This country-specific Q&A provides an overview to technology, media and telecom laws and regulations that may occur in Romania.
This Q&A is part of the global guide to TMT. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/tmt-3rd-edition/
What is the regulatory regime for technology?
In Romania, technology is regulated under many different laws. As such, technology companies are to observe several different sets of legislation.
Activities in all subsectors are regulated by a mix of dedicated legislation (e.g. telecommunications legislation, online platforms legislation, software copyright legislation etc.) and legislation that is not specific only to them (e.g. consumer protection, manufacturer’s liability, intellectual property, competition, civil law, media legislation, etc.).
Newer technologies such as artificial intelligence, blockchain, big data, crypto currencies, social media, autonomous vehicles, the Internet of Things etc., raise issues for which existing legislation does not always provide solutions. That is not to say, however, that they are completely deregulated.
As mentioned above, where dedicated legislation does not exist, general laws may still provide the answers to many questions. Nonetheless, given the complexity of the topic, question marks remain in many cases as regards the exact manner in which the various regulations and other public authorities, courts of law and arbitration tribunals will read and apply older legislation to new technologies.
Are communications networks or services regulated?
Yes. The main legal instrument governing communication networks and services is the Government Emergency Ordinance no. 111/2011 on electronic communications (“GEO 111/2011”), which transposes the main EU provisions in the field of electronic communications.
The communications regulator, namely the National Authority for Management and Regulation in Communications ("ANCOM”) issues decisions regulating specific aspects pertaining to the communications field.
If so, what activities are covered and what licences or authorisations are required?
GEO 111/2011 covers all activities in the field of communications networks and services and establishes the general framework for regulation of electronic communications networks and services, the authorization of such activities and promotes competition on the market. In addition, there is special legislation encompassing laws and emergency ordinances on certain topics as well as secondary legislation (mainly government decisions and enactments of the telecom body).
The provision of electronic communications networks and services is subject to (i) general authorization and (ii) licenses for the use of limited resources for the provisions of electronic communications networks and services, such as radio frequencies, numbering resources and other associated technical resources. These licenses are subject to certain technical parameters and are granted for a limited period of time. The general authorizations as well as the licensees are issued by the National Authority for Management and Regulation in Communications ("ANCOM") in accordance with its decision no. 987/2012 on the general authorization regime for the provision of electronic communications networks and services.
Is there any specific regulator for the provisions of communications-related services?
Yes. The regulatory authority in the sector of electronic communications is the National Authority for Management and Regulation in Communications ("ANCOM") (in Romanian Autoritatea Națională pentru Administrare și Reglementare în Comunicații). ANCOM has been established as a result of the reorganization of the National Authority for Communications ("ANC") (in Romanian Autoritatea Națională pentru Comunicații).
Are they independent of the government control?
ANCOM was established pursuant to the Government Emergency Ordinance no. 22/2009 as an autonomous public authority under the control of the Romanian Parliament and financed entirely from its own revenues.
Are platform providers (social media, content sharing, information search engines) regulated?
At present, there is no Romanian framework specifically targeting platform providers.
However, EU regulations such as the GDPR also apply to platform providers inasmuch the collection, storage and processing of personal data is concerned.
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (the “Copyright Directive”) imposes specific obligations on online content-sharing service providers performing an act of communication to the public (or an act of making available to the public) for the purposes of the Copyright Directive when same give the public access to copyright-protected works or other protected subject matter uploaded by its users. Member States are under the obligation to transpose the Copyright Directive by 7 June 2021.
Furthermore, as part of the digital market, there is currently a Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services undergoing the legislative process at EU level. The proposal essentially lays down rules to ensure that business users of online intermediation services and corporate website users in relation to online search engines are granted appropriate transparency and effective redress possibilities.
In addition, the European Commission is carrying out an in-depth analysis of algorithmic transparency and accountability. This project is aimed at providing for an in-depth policy-relevant study of the role of algorithms in the digital economy and society, in particular how algorithms shape, filter or personalize the information flows that they intermediate.
