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► Complete reference : Frison-Roche, M.-A., Having a good behavior in the digital space, working paper, April 2019.
Summary: The jurist sees the world through the way he learns to speak
The Law of the Environment has already come to blur this distinction, so finally so strange because this classical conception refers to a person taken firstly in his immobility (Law of individuals), and then in his only actions (Contrats and Tort Law, Property Law). Indeed, the very notion of "environment" implies that the person is not isolated, that he/she is "surrounded", that he/she is what he/she is and will become because of what surrounds him/her ; in return the world is permanently affected by his/her personal action. On second thought, when once "Law of Individuals" was not distinguished from Family Law, the human being was more fully restored by this division in the legal system that not only followed him/her from birth to death but also in him/her most valuable interactions: parents, siblings, couples, children. Thus Family Law was finer and more faithful to what is the life of a human being.
To have instituted Law of Individuals, it is thus to have promoted of the human being a vision certainly more concrete, because it is above all of their identity and their body about what Law speaks, astonishing that we have not noticed before that women are not men like the others. To have instituted the Law of the people, it is thus to have promoted of the human being a vision certainly more concrete, because it is above all of his identity and his body that one speaks to us, astonishing that the we have not noticed before that women are not men like the others
From this concrete vision, we have all the benefits but Law, much more than in the eighteenth century, perceives the human being as an isolated subject, whose corporeality ceases to be veiled by Law
This freedom will come into conflict with the need for order, expressed by society, social contract, state, law, which imposes limits on freedom of one to preserve freedom of the other, as recalled by the French Déclaration des Droits de l'Homme of 1789. Thus, it is not possible de jure to transform every desire in action,, even though the means would be within reach of the person in question, because certain behaviors are prohibited in that they would cause too much disorder and if they are nevertheless committed, they are punished for order to return. Thus, what could be called "law of behavior", obligations to do and not to be put in criminal, civil and administrative Law, national and international Law, substantial Law and procedural Law :they will protect the human being in movment pushed by the principle of freedom forward others and thing, movement inherent in their status as a Person.
The human being is therefore limited in what they want to do. In the first place by the fact: their exhausting forces, their death that will come, the time counted, the money that is lacking, the knowledge that they does not even know not holding, all that is to say by their very humanity; Secondly, by the Law which forbids so many actions ...: not to kill, not to steal, not to take the spouse of others, not to pass as true what is false, etc. For the human being on the move, full of life and projects, Law has always had a "rabat-joy" side. It is for that reason often ridiculous and criticized because of all its restraining regulations, even hated or feared in that it would prevent to live according to our desire, which is always my "good pleasure", good since it is mine. Isolated and all-powerful, the human being alone not wanting to consider other than its desire alone.
Psychoanalysis, however, has shown that Law, in that it sets limits, assigns to the human being a place and a way of being held with respect to things and other persons. If one no longer stands themselves by the prohibition of the satisfaction of all desire (the first of which is the death of the other), social life is no longer possible
But this presentation aims to make it possible to admit that the criterion of Law would be in the effectiveness of a sanction by the public power: the fine, the prison, the confiscation of a good, which the rudeness does not trigger whereas Law would imply it: by this way we are thus persuaded of the intimacy between the public power (the State) and Law... But later, after this first lesson learned, the doubt comes from the consubstansuality between Law and State. Is it not rather appropriate to consider that Law is what must lead everyone to "behave well" with regard to things and people around them? The question of punishment is important, but it is second, it is not the very definition of Law. The French author Carbonnier pointed out that the gendarme's "kepi" is the "Law sign", that is to say what it is recognized without hesitation, but it is not its definition.
The first issue dealt with by Law is then not so much the freedom of the person as the presence of others. How to use one's freedom and the associated deployment of forces in the presence of others? How could I not using it when I would like to harm them, or if the nuisance created for them by the use of my free strength is indifferent to me
We do not use our force against others because we have interest or desire, we do not give him the support of our strength while he indifferent us, because Law holds us. If the superego was not enough. If Law and the "parental function of the States" did not make alliance. We do it because we hold ourselves
Or rather we were holding ourselves.
