Policing the Internet
28 November 1995
There has been no shortage of speculation regarding the social and economic implications of the explosive growth of on-line services and the Internet. Much of the comment is ill-informed, analytically weak, or both.
Confusion is perhaps inevitable given that most people watching or reading media reports on the subject will never have used any type of on-line service.
At times it seems that some of the reporters have not had much direct exposure to cyberspace either. Predictions of massive economic and social upheaval are usually accompanied by observations that the on-line world in general, and the Internet in particular, is anarchic and unregulated.
Whatever the impact on business and society of these new communications media, the assumption that there is "no regulation" of the sector is manifestly false.
On the contrary, the laws of some 200 countries regulating such diverse subjects as intellectual property, fraud, defamation, pornography, insurance, banking, financial services and tax simultaneously apply to online activities.
Far from being a haven from regulation, it is more accurate to say that there has never been a field of business and social activity more regulated than on-line services and the Internet. Indeed, many of the laws and regulations which apply to on-line activities may seem inappropriate and in practical terms may prove to be difficult or impossible to enforce.
The appearance of anarchy may stem from a tendency by players already in the market to view on-line regulatory compliance as so complex and uncertain that in business terms it is preferable to continue to make money now and wait to be sued or prosecuted in the future.
This attitude is, however, likely to change as both civil and criminal enforcement activities gain a significant profile.
The New York defamation action against Prodigy earlier this year and various current investigations on both sides of the Atlantic into alleged breaches of banking and financial services regulations are now forcing the major players in the on-line business, and their customers, to take legal and regulatory risks seriously Much of the confusion stems from the fact that, in legal terms, the Internet is not a single thing or person.
The Internet as we know it is not a discrete computer network nor is it an information service. Rather it is a vast web of networks each owned and operated by different people.
This network of networks carries content generated by millions of users. Each of these participants plays some role in making the Internet what it is and each is likely to operate with little detailed knowledge of or control over the actions of the others.
The Internet is the sum of all these disparate parts.
The fact that no single person or organisation owns or controls the Internet has some interesting legal consequences.
The most obvious of which is that if you suffer harm due to something which has happened on the Internet there is no single person against whom you can bring legal action for redress.
There is no Internet Inc or Internet plc which can be sued for damages or be enjoined from further action.
Determining how existing laws and regulations apply to the on-line world is undoubtedly a challenge.The key is to focus on actors, actions, and legally significant relationships. Saying that an event has taken place on the Internet does not advance the analysis at all.
Rather, someone somewhere will have directed information to be transmitted or will have made that information available for retrieval.
The information will probably have been handled by a variety of service providers and have been transmitted via a physical infrastructure made available by a number of national and international network operators.
Having identified the various actors and actions, the impact of existing laws and regulations can be assessed. In many cases it will be clear who, if anyone, should be held liable for a particular breach of contract, tort or criminal offence.
Significant uncertainties may still arise, however, due to conflicts of laws issues, evidentiary problems and practical enforcement difficulties.
Moreover, from a legal compliance perspective, it may be difficult or even impossible for a reputable organisation to carry out certain commercial activities, such as advertising and selling goods or services via the Internet, without the risk of committing criminal offences in some if not many jurisdictions.
Highly regulated areas such as consumer transactions and financial services are particularly problematic.
It has been suggested that all such problems could be swept away by an international treaty on 'Law of the Internet'. This is wishful thinking. As the European Commission has found, it is difficult enough to get 15 countries with a supposedly common vision to harmonise very specific areas of law. What is the likelihood of some 200 countries agreeing to harmonise a broad range of civil and criminal laws, many of which address fundamental issues of public policy?
A more promising, though still ambitious, goal would be to establish an Internet treaty dealing only with applicable law in relation to on-line activities. In the meantime, the best we can hope for is that legislators, regulators and courts will, on an ad hoc basis, develop common sense rules to determine how behaviour in cyberspace should be governed.
The proposals currently before the UK Parliament to clarify the law relating to on-line defamation are a good example of a manageable and focused approach.