The European Commission has also issued the Recommendations on measures to effectively tackle illegal content online of March 1, 2018. The recommendation provides that Member States and hosting service providers (in respect of content provided by content providers, which they store at the request of those content providers), are encouraged to take effective, appropriate and proportionate measures to tackle illegal content online (illegal content means any information which is not in compliance with EU law or the law of a Member State concerned).
In any case, platform providers carrying business in Romania are to comply with other relevant areas of law imposing specific obligations and standards such as the rules that govern electronic commerce, consumer protection, misleading advertising, audio-visual services (where applicable), e-commerce, competition, etc.
If so, does the reach of the regulator extend outside your jurisdiction?
Please see the answer to question 6 above.
Does a telecoms operator need to be domiciled in the country?
The Romanian legislation in the sector of electronic communications does not require an operator to be established on the territory of Romania.
Are there any restrictions on foreign ownership of telecoms operators?
Under the Romanian legislation there are no foreign ownership restrictions with regard to telecom operators. As a matter of principle, foreign entities that provide telecom services in Romania need to follow the same authorization procedures as Romanian entities.
Are there any regulations covering interconnection between operators?
Yes, namely GEO 111/2011. ANCOM takes all necessary measures to ensure and encourage adequate access and interconnection as well as the interoperability of services in a way that promotes efficiency, sustainable competition, investments and innovation for maximizing the benefits of end-users. To accomplish this, ANCOM may impose certain obligations on undertakings, as follows:
- in order to ensure end-to end connectivity, the authority may impose obligations on undertakings that control access to end-users to interconnect their networks;
- in justified cases and if it is necessary, the authority may also impose obligations on undertakings that control access to end-users to make their services interoperable;
- to the extent that this is necessary to ensure accessibility for end-users to digital radio and television broadcasting services to provide access to application programming interfaces or electronic program guides on fair, reasonable and non-discriminatory terms.
The obligations and conditions imposed as per the above must be transparent, objective, proportionate and non-discriminatory and must follow a certain procedure provided by law. Also, such measures that may be imposed by the regulatory authority are without prejudice to the measures that may be taken regarding undertakings with significant market power.
If so are these different for operators with market power?
One of the tasks of ANCOM is to promote competition on the market. To achieve this, the authority identifies the relevant market and the undertakings with significant market power. In the sector of electronic communications, an undertaking is considered to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, that is to say a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers.
After conducting the market analysis and to the extent that it is necessary to promote competition on that market, ANCOM may impose, maintain, amend or withdraw, as the case may be, certain obligations on undertakings with significant market power. According to GEO 111/2011 and in line with the EU provisions (Access Directive) the authority may, in addition to the above impose, maintain, amend or withdraw the following in order to facilitate access to and interconnection of electronic communications networks and associated facilities:
- obligations of transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use, including any conditions that limit the access or use of services and applications;
- obligations of non-discrimination in relation to interconnection and/or access that ensure in particular, that the operator applies equivalent conditions in equivalent circumstances to other undertakings providing equivalent services, and provides services and information to others under the same conditions and of the same quality as it provides for its own services, or those of it subsidiaries or partners;
- obligations of accounting separation in relation to specific activities related to interconnection and/or access;
- obligations of access to, and use of specific network facilities in situations where ANCOM considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest;
- obligations of price control and cost accounting obligations; and
- obligations of functional separations; this obligation may be imposed when the authority considers that the above listed obligations have failed to achieve effective competition and that there are important and persisting competition problems and/or market failures identified in relation to the wholesale provision of certain access product markets; this obligation requires vertically integrated undertakings to place activities related to the wholesale provision of relevant access products in an independently operating business entity.
What are the principal consumer protection regulations that apply specifically to telecoms services?
GEO 111/2011 lays down the consumer protection regulations applicable for the sector of electronic communications.
