Technology-Neutral Legislation: Are Judges Able to Keep Pace with Technological Innovation?

Abstract

The job of judges is to deliver justice and, in doing this, judges are bound by law, but interpretation and application of law are never an entirely neutral operation and often several possible solutions can be envisaged. Rules that are too detailed often end up being too rigid and unable to be adapted to technological developments. Therefore, technology-neutral legislation is often preferable if it is sufficiently flexible to provide judges with a greater margin of interpretative discretion and potentially a set of guidelines for their decisions. Analysis of recent Italian jurisprudence shows that technology-neutral legislation may have a positive impact on jurisprudence. Examples in this paper clarify the essential role played by judges as interpreters of law who must not only possess the necessary legal knowledge but must also be able to understand how technologies impact on rights, and therefore how technologies operate.

Keywords: Technological neutrality, courts, evolutive interpretation, freedom of expression, criminal law, sexting