This thesis analyses the evolution of the EU legal regulatory framework for electronic communications in light of the changes in the law's technological and business environment, namely the shift to Next Generation Networks (NGN). Using systems theory as its central research method, the thesis explores communications law as a self-referential phenomenon which, despite its internal attempts to promote itself by means of responding to the changing environment, remains locked-in by its own autopoietic structures. This is demonstrated by the law's traditional focus on voice telephony as the essential communications service provided in the public interest. Whereas the idea of 'technological neutrality' has enabled the law to embrace new applied technologies such as VoIP, it could not move its attention away from its autopoietic concepts to NGN-related issues such as net neutrality. Even though legal concepts without reference to any particular technology are increasingly used in regulation, as is the case with competition law images of 'relevant markets' and 'market power', the shift to NGN only remains visible to the law on its 'internal screen'. This becomes evident when the implementation of new technologies fails to achieve the results implied by the legal system, namely effective competition among different access infrastructures. Systems theory keeps a distance from both neo-liberal ideas that ideologically reject regulation, as well as from the autopoiesis of the NRAs' and the Commission's harmonising efforts, which inevitably result in more legal rules. Whereas the 'efficiency' of NGN investments cannot be implied based on the mere absence of ex ante regulation, the expected further proliferation of regulation based on the law's autopoietic programmes, although more cognitively open than before, will not be able to take on board all (possibly desirable) solutions that are not foreseen by the EU legal framework.

This thesis discusses jurisdiction to tax cross-border digital commerce. The primary objective is to consider the reasons for the erosion of jurisdictional links, or nexus, between countries and taxpayers' digital activities and evaluate possible solutions for addressing such nexus erosion. Whilst it is argued that digital commerce is impossible to ring-fence due to digital technologies transcending all industries, the main focus of this research is on automated business models as case studies for the broader tax issues applicable across the entire digital economy. Using cloud computing, online advertising and e-tailing models as examples of digital commerce in the narrow sense, this thesis demonstrates that the proxies for establishing jurisdictional nexus have become increasingly fluid, thereby challenging the traditional international tax regimes for profits and consumption taxation. Numerous policy solutions have been proposed in order to rectify nexus erosion, including global and territorial tax models. Unlike the previous research in this area, this thesis focuses on the nexus elements of such proposals and assesses their viability in the light of the wider Internet governance jurisprudence. Global tax solutions, such as global e-commerce taxes and formulary apportionment, are analysed in the context of the international governance regime for the technical Internet infrastructure. Territorial virtual tax solutions, such as virtual permanent establishments, withholding taxes and destination cash flow taxes, are considered in the light of the Internet jurisprudence on the 'effects' and 'targeting' nexus standards. It is argued that, given the lack of technical and political infrastructure, none of the proposed routes would be viable from a practical perspective in the near future. It is concluded, therefore, that a practical solution would involve retaining the traditional profits and consumption tax models, whilst testing a narrow version of the digital targeting nexus standard as a backstop anti-abuse measure. It is envisaged that the limited anti-avoidance provision would subsequently pave the way for a comprehensive long-term solution, as digitisation continues to transform global commerce.

Net neutrality is currently one of the most topical government policies up for debate. In the following paper, I will examine three cases in which net neutrality has been threatened by internet service providers and the Federal Communications Commission and reinforced by public interest groups, major website companies, and the public. The online regime has been a critical instrument in the outcome of all three cases, highlighting the role and influence of internet users in the virtual and physical public spheres. Some say that the battle is already lost. FCC Chairman Ajit Pai and his Republican majority in the agency are set on and have the capacity to push through legislation that will undo strict regulation of ISPs set by the Obama administration. The vote has yet to take place later this month, but the result should not detract the democratic nature and value from the decade-long debate. Net neutrality has been demonstrative of a civil society, one that uses all the tools, techniques, and platforms available to them in the fight against corporate interest. For its relation to First Amendment rights, its goals of redeeming public interest to rightful owners, and its use of new public spheres to organize civic participation, net neutrality is not only necessary for the success of the Internet, but the debate around it is also indicative of and essential to the growth of democratic debates around public policy.