Contracts concluded by consumers for the provision of access and interconnection to public electronic communications networks and services may be made on an initial period of up to 24 months. The offers and contracts designed for consumers must be transparent and offer the consumer sufficient information. For this reason, contracts concluded with consumers must contain the following minimum information:
- the identification data of the provider;
- the services provided, including in particular, if access to emergency services and caller location is provided, information with regard to the procedures for measuring traffic, the service quality levels offered, as well as the term for the initial connection;
- the prices and tariffs for each product or service covered by the contract, the way in which they are applied, as well as the means by which updated information on the tariffs for the provision of the electronic communications services and of the maintenance and repair services may be obtained;
- the duration of the contract, the conditions for renewal and termination of the contract, as well as the conditions under which service suspension operates;
- the applicable compensations and procedures in case the contracted service quality levels or other contractual clauses are not fulfilled;
- the means of initiating procedures for the settlement of disputes;
- the type of action that may be taken in reaction to security or integrity incidents or threats and vulnerabilities.
In addition, GEO 111/2011 contains certain provisions with regard to the conclusion of distance contracts. These provisions offer the end users with legal personality a favourable position in the sector of electronic communications.
Decision no. 158/2015 of the President of ANCOM regarding information obligations to end-users (“Decision 158/2015”) is aimed at ensuring transparency concerning the relationships between telecom operators and end-users.
The said decision establishes the information that electronic communications services providers have to make known to users (e.g. information to be included in invoices, information regarding commercial terms, network coverages, etc.) and the various means whereby such information must be transmitted/published (website, client care, sales department).
It also encompasses the terms and formalities for unilateral changes to contract conditions, information to be provided to the ANCOM, online archive of past commercial terms, etc.
Decision 158/2015 concerns Internet services providers and re-broadcasting providers in addition to telephony providers, who have such obligations since 2009. It thus applies to both providers of public communications networks and to providers of electronic communications services intended for the public.
What legal protections are offered in relation to the creators of computer software?
Legislation on intellectual property is in line with international practice, Romania having adhered to most of the international conventions on intellectual property, as well as to EU legislation in the field. According to EU legislation, computer programs are considered literary works. In Romania, computer programs are protected under Law no. 8/1996 on copyright and related rights, as republished (the “Copyright Law”). Article 73 of the Copyright Law provides that the protection of computer programs includes any expression of a program, application programs and operating systems expressed in any kind of language, whether in source code or object code, the preparatory design material and the manuals.
In Romania, copyright is protected provided that the work is original, takes a concrete expressive form and is able to be made known to the public. A copyright holder has the exclusive patrimonial right to decide whether, how and when its work will be used. In addition, he has the right to authorize or prohibit the following:
- the reproduction of the work;
- the distribution of the work;
- the import for trading on the domestic market, of copies of the work;
- the rental of the work;
- the communication to the public, directly or indirectly, of the work, by any means, including by making the work available to the public, in such a way that members of the public may access it from a place and at a time individually chosen by them;
- the broadcasting of the work;
- the cable retransmission of the work; and
- the making of derivative works.
Apart from the above general rights, copyright holders of computer software enjoy certain rights that are applicable especially to them. Thus, copyright holders of computer software have the exclusive right to do and authorise the following:
- the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole, including where the reproduction is required for the installation, storage, running, execution, display or transmission in the network;
- the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program;
- any form of distribution to the public, including the rental, of the original computer program or of copies thereof.
As per Government Ordinance no. 25/2006 on strengthening of the administrative capacity of Romanian Office for Copyright (“ROC”; in Romanian “Oficiul Român pentru Drepturile de Autor”; “GO 25/2006”) any producer of computer programs has the obligation to register with the national registry kept by ROC. However, said registration does not grant any copyright or ancillary rights.
Do you recognise specific intellectual property rights in respect of data/databases?
Yes. According to Law no. 8/1996 on copyright and related rights (the “Copyright Law”) a sui generis right for the protection of databases is provided for 15 years. The data base owner has the exclusive right to authorize or forbid the extraction or reuse of the whole or substantial part of the database. This sui generis right applies irrespective of the fact that the database or its content are protected under copyright or any other right.
