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Why judges need jurisprudence in cyberspace
Published online by Cambridge University Press: 25 June 2018
Abstract
Judges are increasingly asked to decide whether a rule of national law is applicable to a cyberspace actor who is not present in their jurisdiction, or whose activities do not clearly fall within the established understanding of the rule. They do this through interpreting the applicability and meaning of the law.
Every attempt to enforce a national law makes a claim that the law has authority over the cyberspace actor. By accepting that claim, the judge asserts that the law's claim is legitimate. This is a Hartian exercise, adopting the internal view of the national legal system as the test for legitimacy.
But in cyberspace the legitimacy of a national law claim is determined not by the internal perspective of the legal system but by the external perspective of cyberspace actors. A law will only have authority in cyberspace if it can convince cyberspace actors that its claim is legitimate. And a legal system which repeatedly makes illegitimate claims thereby weakens its status as a system which adheres to the rule of law.
Judges can help solve this problem by interpreting laws and applying public and private international law so as to reject applicability claims which are illegitimate. To do this successfully, they need to understand the jurisprudential foundations of any law's authority in cyberspace.
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- Copyright © The Author 2018. Published by The Society of Legal Scholars
References
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30 To give some idea of the level of detailed lawmaking, in Release 6 of May 2016 the Glossary alone ran to 538 pages. The Conduct of Business Sourcebook section (a small part of the whole) was 522 pages long. The full Handbook amounts to many thousands of pages and is constantly growing in size. Each part of the Handbook contains cross-references to other parts, so that a full understanding of any part requires some mastery of the whole.
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36 The International Association of Privacy Professionals has more than 12,000 members in 78 countries (https://www.privacyassociation.org/about_iapp) and accreditation for data protection professionals has been introduced (eg the British Computer Society's Certificate in Data Protection, http://certifications.bcs.org/content/conCertification/8). Most, perhaps all, organisations of any size recognise the need to employ such professionals to assist them in complying with the law, and Art 37 of the Regulation will require all enterprises which engage in large-scale processing of personal data to appoint such a person.
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38 Ibid, para 47.
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41 Moberg, above n 39, at 420.
42 17 USC §410(c), at §412.
43 ‘We will not ascribe bad faith to Plaintiff for failing to seek registration earlier in the case. Plaintiff made a calculated decision not to do so even though the issue was contested. Plaintiff's decision to hedge its bet supports our conclusion that Plaintiff has not met the good cause standard … for a tardy amendment of the pleadings’: Kernal Records, above n 40, at 1370.
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48 In Lindqvist the web page was hosted on a server in Sweden, and it seems likely that the court would have decided that an export occurred had the server been situated outside the EEA. Although Facebook adheres to the US Privacy Shield (see https://www.facebook.com/about/privacyshield) its Data Policy (see https://www.facebook.com/policy.php) is unclear about whether information uploaded by users falls within the scope of the Privacy Shield.
49 Defined in Data Protection Directive, above n 24, Art 8 as ‘personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and … data concerning health or sex life’. See now GDPR, above n 35, Art 9, replacing the concept of sensitive data with ‘special categories of personal data’.
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53 See eg Gutnick v Dow Jones [2002] HCA 56.
54 First enunciated in the Bonn Ministerial Conference Declaration of 6–8 July 1997, which declared in its principle 22:
Ministers stress that the general legal frameworks should be applied on-line as they are off-line. In view of the speed at which new technologies are developing, they will strive to frame regulations which are technology-neutral, whilst bearing in mind the need to avoid unnecessary regulation: http://europa.eu.int/ISPO/bonn/Min_declaration/i_finalen.html.
55 See eg Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Principles and guidelines for the Community's audiovisual policy in the digital age COM (1999) 0657 final, note 17: ‘identical services should in principle be regulated in the same way, regardless of their means of transmission’.
56 See further Reed, above n 45, ch 7, ‘Transposing offline legal norms to cyberspace’.
57 A well-documented example is the degree of aggression and casual abuse that many users of online discussion sites engage in, which they would not show in face-to-face conversations. See A Sengupta and A Chaudhuri ‘Are social networking sites a source of online harassment for teens? Evidence from survey data’, NET Institute Working Paper #08-17 (September 2008, http://www.NETinst.org); T Byron SaferChildren in a Digital World: Report of the Byron Review (2008) para 3.63 (http://www.dcsf.gov.uk/byronreview/).
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59 It is worth noting that these judges had alternative conceptions available within the existing offline rules, such as conceptualising ISPs and content hosts as mere distributors whose liability would depend on knowledge of the content.
60 For an example from the UK, see Godfrey v Demon Internet Ltd [1999] 4 All ER 342, though in that case the claim was carefully drafted to apply only to publication which occurred subsequent to the defendant receiving notice of the presence of the defamatory material in a newsgroup which it hosted.
61 See eg the judgment of Kirby J in Gutnick v Dow Jones [2002] HCA 56, at paras 164–166.
62 47 USC § 230.
63 929 F Supp 824 at 830–838 (ED Pa, 1996), affirmed 117 S Ct 2329 (1997).
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70 Ibid, at 543.
71 17 USC §512.
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73 Each minute, 400 hours of video are uploaded to YouTube – https://www.blog.google/topics/google-europe/improving-our-brand-safety-controls/.
74 572 F Supp 2d 1150 (ND Cal 2008).
75 17 USC §107.
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77 Capitol Records v MP3Tunes 611 F Supp 2d 342 at 345 (SDNY 2009).
78 Disney Enterprises v Hotfile 2013 WL 6336286 (SD Fla 2013).
79 ‘We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA's requirements to somehow consider fair use’: 801 F 3d 1126 at 1135 (9th Cir 2015).
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82 Thus in 2014 a stop-motion video by a child using Lego figures received a Facebook notice which gave no details at all about the rights which were allegedly infringed – https://ip-appeals.com/take-down-abuse-from-harry-potter-to-legos/.
83 Ligeri v Google, Complaint CA15-188M (District of Rhode Island 2015) – http://digitalcommons.law.scu.edu/historical/959/.
84 Murray, A ‘Looking back at the law of the horse: why cyberlaw and the rule of law are important’ (2013) 10 SCRIPTed 310CrossRefGoogle Scholar. I am delighted to acknowledge this article as the inspiration for the line of inquiry set out in this piece.
85 Ibid, at 317–319.