Lecture:
Regulating the Digital Environment:
- Publicly contested- should we regulate at all? Or should we leave it free from interference? Initial debate
- Who gets to decide?
The Cyberlibertarians:
- Cyberspace as free from the flaws of our physical world- a fresh start for society- a utopian space. Issues supposed to
disappear in cyberspace. Also claim that the govt shouldn’t intervene in this bottom up community created by the people.
o ‘‘Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home
of Mind…. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason
to fear.’
A Declaration of Independence of Cyberspace, John Perry Barlow
The legitimacy/claim of states to intervene
Ways to enforce rules in the digital environment - no methods to enforce rules on the internet
Law and Borders:
- Law & Borders: Johnson and Post- argument:
o ‘Law’s traditional reliance on borders for law enforcement radically subverted by Internet:
1. Power: Control over physical space and monopoly on use of force over citizens.
Digitisation breaking down borders
2. Effects: Link between physical proximity and effects of behaviour.
Effects of content used to be obvious- but now breaking down in digital context.
3. Legitimacy: ‘consent of the governed’; those subject to laws have say in their formulation
We accept legislation etc due to democratically elected nature of body.
Internet challenging legitimacy connection- laws in the US indirectly having an impact on the
internet as a whole [concerning freedom of speech
4. Notice: Transparency regarding systems of rules in place.
Why people typically obey law- only obey law that we have been made aware of.
Notice issue if subject to laws in a different country where the internet purchasing is taking
place.
- Protective mechanisms failing for 2 reasons:
1. Technological work-arounds [VPNs etc]
VPN= virtual private network- allowing your IP address [where you are accessing information] to be
obscured or to convert to IP address of another nation.
The attempt to control the distribution of digital content can be subverted through tech work-arounds.
Law making= challenging in digital context.
2. Regulatory arbitrage eg. ‘Multiple-publication rule’ in Defamation Law (Dow Jones v Gutnik; Jameel).
If different states have different legal frameworks applicable to the same legal activity, might see Delaware
effect, a migration to the most favourable legal framework- to the one that is most beneficial.
Companies moving from stringent tax regimes to less strict ones [e.g.]
- Cyberspace is a distinct location: [J+P solution to the problem]
o Citizens may “travel” to cyberspace
o No current government or sovereign lawmaker has the authority to regulate ‘sovereign’ cyberspace
Power vacuum?
o Citizens of cyberspace (or Netizens) may travel between ‘zones’ in cyberspace seeking regulatory arbitrage.
Ability to move across the internet in a seamless way.
- New border for cyberspace:
o J+P find it possible due to different borders.
‘‘A more legally significant and satisfying, border for the “law space” of the Net consists of the screens and
passwords that separate the tangible from the virtual world’.
Should focus our attention to other new, important, questions:
o What procedures are best suited to its unique characteristics and the expectations of those
who engage in activities there?
In answering, they make an institutional claim- self governing system
- New institutions for cyberspace:
o The development of a self-governance system by a community of online users and service providers.
System operators have code at their disposal for enforcement;
To enforce the rules
They don’t envisage that the system operators would just impose power over the users
[optimistic?]
o Formulation and enforcement of the rules a matter for discussion.
A democracy?
e.g. early internet- rules of chat form based off of the mutual agreements- bottom-up system of rules.
, READ: how this might actually occur in practice. Who sets the rules + how they’re enforced.
o They use a lot of vague language
- Comity to resolve conflict:
o Defined by USSC:
‘‘the recognition which one national legislature allows within its territory to the legislative, executive or
judicial acts of another nation, having due regard both to international duty and convenience, and to the
rights of its own citizens or of other persons who are under the protection of its law’.
International law- requirement is to take into account the concerns fo other nations when rule-
making- doctrine based on respect.
Argument: this mechanism of governance is fine as it only impacts those who want to use the
internet- not fundamentally impacting the vital interests of others who aren’t online.
o Critical flaw of framework- it doesn’t scale up. They proposed this at a point in time
where it was small communities online. But now the internet has pervaded every aspect
of our lives and has been rolled out across the globe. This idea of bottom-up self
governance doesn’t hold when you apply it on such a large scale.
Has a lot of assumptions; assuming no dominant actor will have a significant
influence that= problematic.
