Articles

• Kilian, Wolfgang, Personal Data: The Impact of Emerging Trends in the Information Society, How the marketability of personal data should affect the concept of data protection law, CRI 2012, 169-175
  For over forty years the development of principles and rules on the protection of personal data is an accompanying phenomenon of the modern information society. The data protection approach is rooted in the philosophical belief that each person owns qualities, attributes, characteristics, behaviors, skills, relations, which are distinct from others and on which he principally should have the right of disposal.The increase of ICT-related methods to identify, analyze, evaluate and profile individuals evokes the question, what margin of individual decisionmaking exists in relation to the use of personal data. Should the data subject be protected against demands for personal data which are raised by State authorities and big market players?This article first observers the emerging trends in the information society (I.) and their distinct global impacts (II.) before using the general principles governing the relationship between an individual an his personal data as a base for exploring new rules for the marketability of personal data (III.). This vision is rounded up by reconceptualizing data protection law with the concept of ”informational goods" (IV.) and closes with a call for the establishment of collecting societies controlling the use of marketable data in the short term and a global model of data protection law for the private sector (V.)

• Beardwood, John, Sympathy for the Devil? Outsourcing Lessons to be Learned from , Studying a text book case for how or how not to live and evaluate an IT-project, CRI 2012, 175-181
  ”Neither party deserves to win this case ... This story represents a ”perfect storm" of misguided government policy and overzealous corporate ambition. Overall, both parties are to blame and Indian’s taxpayers are left as apparent losers." With these opening lines begins the judgment in State of Indiana (the ”State") v. International Business Machines Corporation (”IBM") by the Marion Superior Court in Indiana (the ”Court") (State v. IBM, Cause No.49D10-1005-PL-021451, Marion Sup. Ct., Civil Division 10, 2012). It is fascinating case for a number of reasons. On one level, it is a textbook example of how a transformational business process outsourcing can be an extremely high risk engagement for both customer and provider. On another level, it reads like a grocery list of all of the externalities which can adversely affect the ability of a provider to be able to successfully attain the objectives of the outsourcing. On still another level, it provides useful analysis on the two critical issues of what constitutes material breach in the context of an outsourcing arrangement, and when a liquidated damages provision will be considered to be an enforceable penalty. All of these factors alone justify reviewing the case in more detail.However, perhaps the most troubling aspect of the judgment is how the Court appears to have been swayed by both the overwhelming number of challenging external factors beyond IBM’s control which plagued the Project, and the admittedly opportunistic behavior of the State, to pay significantly less deference to the contract – particularly in connection with the Court’s analysis of material breach – than was warranted. In this, the judgement flies in the face of the doctrine that an arbiter should first base their understanding of the intent of the parties on the language of the contract itself.In this article we outline the background behind the case (I.); review the list of external factors which hindered the progress on the Project (II.); briefly outlining the events occurring on termination (III.); assess the Court’s analysis as to whether IBM materially breached the outsourcing contract as claimed by the State (IV.); and conclude by providing a critical analysis of the Court’s final judgment (V.).

• CRI 2012, 181-184
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• CRI 2012, 196-197

Updates

• Lloyd, Ian, UK: Tablets, War and Design Rights, CRI 2012, 197-200

About the Authors

• About the Authors, CRI 2012, 200