the notary reads out the agreement and the parties sign the agreement in front of the notary, (ii) appointment of the first managing director(s) by way of a shareholders' resolution (by way of a notarial protocol, circular resolution with certified signatures or – as this is done in practice – as part of the notarial deed described under (i)), (iii) execution of the specimen signatures of the managing director(s) with their signatures being certified by a notary public (this could also be done by a foreign notary or an Austrian embassy/consulate) and (iv) execution of the commercial register filing again with signatures being certified by a notary public or Austrian embassy/consulate.
The ENG now attempts to fully digitalize such process. The process in practice can be described as follows:
Zivile Drohnen - ist Österreich auf die EU-Vollharmonisierung vorbereitet
Drohnen werden zunehmend häufig und vielseitig im Luftraum operiert. Der Unionsgesetzgeber hat auf den EU-Harmonisierungsbedarf für zivile unbemannte Luftfahrzeuge mit der VO (EU) 2018/1139 reagiert. In Zusammenschau mit deren tertiärrechtlichen Ausführungen muss das österr Luftfahrtrecht ab 1. 7. 2020 mit den unionsrechtlichen Anforderungen für die drei neuen uLFZ-Kategorien übereinstimmen. Eine umfassende Luftfahrtgesetz-Nov scheint unausweichlich.
Der vollständige Artikel ist hier zu finden.
Checkliste - Das künftige EU-Drohnenrecht
Mit VO (EU) 2018/1139 (Basic Regulation, BR) übernimmt der Unionsgesetzgeber die Legislativkompetenz für sämtliche unbemannte Luftfahrzeuge (uLFZ). Nach Art 55 ff BR werden die Sonderbestimmungen für uLFZ in DurchführungsVO (vgl) und in delegierten VO (vgl DR) von der EK näher ausgeführt.
CJEU: "opt-out" language does not create valid cookie consent - Austria
Case: C‑673/17; Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV vs Planet49 GmbH
FinTech 2019 in Austria
Financial technologies, or FinTechs, are rapidly changing the finance/banking sectors, and sometimes even shift whole markets online, and make it possible to deal, invest or lend money without ever needing to deal with a traditional bank.
Serbia catches up with the GDPR
1. New Data Protection Law adopted and applicable
After a public hearing that lasted more than a year, the National Assembly of the Republic of Serbia adopted the new Data Protection Law (the "Law") on 9 November 2018. The Law is applicable as of 21 August 2019. The provisions of the Law itself have been modelled on, and largely comply with the provisions of the GDPR, as part of the wider process of harmonising the national law of Serbia with EU law, which was one of the main reasons for the adoption of the new Law. Besides many novelties, the new Law elaborates on certain procedures, rights, obligations and competences.
Some of the most important novelties follow.
EU-Finanz-Anpassungsgesetz 2019 │ New Challenges ahead for the virtual currency business
On 11 July 2019 the Austrian parliament adopted the EU-Finanz-Anpassungsgesetz 2019 ("EU-FinAnpG 2019") which implements the 5th EU Anti-Money Laundering Directive ("5th AML Directive") into Austrian law and introduces a number of amendments to Austrian laws relevant to the financial market.
In order to implement the 5th AML Directive, amendments to the Austrian Financial Markets–Money Laundering Act ("FM-GwG"), the Beneficial Owner Register Act (WiEReG) and the Act on Gaming (Glückspielgesetz), are necessary. These amendments include changes which will have a significant impact on business with virtual currencies.
Austria: Schoenherr advises SynerGIS on the sale of its GIS and FM software development business to AED-SICAD
Schoenherr has advised the shareholders of the Synergis Informationssysteme GmbH ("SynerGIS") on the sale of its GIS (geographic information systems) and FM (facility management) software development business to AED-SICAD GmbH ("AED-SICAD").
Schrems II.: the doom of Privacy Shield and Standard Contractual Clauses?
Read the Czech version below.
There are two fundamental legal mechanisms stipulated in the EU law for the transfer of personal data outside European Economic Area (EEA): Standard Contractual Clauses (SCCs) and Privacy Shield. Both of them are widely used in practice because they allow corporations within the EEA to legitimise the transfer of personal data beyond the borders of EEA. However, each of them behaves differently. SCCs are essentially contracts between (at least) two parties and a Privacy Shield on the other hand is an agreement between the United States Department of Commerce and the European Union, which regulates the transatlantic data transfers.
The Court of Justice of the European Union (CJEU) is prepared to hear a case challenging the validity of both of the above-mentioned transfer instruments. The case stems from a dispute between Max Schrems and Facebook dating back to 2013. Max Schrems is an Austrian lawyer and determined advocate for data protection. His focuses on the flow of (EU) personal data from US corporations to U.S. intelligence agencies. In 2017, Schrems set up a non-profit organisation NYOB1 with the aim to help citizens defend themselves against allegedly “omnipresent” technological corporations.
Praxishandbuch Cloud Computing
Der Trend Cloud Computing ist längst in der Praxis angekommen und der Markt wächst.
Glücksspielgesetz-Novelle 2019: Bedarf zur Regulierung von Lootboxen?
"Lootboxen" und Glücksspiel - eine heftig diskutierte Kombination. Mit dem steigenden Verbreitungsgrad von Lootboxen gerät die Frage vermehrt in den Fokus, ob Lootboxen Gemeinsamkeiten mit dem Glücksspiel aufweisen und damit reguliert gehören.
