Our legal newcomers publish in the ELSA magazine!

Julia Helminger and Lisa-Martina Köberl have published two interesting, relevant and highly current articles in the eighth issue of the ELSA Austria Magazine, published by the Verlag Österreich. The focus of this issue of the ELSA Austria Law Review 2023 is on “The Rule of Law in Austria and the European Union.”

The rule of law & internet governance: the role of decentralized networks for internet regulation

by Helminger Julia

The socio-political influence of social networks has become indispensable. This makes it all the more questionable to leave the regulation of public discourse to the private sector – as was recently made clear by the takeover of Twitter (now ‘X’). In general, what applies offline also applies online.

However, given the significance of social networks, the question arises as to what extent the basic principles of the ‘rule of law’ – such as the separation of powers or the protection of fundamental rights – can also apply to the private sphere. The legislator is faced with the – not unfamiliar – dilemma between safeguarding private autonomy on the one hand and its obligations to guarantee fundamental rights on the other.

The role of decentralized platforms (such as Mastodon) is examined in more detail in the article. Special reference is also made to the requirements of the Digital Services Act (DSA). The EU regulation, which came into effect on November 16th, 2022 (the effective date for the provisions is February 17th, 2024), targets large online platforms (SGOPs, also known as VLOPs) and includes, among other things, provisions for dealing with disinformation as well as transparency and accountability obligations. The effects of these obligations already seem to be becoming apparent: According to recent announcements, there is even consideration of exempting the platform ‘X’ from the EU legal regime. (APA, October 19th, 2023)

The article is intended to provide an overview of possible – technical or regulatory – solutions for ensuring the basic principles of the rule of law in the digital space.

Julia Helminger’s full article can be read online here.

Constitutional Court judges and their side jobs – biased and incompatible instead of independent and objective?

by Köberl Lisa-Martina

Judges at the Constitutional Court have traditionally held their office as a part-time occupation. An arrangement that regularly shows its negative sides: When the independent guardians of our constitution legally represent political parties as a side job or review laws drafted by themselves as ministers, the constitutional state should listen up. This article by Lisa-Martina Köberl takes a closer look at why Austria’s highest judicial office is designed as a part-time job and what concerns this raises.

In addition to performing their duties as judges, members of the Constitutional Court engage in their primary activities as lawyers, members of the supervisory board of a company or as professors at a university. These additional activities often result in bias, which is intended to be prevented by appropriate legal regulations, but this must still be recognized and explained by the person concerned. This self-perception is quite problematic, as several cases in the past have already shown, thus calling into question the independence of the Constitutional Court.

In order to prevent this problem in the future, the office of a Constitutional Court judge should be designed as a full-time position and adapted to the offices of the Supreme Administrative Court and Supreme Court of Justice judges.

You can read Lisa-Martina Köberl’s article online here.

 

31. October 2023

 

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