Lawyers' definitions of the internet: are they consistent?
27 November 2000
4 April 2014
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21 July 2014
Every day law firms have to deal with the internet. Barely a client comes through the door without having a business that is not facing up to the challenges of the network effect. Whether the casework involves a clear-cut internet issue such as virtual intellectual property, online rights, dotcom takeovers or libel, or is a more traditional legal issue taking place in a new networked e-conomy, working lawyers have to provide their clients and themselves with a working definition. For some the safest territory is a technological determinism. All of the firms that replied to The Lawyer put the technology up front as a clear determinant of what is specific about the internet. The protocols or ways in which the networks work (TCP/IP) can indeed delimit this particular technology. Although, as some of the more expansive accounts make clear, this protocol - while underpinning the existing internet and its most public manifestation, the web - is not the only player in town. Other technological infrastructures - notably in digital television and other wireless services, increasingly important players in convergent networks - use other systems.
Technology, once you get behind the jargon, is a fairly safe bet for definitions and working practices. Simmons & Simmons' response to The Lawyer begins with a straightforward techno-legal definition, which Alexander Brown then goes on to qualify with a discourse on the (technological) distinction between the internet and the web. Of course, while this distinction is crucial at the moment, the web is a passing manifestation of the internet, which in turn is but one manifestation of networked communications.
These technological definitions, whether abbreviated (Richard Kemp, Kemp & Co), common-sense (Christopher Millard, Clifford Chance) or even ones with many subclauses (Justin Walkey, Bird & Bird), remain problematic because they are doomed to always be one technological step behind. Furthermore, the technology is often seen in value-neutral terms rather than as fundamentally political-economic in nature.
In an effort to take this on board, some firms overlay their technological determinism with other factors. Baker & McKenzie's Robbie Downing separates the "techie" from the "business" and the "public". Although his distinction is clearly designed to help the average legal journalist, his delimiting of the impact of the internet illustrates the ways in which firms are forced to seek to understand and combat the internet at different levels with their clients. For Downing, the technology is a given. This underpins great potential for business and the public, with the accompanying possible security fears.
Similarly, Linklaters & Alliance's Graeme Maguire sees the internet as a "medium which allows" the movement and convergence of content. This acceptance of a value-neutral and almost inert technology as just another medium or channel for communication and business, while allowing an upbeat pitch to clients, fundamentally underplays how network e-conomies and relationships reorder power, commerce and potentially legal relations. Clearly, Maguire believes his clients want to know what the internet "means", but then he brings down the full power of that meaning to a matter of bandwidth and service delivery, rather than a fundamental reassessment of their relations to their customers and the market.
Firms, then, are realising that their clients are changing. Michael Chissick of Field Fisher Waterhouse traces how the sort of clients who need to talk about the internet has shifted. While the language he uses in these conversations is more flexible and wide-ranging than some of his competitors', he notably categorises the internet as "just one of several new channels" that his clients could use or could have legal issues with. On one level this is true. A client's communication across TCP/IP networks can be equated and treated legally in the same way as a print medium. But what cannot be equated are the ways in which those communications spin out of control, enter and disturb spaces and create and destroy power relations - the very things that a client often turns to their lawyer to look after.
There is a hint of this in the response from Clifford Chance. Christopher Millard's choice of the words "transcend", "challenge", and particularly "disruptive", hint at some of the fundamental reassessments that networks bring in. Perhaps it has been the experience of trying to create and control its own network effect that has made Clifford Chance's lawyers come up with a more flexible and less reassuring definition.