What key protections exist for personal data?
On May 2018 the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”) became directly applicable in Romania.
As a consequence, the former Romanian national legal framework has been repealed and new attributions have been granted to the National Supervisory Authority for Personal Data Processing (“Data Protection Authority”) by Law no. 129/2018 for modification and completion of Law no. 102/2005 regarding the establishment, organization and functioning of the National Supervisory Authority for Personal Data Processing and repealing Law no. 677/2001 with regard to the processing of personal data and on the free movement of such data (“Law 129/2018”).
Law 129/2018 mainly refers to the powers of the President of the Data Protection Authority, the control and claims settlement attributions of the said authority and the judicial remedies available to data subjects.
In order to implement the provisions of article 9 paragraph (4) and articles 37-39, 42, 43, 83, 87-89 of GDPR, Romania has also adopted Law no. 190/2018 on GDPR implementing measures (“Law 190/2018”).
The implementing measures provided by Law 190/2018 mainly refer to the following:
- the processing of genetic data, biometric data or data concerning health for an automated decision-making or profiling should be made based upon the explicit consent of the data subject or an express legal provision and with the establishment of appropriated measures;
- the processing of a national identification data (personal identification number, identity card’s series and number, passport and driver license number, health social security number) and collection or disclosure of the documents that contain the same can be made only in accordance with article 6 paragraph (1) of GDPR; in case of a processing based upon letter f) of article 6 paragraph (1) of GDPR, the controller or the third party should establish certain warranties;
- data processing in the context of employment; in case an employer utilizes monitoring systems by electronic and / or video means, the processing of employees’ personal data based on employer’s legitimate interest is permitted only under certain specific conditions set out by Law 190/2018;
- for the processing of personal data and of special categories of personal data in the context of fulfilling a task carried out in the public interest, the controller or the third party should establish certain warranties set out by the law;
- the processing of personal data carried out for journalistic purposes or the purpose of academic artistic or literary expression can be made if the used data have been explicitly made public by the data subject or such data are closely linked to the capacity of the data subject as a public person or to the public character of the data subject facts;
- derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes are granted pursuant to article 89 of GDPR;
- the processing of personal data and of special categories of personal data by political parties, nongovernmental organizations of citizens belonging to national minorities and nongovernmental organization is permitted without the consent of the data subject, subject to certain warranties;
- the designation and the tasks of the data protection officer are in line with the ones provided by articles 37-39 of GDPR;
- the accreditation of certification bodies provided by article 43 of GDPR shall be made by Romanian Accreditation Association (in Romanian language - Asociația de Acreditare din România – RENAR) according to the EN-ISO/IEC 17065 standard and supplementary requirements issued by the Data Protection Authority; the corrective measures and penalties for public authorities and bodies are derogatory and refer to a remedy plan and the level of maximum fine (Ron 200,000, approximately EUR 43,000).
During 2018, the Data Protection Authority supplemented the regulatory framework for protection of personal data with rules and procedures regarding (i) the receipt and resolution of complaints by the Authority (Decision no. 133 issued on July 3, 2018), (ii) how investigations are to be conducted (Decision no. 161 issued on October 9, 2018) and (iii) operations for which a data protection impact assessment is mandatory ( Decision no. 174 issued on October 18, 2018).
Are there restrictions on the transfer of personal data overseas?
The transfer of personal data abroad is subject to the provisions of GDPR, no national regulations being enacted in this respect.
What is the maximum fine that can be applied for breach of data protection laws?
The maximum applicable fine is the one provided by article 83 paragraph 5 of the GDPR (administrative fine up to EUR 20 000 000, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher), except for the public authorities and bodies for which the maximum fine is of Ron 200,000 (approximately EUR 43,000).
What additional protections have been implemented, over and above the GDPR requirements?
