Access To Public Information:
A Key To Commercial Growth And Electronic Democracy

Conference - Stockholm
27/28 June 1996


Flags of 15 EU Member States

Personal Summary of the Conference

Herbert Burkert

Chairman of the LAB *

Proceedings ]
The conference has led us through three stages. With stages, I am not referring to time sequences, rather I am referring to mental stages.

First Step

In the first stage we have become exposed to complexity or to put it less elegantly we were confused.We have dealt with access regulations, privacy regulations, copyright, competition law, constitutional law, community law, telecommunications law. We have dealt with general information and sector specific areas. We have dealt with national approaches within the European Union, national approaches outside the European Union and institutional approaches within the Union. Local and regional approaches have been addressed. We have dealt with government policies, community policies and business strategies. We have addressed projects, regulations and mentalities or, more elegantly again, information cultures.We have realised that we are faced with some sort of a net: If you pick up one knot you automatically pick up another knot and then yet another knot. Providing access for example requires guarding data protection. Data protection requires considering the question of re-use. Re-use demands thinking about copyright. Thinking about copyright leads us to competition law. Competition law poses the question to what extent is there some sort of natural prerogative of what is perceived as the laws of the market. Are these laws natural laws against which we can set legal rules only at the risk of economic disaster just as it would be foolish to make legal rules against the laws of physics, or are markets in need of constant monitoring and – if this is so – to what extent then should we set intentionally normative restrictions on market mechanisms, e.g. by providing a universal service of access to information content?

Second Step

The next step then has been perceiving structure. A frame so to speak, and nails to fix the net to the frame has been provided. So now what is the structure, what is the framework? The framework is, I believe, indeed the Information Society. The Information Society, here, is not a sociological description but it is something we build at, we want to achieve as a program of today. How does this translate to the subjects of our conference?

In the information society we take each other mutually serious as communication partners that seek to deal with each other in a meaningful way. We are not just working as a sender and receiver that happen to share or do not share a common code while emitting signals.

From this follows that on the political level we need an environment that provides the opportunity of informed dissent. Information Society rules for information handling have to be made explicit, comprehensive and meeting the need for this type of exchange. Some of these rules refer to transparency, like the data subject's access to his or her data. Others refer to confidentiality as for example national security rules. Some refer to data quality, as many of the fair information practices rules.

It is and it will be increasingly perceived as a historical detail rather than a functional necessity to refer to some of these rules as privacy rules and to others as access to information rules. It is the comprehensiveness of these rules, the way in which they accept and put into reality the information conscious individual in an information conscious society that is decisive not the legislative labels. This comprehensiveness however still has to be fully achieved.

From this follows that transparency is to be provided effectively on an equal basis, without any additional reasons to be shown but weighed only against those confidentiality rules which have evolved as necessary in a democratic society. From that follows that as long as an activity is by political decision defined as public sector activity and that decision is in conformity with the obligations of the Treaty, this information is to be made accessible at the costs of distribution, all other costs being implicitly covered by the corresponding political decision of taxation.

From that follows that those social institutions having received the privileges of being public sector institutions are not to be led into temptation to see the best of both worlds. This does not mean that the public sector is fixed to a level of information provision once and for all. Wherever it is politically defined that an information service has to have a certain service level this level has to be maintained or reached. And again this being a conscious communal political decision it carries with it that no additional costs are to be charged for this.

Within this logic there is no place for copyright for the public sector. Copyright is a time restricted monopoly to encourage creation and or investment. Since the investment is built on a political decision in these cases it does not need market related incitement. This does not exclude, on the contrary we shall need instruments that ensure us about the origin and the integrity of the information we are dealing with. But the economic monopoly of copyright is not an adequate instrument to achieve this goal.

In the information society we are conscious of our information and communication tools. In the context of the issues we have been dealing with here this means that we have to finally become aware of the habits of information handling formed by the tools of the past and the structural potentials of information handling in our time. This again means that we should be open to the opportunities of technical solutions of many problems that we so far have regarded as legal problems.