Naive
Defamation:
Berezovsky v Forbes Inc & Michaels [2000] [UKHL 25; [2000] 1 WLR 10004:
- Defamation struggling with jurisdictional challenges
- Facts:
o Forbes published defamatory material regarding two Russian businessmen in Forbes magazine. Berevosky was not
a UK resident and only 0.25% (1,915 copies) of magazines were distributed in the UK.
o Question before the Court: Was the UK the correct forum for the case? [He sought to sue Forbes in the UK]
o Is there a sufficient link between the harm and the territory? Question about the ability of states to take cases
potentially not in their jurisdiction?
- Lord Steyn:
o The present case is a […] multi-jurisdictional case. It is also a case in which all the constituent elements of the torts
occurred in England. The distribution in England of the defamatory material was significant. And the plaintiffs have
reputations in England to protect. In such cases it is not unfair that the foreign publisher should be sued here.
- We have this problem - if courts accept jurisdiction due to torts being sufficient = a problem, because all courts could do it.
o Now, imagine this in a digital example.
Dow Jones v Jameel, Jameel [Yousef] v Dow Jones & Co. Inc. [2005] EWCA Civ 75:
- Someone should be able to sue all over the world
- Problem for content providers - their liability goes from where they’ve distributed public material to everywhere it has spread
on the internet
- The multiple publication rule
- Courts recognised this- so developed a threshold of the harm that needed to be suffered before the courts get involved.
- Facts of the case:
o ‘The WSJ obtained secret documents regarding al Qaeda, including a ‘Golden Chain’ document which listed 20
alleged Saudi financial backers of Osama Bin Laden, including Mr. Jameel. The WSJ published a story on its
website with a link to the 20 names.
Jameel argued that this would harm his reputation- therefore valid for defamation.
If they applied the Berezovsky test, then the English courts would be able to take the case, but court
recognised the risk of litigation pile on. Dug into the detail- how often had the content been accessed in the
UK?
6,000 subscribers to website in England and Wales, 5 subscribers had clicked on the hyperlink (3
of whom were known to the Court [lawyers]) This publication only met 2 people.
- Lord Phillips MR:
o It would be an abuse of process to continue to commit the resources of the English court, including substantial judge
and possibly jury time, to an action where so little is now seen to be at stake.
o De minimis rule
Two strands in the case law:
Single v multiple publication:
- Tension arose because of digitisation
- ‘Result: Ministry of Justice consultation paper Defamation and the internet: the multiple publication rule
Regulating the Digital Environment:
- Publicly contested- should we regulate at all? Or should we leave it free from interference? Initial debate
- Who gets to decide?
The Cyberlibertarians:
- Cyberspace as free from the flaws of our physical world- a fresh start for society- a utopian space. Issues supposed to
disappear in cyberspace. Also claim that the govt shouldn’t intervene in this bottom up community created by the people.
o ‘‘Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home
of Mind…. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason
to fear.’
A Declaration of Independence of Cyberspace, John Perry Barlow
The legitimacy/claim of states to intervene
Ways to enforce rules in the digital environment - no methods to enforce rules on the internet
Law and Borders:
- Law & Borders: Johnson and Post- argument:
o ‘Law’s traditional reliance on borders for law enforcement radically subverted by Internet:
1. Power: Control over physical space and monopoly on use of force over citizens.
Digitisation breaking down borders
2. Effects: Link between physical proximity and effects of behaviour.
Effects of content used to be obvious- but now breaking down in digital context.
3. Legitimacy: ‘consent of the governed’; those subject to laws have say in their formulation
We accept legislation etc due to democratically elected nature of body.
Internet challenging legitimacy connection- laws in the US indirectly having an impact on the
internet as a whole [concerning freedom of speech
4. Notice: Transparency regarding systems of rules in place.
Why people typically obey law- only obey law that we have been made aware of.
Notice issue if subject to laws in a different country where the internet purchasing is taking
place.
- Protective mechanisms failing for 2 reasons:
1. Technological work-arounds [VPNs etc]
VPN= virtual private network- allowing your IP address [where you are accessing information] to be
obscured or to convert to IP address of another nation.
The attempt to control the distribution of digital content can be subverted through tech work-arounds.
Law making= challenging in digital context.
2. Regulatory arbitrage eg. ‘Multiple-publication rule’ in Defamation Law (Dow Jones v Gutnik; Jameel).
If different states have different legal frameworks applicable to the same legal activity, might see Delaware
effect, a migration to the most favourable legal framework- to the one that is most beneficial.
Companies moving from stringent tax regimes to less strict ones [e.g.]