The rules established by the GDPR should be read in conjunction with the rules set by Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (”e-privacy Directive”). The latter have been transposed in Romania by Law no. 506/2004 concerning the processing of personal data and the protection of privacy in the electronic communications sector.
Moreover, authorities who act in the field of the prevention, detection, investigation, prosecution and combating criminal offences are subject to Law no. 363/2018 on the protection of individuals with regard to the processing of personal data by the competent authorities for the purpose of the prevention, detection, investigation, prosecution and combating of criminal offenses or the execution of sanctions, educational and safety measures and the free movement of such data. Law 363/2018 transposes Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA.
Are there any regulatory guidelines or legal restrictions applicable to cloud-based services?
Cloud-based services are of significant importance in light of data protection law, since the data stored in the cloud moves freely between different jurisdictions. The data protection legislation does not provide per se restrictions applicable to cloud-based services. However, such restrictions are implied from data protection rules and principles. One of the data protection principles provides that data must be safeguarded and not transferred to third countries unless adequate safeguards are in place. For this reason, data controllers are legally required to conclude agreements when contracting with cloud service providers with a view to store data in the cloud. When storing personal data in the cloud the data controller must ascertain that the location of the data is known. This is of utmost importance, since the data may be stored on servers located in another country that may or may not provide an adequate level of protection as required under Romanian law. In other words, the data controller must ensure that the agreement concluded with the cloud service provider is in line with data protection rules. Throughout this agreement the data controller must make sure that he will not be in breach of any rules with regard to processing and transfer of personal data.
For transfer of non-personal data, the applicable legislation is the Regulation (EU) 2018/1807 on a framework for the free flow of non-personal data in the European Union, entered into force on May 28, 2019. The Regulation ensures that organisations are able to store and process non-personal data anywhere in the European Union. Access to data by competent authorities may not be refused on the basis that the data are processed in another Member State.
The Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (“NIS Directive”) has been transposed in Romanian legislation through Law no. 363/2018 on ensuring a high common level of security of networks and information systems.
Also, when Regulation (EU) 2019/881 of the Parliament and of the Council of 17 April 2019 on ENISA (the European Union Agency for Cybersecurity) and on information and communications technology cybersecurity certification and repealing Regulation (EU) No 526/2013 (“Cybersecurity Act ”) will be enacted, it will be directly applicable in Romania.
Are there specific requirements for the validity of an electronic signature?
Article 4 of Law no. 455/2001 on electronic signature defines the electronic signature (e-signature) and the extended e-signature. The latter is the equivalent of the advanced e-signature in the Regulation (EU) 910/2014 on electronic identification and trust services for electronic transactions in the internal market (”eIDAS Regulation”) and it must fulfil four conditions in order to be valid: it is uniquely linked to the signatory; it ensures the identification of the signatory; it is created using electronic signature creation data that the signatory can use under his sole control; it is linked to the data signed therewith in such a way that any subsequent change in the data is identifiable. Under Article 5 of Law 455/2001, an extended e-signature ensures the validity of an electronic document if it is based on a qualified certificate and generated by a secure signature creation device (similar to a qualified electronic signature under the eIDAS Regulation). Simultaneously, Article 6 recognizes the validity between the parties of an electronic document if e-signatures were used, provided the e-signatures are recognized by the parties. Moreover, in the instance where one of the parties does not recognize the e-signature, the court must have it verified by an expert.
In the event of an outsourcing of IT services, would any employees, assets or third party contracts transfer automatically to the outsourcing supplier?
When a company is outsourcing certain services that can be seen as a stand-alone function, and the outsourcing supplier also takes over the outsourced activity as such or certain assets/equipment pertaining thereto, there is a chance that we are dealing with a transfer of undertaking. In this case, the outsourcing supplier has the obligation to take over the employees attached to the relevant activity/assets/equipment.