If for example an electronic information resource is there and appropriate technical safe guards are being taken, then this resource only needs to be linked to the net and a variety of search and structural tools available out there will help to ensure their qualitative accessibility.

We should also trust in our own capability to learn how to handle such tools adequately. Such an optimistic approach might take out some of the fears of the misuse of electronic democracy.

We had totalitarian regimes with newspapers and the radio and the cinema. We saw totalitarian attempts disappear with television. So let us not be afraid of the Net. Nowhere else does it become apparent that the technical potential is there and if we go amiss this will not be a technical problem.

In the Information Society we take a societal approach meaning that economic activities are integrated social activities and should not be set apart. As integrated social activities they will respect our primary assumptions on mutual communicative respect. As integrated activities they deserve all our best efforts to give them the breathing space they need to develop and flourish.

Taking a societal approach also means that we should make an effort to move together and while the fastest may not necessarily have to move at the speed of the slowest we should make sure that we do not become stretched out too much on our way and that we eventually all arrive where we set out for. There are plenty of instruments to achieve this and those which provide the widest variety of choice should receive preferential treatment.

The Third Step

The last step then is being prepared for action.

There are at least four manners in which we learn to change and to adopt. All have been presented to us at this conference.

Learning by experience: This is the hardest way and we have been presented with examples of small and medium size enterprises that have been thwarted in their efforts to be innovative in the Information Society. We learn by example: There are a few lessons to learn from the US American example. But the example everybody will be looking at here is going to be the example set by the Community bodies themselves. We learn by force: Yes, I do believe we need a directive. A directive may not be exactly equally effective in each country, but its symbolic nature should not be underestimated. It is a clear commitment. And I believe there is a due expectation of every European citizen to have equal informational opportunities as well as protection in this Community. What did apply for the directive on data protection would also apply for an access directive. Hopefully it would take less time.

A directive, however, it should be as there once were directives: That is - a directive with clearly defined goals along the Council of Europe's Recommendation 81(19) leaving the means to achieve these goals to the Members States. As to the competence I suggest the informational considerations of the data protection directive lead us the way; they have shown us that the concern for the European Citizen and the functioning of a European market are not mutually exclusive but supplement each other.

And finally, we learn by self-interest and joy: I feel we have seen that there are plenty of opportunities for invitations and for economic and political creativity: Let us make use of them.

All these learning processes are complimentary and should be used in parallel. In the other part of the real world there are hopes to be fulfilled and these hopes are existential. And if these hopes are disappointed, I am afraid, then we no longer need to worry about electronic democracy - there would not be much left to turn electronic.

Where From Here?

Now I have seen some of you turning paler and paler through my presentation and an invisible question mark is forming about our heads: Is this a summing up of a conference or simply an individual misusing the opportunity to put forward his very personal view?

I believe it is a summing up to the extent as at each point in this presentation where you disagreed with my view or where you felt confirmed you were made felt the neuralgic points that have been addressed at this conference: Those are the points where political choices are to be made, where you should watch out and seek to influence the following political debate. To prepare you for this, this is what the conference has been about and the Green Paper will be about. Do speak up.

***

Let me conclude with a very personal note. This conference would not have been possible and would not have found its way through the community institutions without the dedication of a civil servant and his staff who in the best of civil service tradition have been working very much in the background, but one name at least, in spite of our concern for privacy, should be put on the record: Thank you, George Papapavlou.

***

I want to thank the organisers, Pierre Bischoff, particular, the interpreters. I want to thank the speakers. And the final world goes to the audience: With the sheer onslaught of contents you were held captive and you may feel that you had had only few chances to react. Against the background of our theme this may seem somewhat ironic irony. Perhaps we have not been sufficiently aware that talking about access and its implications in Scandinavia is like bringing owls to Athens.

On the other hand this carries a warning about the rhetoric of the Information Society. The first step to the Information Society is an awareness that those you are talking to have something to say themselves. Thank you very much.


* Chairman, Legal Advisory Board; Senior Researcher, GMD Research Center for the Information Technology; St.Augustin, Germany; Lecturer, University of St.Gallen, Switzerland. The author expresses his personal views.

Proceedings ]

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