Because today a new world has appeared: the digital world that allows everyone not to "hold" himself, that is to say to constantly abuse others, never to take them into consideration, to attack massively. It's a new experience. It is not a pathological phenomenon, as is delinquency (which simply leads to punishment), nor a structural failure in a principle otherwise admitted (which leads to regulatory remedies) but rather a new use, which would be a new rule: in the digital space, one can do anything to everyone, one is not held by anything or anyone, one can "let go" (I). This lack of "good behavior" is incompatible with the idea of Law, in that Law is made for human beings and protect those who can not afford to protect themselves; that is why this general situation must be remedied (II).
Cornu, G., Linguistique juridique, 2005.
Frison-Roche, M.-A. & Sève, R., Le Droit au féminin (ed.), 2003.
Under this "mask" of the "subject of Law", we are all equal. S. Archives de Philosophie du Droit, Le sujet de droit, 1989.
Baud, J.P., L'affaire de la main volée. Histoire juridique du corps humain, 1993.
Read the article of Alain Supiot about the idée of Rule common of all, under the discussion between all, presented by this author through the artwork of Kafka : "Kafka, artiste de la loi", 2019; Kafka is very present in the work of Alain Supiot, for example in his First Lesson in the Collège de France, 2012, or in an Introduction of La Gouvernance par les nombres ; This latter book is now available in English : Governance by numbers. The making a legal model of allegiance, 2017 (translated by S. Brown).
That's why splitting Persons Law and Family Law masks another reality: the family is not made up of third parties. The links are there. They pre-exist. Starting from the only Persons Law pushes to think one can "build" his/her family by links drawn on white paper: the contracting of the families made up of individuals becomes thinkable, even natural.
I. THE TRANSFORMATION BY THE DIGITAL SPACE OF THE LEGAL CONCEPTION OF WHAT IS A "GOOD BEHAVIOR"
Let's go back to what it means legally for a human being to "have a good behavior", and more precisely to "behave well by oneself" (A) in order to measure how for the first time the digital space, in that it is not framed, allows any person who desires, not to "hold", and therefore not to behave well to others, pouring streams of hatred and inaccuracy on everything and on everyone, without stopping (B).
A. WHAT IS TO "HAVE A BEHAVIOR" AND TO "HAVE A GOOD BEHAVIOR"?
Because in order to have a "good" behavior (2), il is necessary firstly and foremost "to have a behavior which holds itself" (1).
1. To hold by oneself
To "hold" supposes an action in the duration: for example one holds an object when grasping it and maintaining it during a certain period of time. Thus, to hold supposes a resistance to time, a time that passes and which carries everything away, while, because one "holds", something can remain.
Thus, one must already be oneself identical in the time that passes in order to be able to fit into one's identity in an ever-changing environment. This founding discussion between Parmenides (Being) and Heraclitus (Becoming), decided by Plato who, by the notion of Person, injected what remains in what passes yet (and this is the beginning of History). The French Law professor Michel Vivant is right to open his law book devoted to the droit d'auteur on the assertion that "Rien n'est immuable" (Nothing is immutable) ; the "author" is an uncertain category and as little permanent as are the rivers, it is indeed under the chamarred costume of so many neighboring rights, that the idea of an ever-human creation remains.
To obtain this permanence in a world that alway moves, the human being must keep, for example, to remember what they said: we can not stand if we have no memory, if we only live in the moment. Law is there to remind us of the promises our words make, even though we have changed since, even though things have changed since then. That is why it was so difficult to integrate in the positive technic of Contract Law the theory of the unforeseen because since always the river is at every moment different but it is the human being who, immersed in the river of events, as a person must yet remain in what they has said and "keep their promises", must remain in what they has done and "render account".
2. To behave "well"
Se tenir "bien" renvoie au fait que nous ne sommes pas seuls. Nous formons des sociétés avec des personnes qui sont différentes de nous, que nous ne connaissons pas, qui ne pensent pas comme nous, et qui sont pourtant à part égale dans la même société.
Standing "well" refers to the fact that we are not alone. We form societies with people who are different from us, who we do not know, who do not think like us, and who are howerver equal in the same society.
