Cyberlaw Coursework 1, 2021
CYBERLAW
COURSEWORK
Cyberspace can be described as a physical state of information operating through the
internet. The nature of the internet has evolved to support communication system
networks that continue to grow and connect billions of people worldwide. Such
connectivity has also delivered a platform where people can employ freedom of speech
in ways that can harm others. Net neutrality principles underpin new laws to regulate
cyberspace; however, these are criticised as favouring the free market. Lessig explains
in his book, Code 2.0, that regulation of the internet would abolish undesired behaviour
in cyberspace. However, there are inconsistencies in Lessig’s code in relation to public
values, democracy, self-regulation, and discrepancies in the law. This paper will discuss
Lessig’s statement that ‘cyberspace will become a perfect tool for control’, referencing
cyberlibertarian and cyberpaternalist views on how the internet is regulated.1 It will
discuss the views of different academics in relation to Lessig’s thesis on regulating
cyberspace. Potential tools for the regulation of cyberspace are explored and assessed,
and a synopsis is presented identifying the regulatory measure with the most persuasive
argument. The most crucial understanding of Lessig’s 4 modalities is that the nature of
code defines the protocols to ensure that cyberspace reaches its full potential by guiding
user behaviour, however, Code eliminates the choice or regulation for internet users,2
suggesting that the code is the only way to maintain cyberspace.
The Criminal Justice and Immigration Act 2008 3, criminalises possession of images of
sexual violence in the UK, while law enforcement no longer prosecutes users for viewing
inappropriate content under the Obscene Publications Act 1959.4 However, the Criminal
1 Lawrence Lessig, Code (2nd edn, Basic Books 2008)
2 Ibid, 39.
3 s63(a)
4 s2(b)
1
, Cyberlaw Coursework 1, 2021
Justice and Immigration Act 2008 suggests an intention to limit the scope of extreme
pornographic images on the internet in the UK, also illustrating how the law limits societal
changes. This perhaps indicates why the failure to introduce mandatory digital rights
management systems would have left internet users to decide the online content to be
regulated. As Sunstein notes, UK society has numerous overlapping micro-communities,
and this leaves injustice at a disadvantage.5 However, the government’s position on
freedom of expression in cyberspace has been balanced against harmful breaches of
other rights, such as the right to privacy under the Public Order Act 1986, s 4(a), which
criminalises the use of abusive words online.6 This issue arises in S v CPS, which
questions whether the abusive material caused the victim distress and illustrates how
difficult it can be to prove who was responsible for posting abusive material online.7 The
Council of Europe Convention on Cybercrime aims to regulate offensive material online,
binding international treaties together so that one law applies to all. 8 However, one of the
biggest potential threats to internet regulation is arguably freedom of expression. As
technology develops, the distribution of information has become increasingly out of step
with existing laws and has placed complexities on freedom of speech.
Technology regulation should have a broader scope to address and improve global
democratic deficits of the internet and clarify what constitutes hate speech in the online
context.9 Ben Wagner states that international treaties like the Cybercrime Convention
provide a definition of principles relating to freedom of expression on the internet. 10
However, internet freedom should be part of foreign policy with set punishments for
wrongful freedom of expression and clarification of freedom of speech using a ‘human-
5 s Michel JG van Eeten and Milton Mueller, 'Where Is the Governance In Internet Governance?' (2012)
New Media & Society. 15
6 Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks
against information systems and replacing Council Framework Decision 2005/222/JHA (2013) OJ L218, 8
7 'Online Harms, White Paper' (Assets.publishing.service.gov.uk, 2019)
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9739
39/Online_Harms_White_Paper_V2.pdf> accessed 1 November 2021.
8 Convention on Cybercrime (2010) ETS No 185
9 Michael Kirby, ‘The Fundamental Problem of Regulating Technology’ (1sr edn, ANU E Press 2013) 49
10'Graham, Mark --- "There Are No Rights ‘In’ Cyberspace" [2019] ELECD 32; In Wagner, Ben;
Kettemann, C. Matthias; Vieth, Kilian (Eds), "Research Handbook On Human Rights And Digital
Technology" (Edward Elgar Publishing, 2019) 24' (Www5.austlii.edu.au, 2021)
<http://www5.austlii.edu.au/au/journals/ELECD/2019/32.html> accessed 2 November 2021.
