Internet law. Cyberspace: the legal frontier
5 June 1997
Law is developing rapidly in an effort to keep pace with the Internet. In cyberspace, defamation, international treaties, US Supreme Court cases, copyright infringement by "hot-linked" Web sites, and European green papers, are just a part of the legal minefield waiting to explode.
The Internet evolved from an academic and military network which was also accessible to computer enthusiasts, and is now increasingly used for commercial purposes. Many businesses, including law firms, have Internet Web sites which they use as virtual reception areas, and in some cases, as a means of transacting business.
The Internet is international and multijurisdictional. It is capable of transmitting digital material that can be manipulated by the recipient and reproduced in a manner indistinguishable from the original.
It facilitates the distribution of works to vast audiences in seconds, as well as the infringement of the intellectual property rights of the works' authors.
The Internet is, in a sense, anarchic. Messages are split into packets of digital material and routed separately to their destination. It is not controlled by any one organisation, and efforts by large computer manufacturers and software licensers to create proprietary networks that compete with it have failed.
The organisations that are closest to the operation of the Internet are the Internet service providers, which, for most businesses, provide access to it. The question is whether they should accept legal responsibility for material held on their systems that infringes copyright or is defamatory.
Legal minds are working to address these issues. The World Intellectual Property Organisation (Wipo) agreed two treaties in December 1996, the Wipo Copyright Treaty and the Wipo Performances and Phonographs Treaty. These assist authors of copyright works and the performers and producers of phonograms by providing them with the exclusive right to authorise any communication to the public of their work "by wire or wireless means, including making available to the public their works in such a way that members of the public may access these works from a place and at a time individually chosen by them".
Although it will take some time for these treaties to be implemented globally, they lay a useful foundation for material copyright law development. Some delegates would like to have gone further and protected the act of transmission of digital material under copyright law. Information contained on databases will be the subject of a further Wipo treaty.
On the subject of copyright, the Scottish case Shetland Times Limited v Jonathan (1997) held that the inclusion of the headlines of one newspaper on the web site of another was infringement of the copyright of the original newspaper. In this case, the headlines were hot-linked to the full text of the material which appeared on the Shetland Times' Web site.
A hot-link is a means of moving from one site to another. By clicking on an icon (or headline or word) on the first site, the user is taken straight to the full text at the second site, by-passing its front page. So in this case, because of the direct route into the page, the presence of the links was ruled to have watered-down the economic benefit the Shetland Times obtained from its copyright material.
One of the great attributes of the Internet is the vast amount of information it makes available to anyone with a computer, a modem and a provider. Some would argue that all such information should be freely available. Maybe in the early days of the Internet, such an argument could be justified. These days, businesses - whether publishers, software houses or law firms - are seeking to reap economic benefits from the publication of their material on the Net and, increasingly, they will seek the protection of copyright laws.
Cyberspace defamation is also being looked into. Material accessible on the Net could be defamatory, and there have been cases alleging Internet libel in countries including the US, UK and Australia.
The question is whether Internet service providers could or should be liable for defamatory comments held on their machines. They are likely to be more substantial organisations than the individuals posting defamatory comments, but they argue that they are not publishers of the material, but are merely intermediaries facilitating communication. In the UK, the Defamation Act 1986 provides a statutory defence of innocent dissemination for organisations such as providers.
Pornography is another concern. The European Commission has issued green papers on illegal content on the Net and on the protection of minors and human dignity in audio-visual and information services. In the US, the Communications Decency Act 1986 was enacted with the intention of regulating the dissemination of indecent material via the Internet.
However, the American Civil Liberties Union and others have challenged this, so far successfully, through the US courts, as a breach of the US Constitution, which guarantees freedom of expression. The essential argument seems to be that the Communications Decency Act goes further with reference to Internet communications than it does with reference to other electronic communications, such as the telephone.
More national and international legislation is needed to regulate the Internet. At the same time, the opportunities it provides need to be preserved. It is this delicate balance which regulators and lawyers need to strike.