Legal Pluralism and the Adjudication of Internet Disputes

No single entity-academic, corporate, governmental or non-profit-administers the Internet. (American Civil Liberties Union v Reno \[E.D. Pa. 1996] 929 F. Supp. 824, 832) The problems of regulation on the Internet are simply stated. First, it allows novel activities: e-mail, electronic discussion groups, simple transfer or viewing of text, images, sound and video. These activities may fall foul of laws of obscenity or defamation in some or all of the jurisdictions in which it is available. Second, the Internet is a distributed system that straddles geographical and jurisdictional boundaries; the regulation of such activities is likely to fall within two or more national 'legal' jurisdictions. It may therefore be difficult to choose an appropriate jurisdiction. Third, the inevitable need to choose a jurisdiction will mean that the values to be imposed upon the dispute will be the values of that jurisdiction, values that may be different from the values of those involved in the dispute. Much has been written on the first two problems and significant developments have been made in the formulation of principles to be applied to the problem of choosing a jurisdiction. In this paper, I will begin to focus on the third problem, the problem of inappropriate values being imposed upon Internet behaviour. The paper will develop the theme that the need for a single jurisdiction and, in consequence, the need for a single set of values to be imposed upon Internet activities is a fiction born out of centralist systems of western jurisprudence. The paper will review how courts have turned against pluralistic approaches in the past when dealing with clashes in cultural and religious values, particularly the clash in the English courts in the case of Salman Rushdie's 'The Satanic Verses'. Western courts have been dismissive of cultural and religious claims either treating them as 'repugnant' or contrary to public policy, or else questioning the validity of the motives of the applicants. It is evident from recent cases in the US, that judges will use similar techniques to impose their own value values upon Internet activity. The concept of legal pluralism is not recognised within westernised systems of law. The paper will then consider whether a more pluralistic strategy would provide a more satisfactory approach to dealing with such disputes on the Internet: an approach that would enable the resolution of the conflict between different cultural and religious values.