2
CYBERLAW
COURSEWORK
Cyberspace can be described as a physical state of information operating through the
internet. The nature of the internet has evolved to support communication system
networks that continue to grow and connect billions of people worldwide. Such
connectivity has also delivered a platform where people can employ freedom of speech
in ways that can harm others. Net neutrality principles underpin new laws to regulate
cyberspace; however, these are criticised as favouring the free market. Lessig explains
in his book, Code 2.0, that regulation of the internet would abolish undesired behaviour
in cyberspace. However, there are inconsistencies in Lessig’s code in relation to public
values, democracy, self-regulation, and discrepancies in the law. This paper will discuss
Lessig’s statement that ‘cyberspace will become a perfect tool for control’, referencing
cyberlibertarian and cyberpaternalist views on how the internet is regulated.1 It will
discuss the views of different academics in relation to Lessig’s thesis on regulating
cyberspace. Potential tools for the regulation of cyberspace are explored and assessed,
and a synopsis is presented identifying the regulatory measure with the most persuasive
argument. The most crucial understanding of Lessig’s 4 modalities is that the nature of
code defines the protocols to ensure that cyberspace reaches its full potential by guiding
user behaviour, however, Code eliminates the choice or regulation for internet users,2
suggesting that the code is the only way to maintain cyberspace.
The Criminal Justice and Immigration Act 2008 3, criminalises possession of images of
sexual violence in the UK, while law enforcement no longer prosecutes users for viewing
inappropriate content under the Obscene Publications Act 1959.4 However, the Criminal
1 Lawrence Lessig, Code (2nd edn, Basic Books 2008)
2 Ibid, 39.
3 s63(a)
4 s2(b)
1
, Cyberlaw Coursework 1, 2021
Justice and Immigration Act 2008 suggests an intention to limit the scope of extreme
pornographic images on the internet in the UK, also illustrating how the law limits societal
changes. This perhaps indicates why the failure to introduce mandatory digital rights
management systems would have left internet users to decide the online content to be
regulated. As Sunstein notes, UK society has numerous overlapping micro-communities,
and this leaves injustice at a disadvantage.5 However, the government’s position on
freedom of expression in cyberspace has been balanced against harmful breaches of
other rights, such as the right to privacy under the Public Order Act 1986, s 4(a), which
criminalises the use of abusive words online.6 This issue arises in S v CPS, which
questions whether the abusive material caused the victim distress and illustrates how
difficult it can be to prove who was responsible for posting abusive material online.7 The
Council of Europe Convention on Cybercrime aims to regulate offensive material online,
binding international treaties together so that one law applies to all. 8 However, one of the
biggest potential threats to internet regulation is arguably freedom of expression. As
technology develops, the distribution of information has become increasingly out of step
with existing laws and has placed complexities on freedom of speech.
Technology regulation should have a broader scope to address and improve global
democratic deficits of the internet and clarify what constitutes hate speech in the online
context.9 Ben Wagner states that international treaties like the Cybercrime Convention
provide a definition of principles relating to freedom of expression on the internet. 10
However, internet freedom should be part of foreign policy with set punishments for
wrongful freedom of expression and clarification of freedom of speech using a ‘human-
5 s Michel JG van Eeten and Milton Mueller, 'Where Is the Governance In Internet Governance?' (2012)
New Media & Society. 15
6 Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks
against information systems and replacing Council Framework Decision 2005/222/JHA (2013) OJ L218, 8
7 'Online Harms, White Paper' (Assets.publishing.service.gov.uk, 2019)
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9739
39/Online_Harms_White_Paper_V2.pdf> accessed 1 November 2021.
8 Convention on Cybercrime (2010) ETS No 185
9 Michael Kirby, ‘The Fundamental Problem of Regulating Technology’ (1sr edn, ANU E Press 2013) 49
10'Graham, Mark --- "There Are No Rights ‘In’ Cyberspace" [2019] ELECD 32; In Wagner, Ben;
Kettemann, C. Matthias; Vieth, Kilian (Eds), "Research Handbook On Human Rights And Digital
Technology" (Edward Elgar Publishing, 2019) 24' (Www5.austlii.edu.au, 2021)
<http://www5.austlii.edu.au/au/journals/ELECD/2019/32.html> accessed 2 November 2021.
2