These distant and abstract aliens, our political duty is to consider them as enjoying an equal "freedom" in a link of "equality" with "fraternity", even though they are not members of our family. They are foreign brothers. In their regard, we have the political and legal duty to "behave well
This does not mean that we must seek to know them, to conceive them as members of our family (system of the Old Regime which elaborates a system of cloistered castes and intermediate bodies, in which we recognize only the one which has an effective link with oneself) but that we must recognize them as political equals. As the French Hight Court (Court of Cassation) has said, our contacts on Facebook are not really our "friends"
It is a political duty of fraternity, stressed by Aristotle, leading to a legal obligation of solidarity, the basis of social protection systems
We have the freedom to think that Jews, blacks, Arabs, homosexuals and women (this is often a package in the minds of some) are inferior beings, that we would like to slow down or even exclude. If we are with family or friends, we can say it and sing it. But what Law forbids is to say it publicly, to make books of it, to disseminate it to the public. To "hold well" is to hold inside all the harm we think of others and all the harm we wish them. Criminal Law, both for insulting and inciting racial hatred or homophobia, has delineated the line separating the intimate, even collective, where we can tell everything, from the public, space where you have to stay well because you are no longer between us
Political statements such as "I say aloud what everyone is saying in a whisper" or "I am simply uninhibited" are criminogenic because they encourage us not to behave well, and therefore not to stand at all.
B. FOR THE FIRST TIME, A NO-NORMALISED SPACE ENABLING ANYONE NOT BEHAVING WELL
Now, the digital space makes it possible for someone not to stand because the person interacts with others in a multiplied and masked way not by the legal personality which is intimate with the identity, but on the contrary by virtual personnalities intimate with anonymity and multiple identities, false and instantaneous (1). In this way, these anonymous duplications that are contrary to the very idea of "person" have the effect - even more are the means - of a surge of hate and massacre of this very idea of person (2).
1. The digital world, place of masked and multiplied human beings, qualities in contradiction withe the legal notion of Person
In the digital space, in which everyone can enter, it is possible to create not even an identity but rather an avatar
But personality is a precise and legal concept that was first developed in Law to translate a reality: a human being is thus "translated" as a "person" in the legal order. But it is also because of the effect of the Case Law to affix the quality of "person" on economic entities, not to translate a reality
In the digital space, human beings or organizations act, develop strategies, reach out to others, multiply themselves, act anonymously, disappearing at the very moment when they have to answer for what they have just done or said. In this immaterial world, where Law can not seize bodies to trivially demand accounts, it is enough to give birth to appearances of existing beings to act without ever answering. Since it is possible to create endless new appearances, new false identities, new false faces, the more these voices multiply and the less the existence of actual beings becomes acquired and those who act behind these personalities which are just Potemkin strategies.
Today we are in a situation where the people we believe to speak to do not exist and where the real people who come to us are actually invisible. These depersonalized digital actors have often devastating behaviors for other human beings, who remain helpless.
2. The systematic attack on the dignity of others by depersonalized digital actors
Recent studies show that the western world is becoming more and more sad and more and more dancing. Empirical academic studies conducted in the United States show that ubiquitous social networks refer people to an image of the world that makes them sad and febrile, effective atitude that changes their behavior in the digital world, then in a "real" world digitized
Reproach is an action. An action that can be a sad action
In this way, "conspiracy" is the very opposite of "accusation" in the legal sense of the term
Reproaches become not only irrational but insane and inadmissible when they take the form of incitement to racial hate, defamation, insult, hate speech. There should then be a consequence: in these cases, the perpetrator of these actions must answer in front of the Law, in particular before the criminal judge. But to answer in front of a judge, it is necessary to have technically "the aptitude", that is to say to be a "person" in the legal sense, that is to say to have an identity: a name for to be called, a domicile or a registered office to be located and summoned. However, the digital world by its inconsistency, its virtuality, its globality, allows to act without real identity and without being localized.
These "depersonalized" digital actors that we are are, no longer bound by this straitjacket of legal personality which, in advance, compels us, like a backbone, to keep us in time and to respond tomorrow to what we have said and did to others yesterday, to perform tomorrow what we promised yesterday, to justify tomorrow the accuracy of our remarks broadcast yesterday. No, this framework inherent to the notion of Person, as the person and their behavior in time on their environment are inseparable
Quid facere ?