A glimpse into the future of AI regulation
On 8 April 2019, the High-Level Expert Group on Artificial Intelligence – a supportive body to the European Commission – launched their "Ethics Guidelines for Trustworthy AI". Based on four questions, the following text deals with the context and content of this guideline, deducing the possible next steps for AI practitioners towards the achievement of Trustworthy AI.
Austria: What does "limited space" mean under the Act on Distance Contracts and Off-Premises Contracts?
Directive 2011/83/EU of 25 October 2011 on consumer rights (the "Directive") and the Fern- und Auswärtsgeschäfte-Gesetz (the "FAGG") impose many information obligations on traders before the consumer is bound by a distance or off-premises contract, or any corresponding offer.
Taxi drone EHang 216 takes off in Austria
As reported by ORF and CNBC, the taxi drone EHang 216 conducted its first demonstration flight in Vienna on 4 April 2019. EHang 216 is an autonomous aerial vehicle that can seat two passengers, reach a speed of up to 160 km/h and has a range of around 70 to 80 kilometres. The vehicle is electrically operated, and efforts are being taken to ensure it is barely audible at a distance of 15 to 20 metres. Thus, the taxi drone sets a remarkable benchmark in terms of air pollution control and aircraft noise.
The 5G network – From technical requirements to legal challenges
1. The 5G network for Europe
In September 2016, the European Commission invited1 the Member States to develop national 5G strategies as part of their broadband plans. The Austrian Federal Government has set itself the goal of implementing the 5G strategy in three ambitious phases:
Phase 1: By mid-2018, preliminary commercial 5G tests were to be implemented.
Phase 2: By the end of 2020, the Federal Government set its interim goal of achieving almost nationwide availability of ultrafast broadband connections.
Phase 3: By the end of 2023, 5G services will be available on the main traffic connections, and by the end of 2025, the goal of almost nationwide availability of 5G will be achieved.
At the beginning of March 2019, the competent supervisory authority (RTR) conducted the procurement procedure for the 5G "pioneer band" auction. The three major Austrian mobile operators (A1, T-Mobile and Drei) acquired licences for the frequencies in all 12 regions put to tender. Based on these frequencies, one of the companies has already commissioned the first 5G mobile stations in some selected Austrian regions.
Austrian public enterprises join forces to accelerate 5G expansion
On 26 March 2019, the Austrian mobile operator T-Mobile commissioned the first 25 5G mobile stations in 17 selected Austrian municipalities, predominantly in rural areas. According to the Chancellor of Austria, the start of 5G marks a milestone in the country's economic competitiveness and technological progress.
However, further steps need to be taken to achieve almost nationwide availability of 5G by the end of 2023 as laid down in the Federal Government's 5G strategy paper.
Austrian DPA case law since 25 May 2018 (excerpt)
Austria paves the legal way for (partly) autonomous vehicles
Imagine your car would drive you instead of you driving your car. This marvel has become partly a reality, as a law entered into force on 11 March 2019 allowing autonomous driving on Austrian highways. In addition, an amendment to the regulation for autonomous driving (Automatisiertes Fahren Verordnung – AutomatFahrV) by the Ministry of Traffic, Innovation and Technology broadly permits autonomous parking of vehicles.
Combining Blockchain and AI to make Smart Contracts Smarter
Blockchain and Artificial Intelligence (AI) are the new giants in technology and two of the hottest topics at the moment. The two technologies are typically considered for separate applications but there is a link: data.
AI allows processing of big data, whereas Blockchain offers security, immutability and decentralised data storage. It makes sense to combine the two technologies to make "Smart Contracts smarter" and to potentially also be a driver of the fourth industrial revolution: Data owners might be able to control their data again by choosing which AI provider to share their data with. Data marketplaces might also be possible, boosting AI applications when combined with Blockchain technology.
What is Blockchain?
Blockchain1 or Distributed Ledger Technology has become a trending topic especially in the light of cryptocurrencies, smart contracts, ICOs and other areas in the context of digitisation, which are based on this technology. This technology and the (alleged) possibility to digitalise any kind of assets or create bullet-proof sets of data has the potential to revolutionise certain industries. It is therefore essential to understand blockchain technology in order not to fall behind. The following is a brief introduction to the technology, its variants, advantages and possible applications.
Romania: Cybersecurity - call for action for major companies in critical sectors
The first piece of EU-wide legislation on cybersecurity is expected to be transposed into Romanian law anytime now, bringing into play enhanced system security obligations for major companies in certain sectors, as well as fines of up to 5 % of non-compliant companies' turnover.
Austria: Schoenherr advises crowdinvesting company CONDA on first-ever digitalisation of shares via blockchain in Austria
Schoenherr and CONDA AG ("CONDA") have succeeded in digitalising the shares of the joint stock company and enabled registered shares to be managed via blockchain technology.
Austria: ECJ latest Facebook ruling makes waves: Impact under the GDPR?
In its decision C-210/16 of 5 June 2018, the European Court of Justice (ECJ) ruled on a dispute between a German academic institution and a German data protection authority. The institution operated a fan page on Facebook and collected user data via cookies, which were placed by means of a function called "Facebook Insights".
Österreich: Selbstlernende Systeme: Wem gehört’s – wer hat Schuld?
Die rasante technologische Entwicklung bis hin zu den sich selbst weiterentwickelnden Systemen künstlicher Intelligenz verlangt nach neuen juristischen Denkansätzen.
AT/CZ: Schoenherr strengthens teams in Vienna and Prague with two new contract partner promotions
Schoenherr is announcing the promotion of Austria IP lawyer Michael Woller and Czech corporate/M&A expert Vladimír Čížek to contract partner.
