Key takeaways from June Virtual Breakfast on Digital-ready lawmaking & ethics

The Legal Interoperability team of the European Commission is on the mission to raise awareness, promote and share knowledge on digital-ready policies and the support of new technologies in policy activities and build the Better Regulation for Smoother Implementation (BLSI) community around those topics. Virtual breakfasts are one of the main forums for this community to discuss and share innovative ideas.

As part of the June edition, the team explored the ethical implications of these new approaches and technologies and gathered fresh ideas. More specifically, as part of this June virtual breakfast, the following panellists participated in an open discussion: 

• Jelle Hoedemaekers, Expert at Agorija
• Mireille Hildebrandt, Head of Project at COHUBICOL, Research Professor at Vrije Universiteit Brussel, Professor at Radboud University
• Laurence Diver, Postdoctoral and senior researcher in COHUBICOL at Vrije Universiteit Brussel
• Eleftherios Chelioudakis, Co-founder of Homo Digitalis, Tech Lawyer
• Jan De Bruyne, Research Expert at CiTiP, Lecturer at the LLM programme of KU Leuven

Key takeaways/points

• Exploring the connection among law, ethics and technology: we examined the relationships between legal and ethical behaviours and their consequences for digital-ready law-making. Ethical behaviour is based on subjective principles on what is “right” or “wrong” following the governing moral code, while legal behaviour is doing what is in accordance with the law. The law captures what has been decided on a political level that we should adhere to, hence, what is legal is not necessarily ethical and vice versa. 
• Digital-ready policy entails two different notions: first, the notion of policy in the traditional legislation sense coping with the IT landscape, and second, the notion of developing legislation by using digital tools such as, law-as-code, semantics, legislation as a digital product.
• Digital-ready law is a legal text that can be easily digitalized: law should not be enforced as computer code only, because citizens should remain able to understand and contest it. However, working with a machine-readable version of the legal text would allow testing how logical it is.
• Code-as-law does not fit for all laws: it may be applied to objective rules in law such as ‘stop at the red light’. Any subjective element in law will require human interpretation. 
• Legal rules require human interpretation and intervention: human interpretation is particularly important, when we use digital artefacts in legal processes or in the application of law, because law is not perfect. The interpretation must not come from the scientists or developers of a particular technology in order to respect the separation of powers.
• The separation of powers serves the ends of the rule of law: legislators make laws, the executive power enforces laws, and the courts interpret laws. Transforming law into data can have many implications, such as putting the rule of law into question. 
• Legislators have no legitimacy to create machine-readable laws: that would circumvent two out of the three powers (namely law enforcement and interpretation).
• Law is flexible and must remain flexible: it encompasses the principle of fairness that requires a contextualized understanding of the case. This goes beyond what machines seem to be able to provide. Such flexibility also caters for judicial activism where case law has a progressive approach to law.
• Providing executable harmonised code would support businesses in their day-to-day activities as harmonised standards do, but laws need to remain flexible to cope with new situations. The characteristics of natural language allow for dealing with the unknown in the legal text, when the right level of abstraction is found.
• The technology we are using is not neutral, neither is the medium used to develop legislation because it depends on human intentionality. The nature of law is affected by the use of technology and we must commit to a certain type of law and the ethics behind it. We must be aware how these technologies can change the essence of law. 
• Ethical by design: When designing law, consider digital aspects early on within the context of an ethical framework, (i.e. with the help of multidisciplinary teams) so that all aspects are addressed.
• Follow a Human Rights-based approach: it ensures that both individual and societal well-being are taken care of. Human Rights law provides a consistent basis where ethical and technical considerations can be tackled with the help of the necessity and proportionality assessment.
• Keep citizens at the center and consider the notion of legal effect and protection of law: ensure that technology makes the citizens the legal subject. Avoid using the concept of user that narrows the legal subject to its momentary interaction with an IT system, while consider the effects the law may have on individuals and society at large (legal effect) and whom/what the law aims at protecting (legal protection) that go way beyond this interaction.
• Citizens should be empowered actors in the digital-ready law-making process. They should remain active and organise themselves under broader schemes. Digital-ready laws also need to consider citizens who do not have access to digital tools and are not digitally literate. The Guidelines for trustworthy AI are criticised for not taking the citizen into account and future legislation should ensure that the burden of proof on procedural matters does not fall on citizens.
• There should be no trade-off between ethics and innovation: ethics should not be seen as a constraint to innovation. Companies need digital-ready law or digital-ready ethical tools that they can easily integrate to their products and processes. Positive innovation is about integrating ethics to the products. 
• Respect the Proposal for a Regulation on a European approach for Artificial Intelligence: qualify innovative tools that support the legislation process (legal search, predictive analysis etc) as high-risk tools – in line with title 3 chapter 2 of the Proposal.

The recording of the webinar will soon be available on our Joinup page! 

The Legal interoperability team is looking forward to seeing you in our next virtual breakfast sessions! Subscribe to our newsletter to stay tuned, if not already done. And if you have any question, do not hesitate to contact us.