II. SOLUTIONS FOR INTRODUCING PERSONAL HOLD IN DIGITAL SPACE
One is a little helpless, except to give great credit to the only external Law - to which the Internet users escape - or to the only ethics - that the Net surfers would express in their collective behavior in a shared morality thanks to an education
In this space the hold, these operators, organized by Law and supervised by Public Authorities, can admit only beings and entities presenting themselves as "persons" in the legal sense of the term, that is to say acting with known and constant identity. By this sole fact, as they are legally persons and not ghosts, they will stand better. In a more precise way, the person defining as a "subject of right", holders of rights, these digital operators, by the power of constraint that Law must grant them, must have the obligation to let only identified and concretely legal persons obliged to respect others, through the effectiveness of the rights of the latter (B). For example intellectual property rights.
A. COMPLIANCE LAW, FOR INTERNALIZING IN CRUCIAL DIGITAL OPERATORS THE RESPONSABILITY OF MAINTAINING THE DIGITAL SPACE SUBSTANTIALLY
In a classic view of Competition Law, the risk taken in consideration is the dominance of digital operators which hold a world they have built: platforms and search engines. Not that we must not be vigilant because their common economic model is the exploitation of data, which is a concern for both competition and individual freedoms. But Competition Law itself does not reproach an operator for being powerful
1. Using the power of crucial digital operators to restore order in the digital space
The relationship between Law and Force is such an old theme ... Law is often defined as the right force that stops the unjust force
The strength that these entrepreneurs have had in constructing a world that did not exist, the strength they derive from it by nature, since they are its architects, does not deserve to be opposed to it. But it does not justify either that they constitute them in "masters"
Since digital operators have built and hold a new space, which has in turn transformed the so-called "real world", it is up to them to maintain order, that is to say, to make sure that rules of Law and civility be active there so that sort of speeches would not be held there, that behaviors would not be admitted.
Because they must not be the masters of this world, because they would then be our masters, which they are not legitimate to be, these rules of behavior must be set by the Politics, it ie the Legislator or the Courts or the Public Authorities of Regulation and Supervision. But because they are crucial digital operators, that they hold the places where everything is exchanged, that they constitute the networks where everybody is, the engines by which one accesses everything, it is up to them to put implement these rules of behavior.
The Politics and the Public Authorities must therefore not counter their private power but use it by internalizing in these operators the rules of behavior that Law has fixed, reminding these companies that they are not the new "Constituents" of a global world since the world would be virtual
2. Require crucial digital operators to substantially controle what happens in the digital space, which is not simply a neutral services market
For example, Laws are forcing crucial digital operators, such as platforms or social networks, to remove false information. For example, the French Act of 22 December 2018 relative à la lutte contre la manipulation de l'information (relating to the fight against the manipulation of information) and the forthcoming Act against hate content that oblige these operators to intervene in Ex Ante against these hateful or false content.
These texts characterized by very specific goals (in the first Act of 22 December 2018, the dissemination of false information is only referred to during the elecoral periods) are inspired by a more general idea: to obtain the respect of human beings, endangered by a new world where one can say anything (to pass for true what is false) and to attack anyone, without any possible reaction other than in return the increase of aggression. However, as René Girard demonstrated
To stop this, Law, in particular European Union Law, does not conceive of the European digital space as constituting a simple "digital single market", which sometimes seems its only plan, but as a comprehensive world, involving substantial and central protection of the human being. For the moment, Europe, still too divided between the European Union and Europe of human rights, anticipates only a digital services market, whereas it is a new world in which human beings live that it is necessary to organize for them.
As it is sovereign, Law must order the crucial digital operators to protect these human beings. European Union Law has already done so with brilliance and success by obliging them to respect them when storing, handling and disposing of personal data, first and foremost by the case law of the Court of Justice condemning Google Spain. in 2014 then Facebook in 2015, then by the 2016 Regulation (GDPR).
It is necessary to go further, Law fixing these goals, the operators concretizing them.
B. PERSONS WITH KNOWN, CONSTANT AND CONTROLLED IDENTITY, RESPECTING OTHERS THROUGH THEIR RIGHTS
In order for human beings to stop being victims of behaviors that take themselves as if they were only objects through the use of their "data"
This is why it is essential to obtain through the power of these operators that everyone in the digital world "behave well", that is to say, respects others. For this, operators must be required to demand that everyone be compelled to act openly, that is to say with known, constant and controlled identity (1). Then it is necessary to internalize in the crucial digital operators an obligation that is external to their intrinsic goal of entrepreneur but that is due to their crucial position inherent in this digital world: to ensure that some respect the rights of others, the only effective way to a person to respect others: through the implementation of the rights of others (2).