The relevant provisions for the transfer of undertaking may be found in the Labour Code (Law no. 53/2003) and in Law no. 67/2006 on safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, which transposes EU Directive 2001/23 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses and the provisions of article 5 of EU Directive 2015/1794 of the European Parliament and of the Council of 6 October 2015 amending Directives 2008/94/EC, 2009/38/EC and 2002/14/EC of the European Parliament and of the Council, and Council Directives 98/59/EC and 2001/23/EC, as regards seafarers. Both enactments provide that all rights and obligations of the initial employer are automatically transferred in their entirety to the outsourcing supplier. A transfer of undertaking may not constitute ground for dismissal.
Moreover, the applicable legal framework provides that before any transfer of undertaking/outsource occurs, the employer and the outsourcing supplier must inform the employees on the following:
- the date of the transfer or a proposed date;
- the reasons why such transfer occurs;
- the legal, economic and social consequences of such transfer for the employees;
- any measures that may be taken with regard to the employees;
- the working conditions.
It should be mentioned, however, that from a GDPR perspective, it should be analysed which categories of personal data are necessary to be shared between the company which is outsourcing and the outsourcing supplier, in order to comply with the data minimization principle.
Moreover, the applicable legal basis for the data transfer should be assessed and properly identified. In order to comply with transparency requirements, employees should be informed as regards the data transfer, as per articles 13 and/or 14 of the GDPR, as the case may be.
If a software program which purports to be a form of A.I. malfunctions, who is liable?
Currently the Romanian national legal framework does not contain any explicit provisions with regard to any form of A.I. Therefore, the general rules on civil contractual liability and tort law, as well as administrative and criminal liability would apply on a case-by-case basis, depending on the specific circumstances of the case.
For instance, as per the Romanian Civil Code, any person is under the obligation to repair the damage triggered by any object in its custody. This obligation exists irrespective of any fault on behalf of the custodian.
It is considered that a person has custody over an object when it owns or where (based on the law or on an agreement, or even just as a matter of fact) it has control over the object and uses it in its own interest.
From another perspective, administrative offences may apply in case the A.I. software causes infringements of legislation (fo
r example, an infringement of competition law, if the A.I. facilitates collusion between the players on a certain market).
Lastly, in certain circumstances, it is not excluded that the malfunction of an A.I. system may amount to a criminal offence, in which case the question of the fault will be analysed on a case by case basis.
Nonetheless, as it happens on a global level, the question of accountability for A.I. systems and their results may raise rather difficult questions.
What key laws exist in terms of: (a) obligations as to the maintenance of cybersecurity; (b) and the criminality of hacking/DDOS attacks?
a) obligations as to the maintenance of cybersecurity; and
Government Decision no. 271/2013 regulates Cyber security strategy of Romania.
The provisions of Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (“NIS Directive”) related to cloud computing services has been fully transposed by Law no. 362/2018 concerning measures for a high common level of security of network and information systems ("Law 362/2018").
Law 362/2018 applies to operators of essential services ("OESs”) in the following fields:
- natural gases;
- air transport;
- railway transport;
- water transport;
- road transport;
- financial market infrastructure;
- water supply;
- digital infrastructure.
Law 362/2018 is also applicable to digital service providers (“DSPs”).
Amongst others, Law 362/2018 requires OESs and DSPs to:
- take appropriate measures to secure their networks and information systems;
- implement measures to prevent and minimize the impact of security incidents affecting the security of their networks and information systems;
- notify the competent authority (the Romanian National Computer Security Incident Response Team or “CERT-RO”) of any security incidents having a severe impact on service continuity;
- interconnect with CERT-RO’s alerts and co-operation system.
From a GDPR perspective, the obligations of OESs and DSPs to notify CERT-RO as regards security incidents do not interfere in any way with their obligations to notify data security breaches to the Romanian Supervisory Authority and data subjects, where applicable.
b) the criminality of hacking/DDOS attacks?