菸品廣告規範之研究 中文摘要 就傳播法的角度而言，廣告規範可以說是傳播活動中涉及法律層面最廣，也是最為複雜的議題之一；而「菸品」廣告的存在由於具有相當的爭議性，因此亦稱得上是廣告規範中極具代表性的議題。本論文以菸品廣告規範為中心，藉由此項議題探討的「點」，試圖找出廣告規範的脈絡，進一步勾勒出廣告規範體系的「面」。故本論文處理菸品廣告所牽涉的法律層次，從抽象的國際公約及憲法，到具體的法律、法規命令及行政規則等均包含其中。 論文的架構大致將實務上已發生的菸品廣告案例類型化並釐清問題意識，以我國對菸品廣告規範的法理基礎、實務操作等「在地思考」的探討為「經」；加以對國際規範、外國立法例及實務操作等「國際觀點」的掌握為「緯」，完成本項議題的研究。 研究發現，我國現行菸品廣告規範面臨最大的問題在於菸品間接廣告問題、雜誌廣告規範的漏洞，以及法條競合所引發的適用問題。解決這些問題除了可以藉由國內司法體系的運作外，研究結果顯示修正相關法律規定會是解決問題最好的方式。本論文透過對世界衛生組織制定的全球菸草控制架構公約，以及對歐盟、英國、芬蘭、挪威、美國、加拿大、新加坡、泰國、南韓、日本、澳大利亞、紐西蘭等國家有關菸品廣告規範內容作一整理與分析後，提出全面禁止菸品廣告的規範方式不但不會違背我國憲法對人民基本權利的保護，更是符合未來國際趨勢的見解；而此亦與世界銀行公布的《遏止菸草流行─政府與菸草控制經濟學》報告中，指陳全面禁止菸品廣告為減少菸草需求的非價格措施最佳方式有異曲同工之處。 本論文最後針對現行菸品廣告規範主要的具體法律條文，即菸害防制法第九條及第十條提出修法建議；同時為求執法實務與立法目的一致性，文末並提出執法與實務稽查等多項建議提供我國政府相關單位參考，使本論文確實達到理論與實務的充分結合。 / A Study on the Regulation of Tobacco Advertising Abstract There is no doubt that in the area of communications law the regulation of advertising is one of the most complicated and widespread issues. Among them, tobacco advertising is perhaps the most controversial topic. This dissertation focuses on the regulation of tobacco advertising in Taiwan. This dissertation finds that, in recent years, tobacco companies spent huge sum of money in advertising, resulting in an increase in tobacco consumption. Although according to the Tobacco Hazards Control Law of Taiwan, tobacco advertising is strictly restricted; the phenomenon is that tobacco companies tend to use legal loopholes. This dissertation analyzes the situation and discusses legal problems involved in tobacco advertising. Several issues are emphasized. First is the problem of tobacco indirect advertising. By indirect advertising is meant tobacco company advertises a third product the purpose of which is, however, to promote tobacco products. Secondly, the issue of tobacco advertising in magazines is discussed. The law of Taiwan, due to the 1986 U.S.-Taiwan Trade Agreement, allows a certain amount of tobacco advertising in magazines. Nevertheless, the law does not take into consideration certain circumstances, thereby causing loopholes during enforcement. Last but not least, focus is placed on the application of Tobacco Hazard Control Law. Specifically, the problem of concurrent application -- a unique but not uncommon legal issue in Taiwan’s legal system -- is analyzed. Methodologically, this dissertation adopts the comparative law approach. By examining WHO’s FCTC (Framework Convention on Tobacco Control) and comparing the laws of Taiwan with that of the international convention, the laws of European Union, United Kingdom, Finland, Norway, United States, Canada, Singapore, Thailand, South Korea, Japan, Australia, and New Zealand, the author concludes that a comprehensive ban on tobacco advertising is constitutionally sound and compatible with international trend. Lastly, this dissertation tries to provide solutions to Taiwan’s present legislative and enforcement works. In sum, some of the laws need to be amended; while enforcement works may be improved by introducing a systematic change.

為國民的健康把關，通常是政府作為實現國民健康權的一種具體作為，有關國民的用藥安全更是政府責無旁貸的責任。本論文著眼於「虛擬藥房」的藥品廣告刺激一般常民用藥的消費過程，政府基於保護國民健康所採取的介入方式是「法規範」對藥品廣告的管理，此種管理方式隨著藥品本身與商業言論的時空變遷會有緊縮或放寬的變革，然而易侷限於專業精英討論的上層層次；後有主管機關意識到常民健康的落實須直達正確的用藥觀念，以健康促進作為彌補上層可能無法下達困境的下層層次。 本論文以為，此二層次對應的概念仍屬「由上對下」的意識，亦即「政府」下對「常民」的概念。這種由上而下的把關做法，在維護國民「健康權」的國家、社會與個人法益上固然有其必要；惟欲落實整體健康權的實踐，仍須回歸「健康素養」的具體貫徹。亦即，本論文主張政府所主導的法規範或健康促進的作為，必須同時伴隨常民健康素養的賦權，兼顧「由下而上」的作法，不斷促使法規範與社會現實互為主體，則法規範才能真實維護與實踐國民的「健康權」。 / It is the constitutional and legal responsibility of the State to protect people’s health and achieve “the right to health” via, among others, the provision of safe medicines. The vast amounts of advertisings have challenged the State to providing safety access to medicines. This thesis focuses on the advertisings of “virtual pharmacies”, and attempts to investigate how they stimulate consumer behaviors. Legally, the State controls pharmaceutical advertising by means of various different legislative and administrative measures. Nonetheless, this “top-down” process has had only limited effects due to rapid social change and the evolution of the protection of commercial speech. This thesis argues that, to fill the gap, the promotion and development of “health literacy”, i.e. a “bottom-up” way, could be the answer to a meaningful control of pharmaceutical advertisings. This thesis conducts empirical analyses and applies them to various theories of political economy regarding pharmaceutical advertising. Moreover, the relationships between “health literacy” and “the right to health” are also elaborated. It is argued that to substantiate the constitutional “right to health”, the best way is to promote and develop the concept of “health literacy”. Only through empowering the consumers with the proper knowledge of “health literacy” can the State, assisted by the implementation of relevant laws, fulfills its responsibility. “Health literacy” is as important as law itself, and the latter cannot satisfactorily operate to arrive at the desired results without the construction of the former.