1. Forcing the crucial digital operators to force everyone to act with a face-lift: the "politics of real identity"
To compel people to "stand", Law must give the order to put an end to the possibility of creating false profiles. It is not permissible for the mechanism of the "fictional company" to be sanctioned in Corporate Law and to admit the creation of false profiles
Moreover, if the legal notion of the "person" refers to the mask (persona in Latin), it is to better attach to the human being, who constantly changes, an identity which as for it remains and always allows others to addressing it
Obliged to act under their identity, having to bear the consequences of their speech, human beings maintain the violence or the falsity of the words or behaviors, but most of the time, because the necessity to assume it is a way to answer Ex Ante in the eyes of all, this leads to a moderation. The mask of hate is not graceful, it is more difficult to wear it in one's own name
In a more general perspective, the person who shows their "true face" stands by this sole fact. For example in the coherence between their past, present and future behavior. The geniuses of their three Christmas come constantly to ask them to account, in this digital space that keeps everything in memory, and this can be enough, by the maintenance of memories, to give them support. It is therefore essential to forbid anonymity, with specific exceptions (for example for authors).
2. Forcing crucial digital operators to force everyone to respect the rights of others: the effectiveness of the person as a "subject of Law"
If we want to go further in the requirement that everyone "have a good behavior", that is to say, respect others as a person
However, the subjective rights are constantly unknown in the digital world. Probably because this world was built on technology and that Law is little considered, according to this new adage that would pose that the coding of the algorithm would be the only "founding law", the legal prerogatives of human beings, the subjective rights of people, being not even conceived.
No doubt the Americans were quite surprised to see Europe bite to the fore to remind people that they can not use the privacy of others to sell better to others, as data trading seems a natural thing across the Atlantic. . It is true that the knowledge of the tastes of a person has an economic value but all that is of value, since susceptible of supply and demand, is not legally available: the person is not legally at the disposal to others, it has their fundamental right not to be. This is the definition of the subject of law, underlying all the law of personal data. More generally, Compliance Law has internalized in companies the obligation to concretize this subjective right to remain master of oneself, against the natural forces, here the forces in the digital world
If we consider that the Law of Personal Data is only one example of the more general obligation of the crucial digital operators, they must be obliged to participate actively in the fight against systematic ignorance of rights not only in the Internet but through the Internet. This is especially true for intellectual property rights.
European Union has adopted a directive on the rights of authors (which is not the same concept as copyright)
C. THE PROJECT OF A DIGITAL WORLD AS A WORLD CIVILISED BY COMPLIANCE LAW
If we manage to do this, then this digital world that is already there, that has transformed the whole world in which we live because the digital world has digitized the world
To have a good behavior by not spreading everything they think, by not attacking others, by staying consistent over time in their behavior, their words and their own person.
Law must force people to do this because the coexistence of people and the respect they must have for each other, in the rights of each other, is one of the reasons why Law itself exists.
It is the role of Law to impose this imperative, which is a political one, since this civility alone will make the digital world become a civilized world, which for the moment is not.
This imperative must be internalized as a goal to achieve in the economic operators which created the digital world and which hold it: it is the object of Compliance Law
On the political duty of friendship, c. Politique de l'amitié, Galileo, 1994; cf. before Aristotle about man as "social animal." Indeed, friendship supposes that I can address myself to the other, speak to them while they is able to answer me. A society in which we do not talk to each other but we talk about each other, including to say good things about them ("I like", for example) a not a societe of fraternity and friendshep but a society of adoration and hate, because adoration is just the reverse of hate, but born of the same logic, which is based on the spectacle.In this one must have many friends, that is to say, to be loved by all, to be a "star." In the classical political conception, it was said that "he who has many friends has none" (Aristotle).
Civ., 2ième, 5 janvier 2017, case where the French Cour de cassation says our contacts on Facebook are not necessarely our "friends".
Supiot, A. (dir.), La solidarité. Enquête sur un principe juridique, 2015.
The question becomes more difficult when the "inter-self" increases, for example between students of the same class. Is one still in a private situation where one can laught well together ? For example, having fun distributing the roles where some would be the Jews and the others the Germans ? That question has been posed about an "integration game" in an "integration week-end" in a French University. This game, organized by student, had for title "Rafle 2019, was done by a private group, communicating via Facebook. The university president decided to use his disciplinary power against this practice.