The following cyber crime related laws are particularly relevant:
- Law no. 161/2003 on certain measures for transparency in the exercise of public functions and the business environment and for the prevention and sanctioning of corruption - Title III - Prevention of cyber crime;
- Law no. 64/2004 ratifying the Council of Europe Convention on Cybercrime (E.T.S. no. 185, November 23, 2001); since said ratification, Romanian national laws have been amended so as to comply with the requirements of the convention regarding the collection, search, seizure, making available and interception of data; and
- the Criminal Code (Law no. 286/2009).
What technology development will create the most legal change in your jurisdiction?
It is noteworthy that Romania fosters a favourable environment for numerous start-ups as well as local hubs of major international players dealing with digital technology, with a strong emphasis on A.I. Thus, any legal change affecting the industry should be seriously considered beforehand.
However, it is hard to name only one technology development that would have the biggest legal impact, since any such important development has the ability to produce equally important legal change.
In Romania, as well as worldwide, one of the closest technology developments that have an appreciably effect on society is the development of the Internet of Things (”IoT”).
When all of your devices constantly collect data and communicate between themselves and even interact with the environment around them, one must be sure that they are not easily "corrupted" and that one`s data is not "stolen". Moreover, there is a need to develop devices and networks with an intense focus on security and create a compatible platform for the IoT. Currently, there are apps and devices that are unable to communicate between themselves due to lack of standardization.
Additionally, other technologies may have a strong impact on the legal framework.
For example, artificial intelligence alongside the increased automation of numerous industries (such as the quick rise of autonomous cars) as well as the interplay between artificial intelligence and other technologies may raise issues with regard to, amongst others, safety, compliance, intellectual property and accountability.
In its turn, the use of data and inherently of biased data may raise concerns from the perspective of human rights, equality and transparency due to their potentially adverse effects such as perpetuating discrimination).
An already common sight is the use of drones for a multitude of purposes from plain recreational purposes to wildlife monitoring, weather forecasting, filming, mapping, aerial delivery. While drones are becoming increasingly popular, their use may challenge the existing legal framework due to privacy concerns.
Hence, security and standardization are two major aspects to be dealt with by coming legislation.
As per the National Strategy of the Digital Agenda for Romania 2020, cybernetic security and the security of informatic systems is a priority for the Romanian government as well as a basic requirement for the electronic infrastructure of data networks, electronic services and communication.
Which current legal provision/regime creates the greatest impediment to economic development/ commerce?
By and large, EU and Romanian legal framework are very favourable to commerce and development hence the presence of numerous players as described at the previous point. Therefore, while there is always room for improvement in our view, there is at present no regulatory major impediment to economic development and commerce.
At this stage, there are no direct hindrances imposed by Romanian law on economic development. In that sense, while not finally resolved, matters such as accountability for the malfunction of A.I. (please see above at question 15) can be settled within the existing Romanian legal framework.
Do you believe your legal system specifically encourages or hinders digital services?
Our legal system is aligned with the EU legislation in the field of digital services. At the EU level, as well as in Romania the digital environment is regulated by laws that are currently outdated (see as an example the legislation for the electronic commerce sector, which was enacted in 2000), as well as encompassing many grey areas, since many aspects of the digital environment are largely unregulated. As a consequence, the current frameworks as well as case law fail to provide legal certainty for the development of digital services.
To what extent is your legal system ready to deal with the legal issues associated with artificial intelligence?
The Romanian legal system is neither less nor more prepared than other legal systems to deal with the risks and legal issues associated with artificial intelligence. There is yet no fully-fledged legislation at national or European specifically targeting A.I.
Recently, however, the Independent High-Level Expert Group set up by the European Commission issued the Ethics Guidelines for Trustworthy AI which provides a framework for achieving trustworthy AI, namely:
- it should be lawful, (by observing all applicable laws and regulations);
- it should be ethical (by complying with ethical principles and values); and
- it should be robust (technically and socially, since even with good intentions A.I. systems can cause unintentional harm both from a technical and social perspective).
Moreover, as mentioned under question 15, existing general legislation may still provide answers concerning many topics involving A.I.