- Cyberspace is a distinct location: [J+P solution to the problem]
o Citizens may “travel” to cyberspace
o No current government or sovereign lawmaker has the authority to regulate ‘sovereign’ cyberspace
Power vacuum?
o Citizens of cyberspace (or Netizens) may travel between ‘zones’ in cyberspace seeking regulatory arbitrage.
Ability to move across the internet in a seamless way.
- New border for cyberspace:
o J+P find it possible due to different borders.
‘‘A more legally significant and satisfying, border for the “law space” of the Net consists of the screens and
passwords that separate the tangible from the virtual world’.
Should focus our attention to other new, important, questions:
o What procedures are best suited to its unique characteristics and the expectations of those
who engage in activities there?
In answering, they make an institutional claim- self governing system
- New institutions for cyberspace:
o The development of a self-governance system by a community of online users and service providers.
System operators have code at their disposal for enforcement;
To enforce the rules
They don’t envisage that the system operators would just impose power over the users
[optimistic?]
o Formulation and enforcement of the rules a matter for discussion.
A democracy?
e.g. early internet- rules of chat form based off of the mutual agreements- bottom-up system of rules.
, READ: how this might actually occur in practice. Who sets the rules + how they’re enforced.
o They use a lot of vague language
- Comity to resolve conflict:
o Defined by USSC:
‘‘the recognition which one national legislature allows within its territory to the legislative, executive or
judicial acts of another nation, having due regard both to international duty and convenience, and to the
rights of its own citizens or of other persons who are under the protection of its law’.
International law- requirement is to take into account the concerns fo other nations when rule-
making- doctrine based on respect.
Argument: this mechanism of governance is fine as it only impacts those who want to use the
internet- not fundamentally impacting the vital interests of others who aren’t online.
o Critical flaw of framework- it doesn’t scale up. They proposed this at a point in time
where it was small communities online. But now the internet has pervaded every aspect
of our lives and has been rolled out across the globe. This idea of bottom-up self
governance doesn’t hold when you apply it on such a large scale.
Has a lot of assumptions; assuming no dominant actor will have a significant
influence that= problematic.
Naive
Defamation:
Berezovsky v Forbes Inc & Michaels [2000] [UKHL 25; [2000] 1 WLR 10004:
- Defamation struggling with jurisdictional challenges
- Facts:
o Forbes published defamatory material regarding two Russian businessmen in Forbes magazine. Berevosky was not
a UK resident and only 0.25% (1,915 copies) of magazines were distributed in the UK.
o Question before the Court: Was the UK the correct forum for the case? [He sought to sue Forbes in the UK]
o Is there a sufficient link between the harm and the territory? Question about the ability of states to take cases
potentially not in their jurisdiction?
- Lord Steyn:
o The present case is a […] multi-jurisdictional case. It is also a case in which all the constituent elements of the torts
occurred in England. The distribution in England of the defamatory material was significant. And the plaintiffs have
reputations in England to protect. In such cases it is not unfair that the foreign publisher should be sued here.
- We have this problem - if courts accept jurisdiction due to torts being sufficient = a problem, because all courts could do it.
o Now, imagine this in a digital example.
Dow Jones v Jameel, Jameel [Yousef] v Dow Jones & Co. Inc. [2005] EWCA Civ 75:
- Someone should be able to sue all over the world
- Problem for content providers - their liability goes from where they’ve distributed public material to everywhere it has spread
on the internet
- The multiple publication rule
- Courts recognised this- so developed a threshold of the harm that needed to be suffered before the courts get involved.
- Facts of the case:
o ‘The WSJ obtained secret documents regarding al Qaeda, including a ‘Golden Chain’ document which listed 20
alleged Saudi financial backers of Osama Bin Laden, including Mr. Jameel. The WSJ published a story on its
website with a link to the 20 names.
Jameel argued that this would harm his reputation- therefore valid for defamation.
If they applied the Berezovsky test, then the English courts would be able to take the case, but court
recognised the risk of litigation pile on. Dug into the detail- how often had the content been accessed in the
UK?
6,000 subscribers to website in England and Wales, 5 subscribers had clicked on the hyperlink (3
of whom were known to the Court [lawyers]) This publication only met 2 people.
- Lord Phillips MR:
o It would be an abuse of process to continue to commit the resources of the English court, including substantial judge
and possibly jury time, to an action where so little is now seen to be at stake.
o De minimis rule
Two strands in the case law:
Single v multiple publication:
- Tension arose because of digitisation
- ‘Result: Ministry of Justice consultation paper Defamation and the internet: the multiple publication rule