For a perfect description of the digital world : Spielberg, S., Ready, Player One.
Perelman, Ch., Logique juriqique. nouvelle rhétorique, 1978.
In the French legal systeme, it was a case law decision, taken in 1954 by the Cour de cassation (judicial Hight Court) dans the case Saint-Chamoux , which gave the legal personality to the workers comity of a factory, while the Legislator only gave this personality to the entreprise's workers comity ; this reasoning was the same of the current notion of "effective beneficiary".
What reflects the case which has provoked the new French Act of 2019, named "Vigilance".
On the relations between the digital world and the "real" world digitalized, sFrison-Roche, L'apport du Droit de la Compliance d. ans la gouvernance d'Internet, 2019 ; to be published in English.
On the distinction made by Spinoza between the "sad passions" and the "joyful passions", so useful today, s. Spinoza, The ethics.
Trigaud, F., L'accusation. Recherche sur les figures de l'agression éthique, 1997, reprint 2001, Dalloz.
Bronner, G., Déchéance de rationalité, 2019.
Frison-Roche, M.-A., Le principe du contradictoire et des droits de la défense, 2014.
S. supra about that in the Introduction.
On ethical exemplarity that could apply, s. Canto-Sperber, M., La Compliance et les définitions traditionnelles de la vertu, in Frison-Roche, M.-A. (ed.) Pour une Europe de la Compliance (For a Europe of Compliance), 2019 ; to be published in English.
On the more general question of Ethics, Law and Person, s.Frison-Roche, M.-A., "Pour protéger les êtres humains, l'exigence éthique de la notion juridique de personne", in Droit et Ethique, 2018.
On the idea on the "Compliance Law", s.. Frison-Roche, M.-A., Le Droit de la Compliance, 2016.
S. for example in a constant case law the judgment the Cour of Justice of the European Union of 6 September 2017 Intel v/ European Commission
On relations between Law and Force, s. De l'injuste au juste, 1997.
Rochfeld, J., Contre l'hypothèse de la qualité des données à caractère personnel comme bien, in Les biens numériques, 2015.
On this notion de "crucial operator", v. Frison-Roche, M.-A., Proposition pour une nouvelle notion : l'opérateur crucial, 2006.
In this sens et more generally, s. Supiot, A., Introduction, in Prendre la responsabilité au sérieux, 2015.
Contra, s. Teubner, G., on his conception of the "supra-constitutionnality" because global firms would own et only them the global power to adopt global standards, a sort of constitutional power ; s. Constitutional Fragments. Societal Constitutionalism and Globalization, 2012 ; "L'auto-constitutionnalisation des entreprises transnationales ? Sur les rapports entre les codes de conduite "privés" et "publics" des entreprises", 2015.
Carbonnier, La personne comme sacré, ...
Frison-Roche, M.-A., The regulatory consequences of a world redesigned from the concept of "data", 2017.
On this point, s. Frison-Roche, M.-A., Compliance & Personnality, 2019.
On this point, see Introduction.
For example by Facebook.
Only in the films of Gerard Oury, a great filmmaker of hate and persecution, are we handing over the anonymous letters we wrote!footnote-1577.
On this movement, s.Lenaerts, K., "Le juge de l'Union européenne dans une Europe de la Compliance, in Frison-Roche, M.-A. (ed.), Pour une Europe de la Compliance, 2019 ; to be publishe in English.
Directive on Copyrith in the Digital Single Market , adopted by the European Parliament the 26 March 2019.
On the description of the digitalization of the world by the digital world, s.Frison-Roche, M.-A., L'apport du Droit de la compliance dans la gouvernance d''Internet,, 2019, to be published in English.
On the description of the digitalization of the world by the digital world, s.Frison-Roche, M.-A., L'apport du Droit de la compliance dans la gouvernance d''Internet,, 2019, to be published in English.
Frison-Roche, M.-A., L'apport du Droit de la Compliance dans la Gouvernance d'Internet, 2019 ; to be published in English.
Frison-Roche, M.-A., Compliance & Personnality, 2019 ; What the Law of Compliance can build relying on the European humanist Tradition, 2019.