The law in Cyberspace
Around the world, and particularly in the United States, a new and expanding body of Internet law and jurisprudence is beginning to address some of the legal implications of establishing an on-line presence. Current legal issues which are being addressed in courts and by legislatures around the world include –
trade mark issues as well as “domain name” disputes;
privacy and related issues, such as accessing e-mail at the workplace;
obscenity and pornography issues;
defamation in cyberspace.
These kinds of disputes relate to specific areas of the law, and while they may assume greater complexity in the context of the Internet, they are arguably the same types of disputes that exist in traditional commerce. Courts and legislatures are generally dealing with these kinds of disputes by applying or evolving traditional legal concepts.
For example, Canada’s government has declared in a new report, The Internet Content-Related Liability Study, that no “massive legislative intervention” is needed when applying the country’s existing laws to the Internet. The report concludes that most of the provisions in its existing laws concerning obscenity, child pornography, hate speech, and trade mark infringement automatically apply to the Internet. The same approach has been taken in a number of other jurisdictions.
The borderless nature of the Internet
However, we submit that there are certain critical legal issues which cannot easily be resolved by applying traditional legal principles.
These critical issues stem from the borderless nature of cyberspace, which enables a website to reach potentially millions of users all over the world at the same time, regardless of where the actual website is set up. This has given rise to probably the most far reaching issue currently being debated, namely, whether it is possible to enforce laws against a defendant residing beyond a court’s territorial boundaries, based on conduct which takes place on-line.
Other legal concepts which operate, by their very nature, with reference to geographical boundaries (such as source based taxation) are also affected by the seamless nature of the WWW and need to be re-evaluated in this context.
Contracting on the Internet is another area in which the law needs to be evolved to keep up with new technology. The Internet allows contractual negotiations to take place electronically between parties on different sides of the globe. Moreover, it is conceivable for an entire commercial transaction to be concluded electronically and performed without the parties ever seeing each other. The absence of traditional face to face meetings and handwritten signatures to contractual documentation creates, among other things, uncertainty as to the enforceability of the contract. To cater for this, the development of digital or electronic signatures is well under way. The law needs to acknowledge this technology and make provision, for example, for electronic or digital signatures on electronic communications to be recognised in law.
Directors, executives, service providers and Internet users in general need to ensure that whilst they take advantage of all that the Internet has to offer, they do not find themselves on the wrong side of the law.
To do this, we need to develop a basic understanding of some of the material legal issues involved and to keep abreast of the law in this area.