Weaving the Mesh: Finding Remedies in Cyberspace

Abstract

This paper will categorise cyberspace as a microcosm of Darwinistic evolution, tracing the organic growth that has resulted in the increasingly tangled web of rules that today stretches throughout the on-line world. This evolution has produced a complementarity and interdependence between private and state regulation in a manner that will probably long affect current and future trends in the governance of cyberspace. The paper concludes that, while rule systems will continue to converge, the driving force will remain the perennial search to provide remedies to the needs of clients. The latter drive for real-time remedies for real problems will probably produce workable rule-systems faster because they are pushed by the needs of millions of customers operating within the context of on-line market economics. This is in direct contrast to the development of formal rules for Internet governance by states. Lawyers need practical solutions for their clients and this paper identifies a number of private international law problems that will increasingly dominate public law issues in cyberlaw.

Notes

In part this paper is based on research and writing presented in J P Mifsud Bonnici ‘Self-regulation in Cyberspace’, Unpublished PhD dissertation, University of Groningen, The Netherlands (2006) and in part on ‘Weaving the mesh: finding remedies in cyberspace’ a joint work presented by the authors at the BILETA 2006 conference.

1. J P Barlow ‘A declaration of the independence of cyberspace’ Electronic Frontier Foundation, 1996, was among the most notorious and vociferous proponents of this position, available at http://www.eff.org/barlow (accessed 20 October 2001).

2. The latest in the series is J Goldsmith and T. Wu Who Controls the Internet? Illusions of a Borderless World Oxford University Press, Oxford, 2006.

3. Amtsgerict München, Bavaria v Felix Bruno Somm, File No.:8340 Ds 465 Js 173158/95.

4. For a detailed evaluation on the effect of the Somm case, see U Sieber ‘Responsibility of Internet providers: comparative analysis of a basic question of information law’ in E Lederman and R Shapira (eds) Law, Information and Information Technology Kluwer Law International, Dordrecht, 2001, pp 235, 237–239.

5. Cf J P Mifsud Bonnici ‘Internet service providers and self-regulation: a process to limit Internet service providers liability in cyberspace’ in H A M Weyers and J N Stamhuis (eds) Zelfregulering Elsevier, Amsterdam, 2003.

6. http://www.ispa.org.uk.

7. Godfrey v Demon Internet Ltd, 26 March 1999, per Morland J 2001 QB 201 QBD.

8. See for example, UK Law Commission Report ‘Defamation and the Internet—a preliminary investigation’ 2002, available at http://www.lawcom.gov.uk/files/defamation2.pdf (accessed 20 November 2001).

9. Council of Europe Convention on Cybercrime (ETS No. 185) opened for signature in Budapest, Hungary on 23 November 2001 and came into force on 1 July 2004 (found at http://conventions.coe.int/Treaty/en/treaties/html/185.htm).

10. See Goldsmith and Wu, op cit, note 2, p 134.

11. European businesses alone estimate that more than €2.1 billion are lost every year to lost productivity as a result of unwanted content. See J L Schenker ‘EU readies new tools in fight against Spam’ International Herald Tribune 26 January 2004; Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or ‘spam’. (COM(2004) 28 Final 22 January 2004) (in particular pp 1–7).

12. See for example, article 1.3 of Western Australian Internet Association WAIA spam code at http://www.waia.asn.au/info/spamcode.shtml (accessed 26 April 2005). This code was developed in August 2002 before the enactment of the Australian ‘Spam Act’ in 2003 (ibid, accessed 27 April 2005).

13. See ibid, for example articles 2–4 in Western Australian Internet Association Spam Code of Conduct (accessed 27 April 2005).

14. The deadline for implementing the Directive was 31 October 2003. Infringement proceedings have been instituted against Member States who have not notified the Commission of the transposition of the Directive into national legislation.

15. OECD Directorate for Science, Technology and Industry, Background paper for the OECD Workshop on Spam, Doc Reference: DSTI/ICCP(2003)10/FINAL dated 22 January 2004, p 20.

16. Canada, Czech Republic and Mexico.

17. I Kerr, A Maurushat and C S Tacit ‘Technical protection measures, Part 1: Trends in technical protection measures and circumvention technologies’ 2002; Report prepared for Canadian Heritage http://www.canadianheritage.gc.ca/progs/ac-ca/progs/pda-cpb/pubs/protection/protection_e.pdf (accessed 19 August 2004) pp 1–2.

18. Napster was one of the first online music sharing software. Its technology allowed music fans to easily share and download music. The music industry alleged that this software allowed for massive infringement of copyright and sued Napster for damages. The originality of this case found courts and states legally unprepared, even if ultimately the courts managed to adapt existing legislation to the case. (More information at http://en.wikipedia.org/wiki/Napster.)

19. http://thomas.loc.gov/cgi-bin/query/F?c105:1:./temp/∼c1058HT6FY:e884: (accessed 15 April 2005).

20. The Copyright Treaty was adopted by the WIPO member states in December 1996 (found at http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html).

21. This is claimed in all case files by the Recording Industry Association of America (RIAA) in the USA and similar organisations worldwide against alleged copyright infringers.

22. Cf J S Svensson and F Bannister ‘Pirates, sharks and moral crusaders: social control in peer-to-peer networks’, First Monday 4 June 2004, available at http://www.firstmonday.org/issues/issue9_6/svenssion/index.html (accessed 14 April 2005).

23. Vincent Tilman, Presentation on ECODIR at the ‘Building Trust in the Online Environment: Business to Consumer Dispute Resolution’ Joint Conference of the OECD, HCOPIL, ICC held 11–12 December 2000, available at http://www.oecd.org/ (accessed 13 July 2004).

24. T Schultz ‘Online arbitration: binding or non-binding?’ ADR Online Monthly November 2002, available at http://www.ombuds.org/center/adr2002-11-schultz.html (accessed 19 July 2004).

25. T Fenoulhet ‘La Co-Régulation: une piste pour la régulation de la société de l'information?’ Dossier Droit et Nouvelles Technologies, 2002, available at http://www.droit-technologie.org (accessed 10 January 2003) p 2.

26. 16 cases.

27. K M Manheim and L B Solum ‘An economic analysis of domain name policy’ Hastings Communications and Entertainment Law Journal Vol 25, p 367, 2003.

28. G J H Smith Internet Law and Regulation Sweet & Maxwell, London, 2002, p 78.

29. US Anticybersquatting Consumer Protection Act (1999).

30. John Selby ‘Provider selection under the ICANN UDRP: an analysis whether ICANN's original goals are being achieved’ Computer und Recht International No 5, p 133, 2003.

31. .aero, .biz, .coop, .info, .museum, .name, .pro.

32. There are five approved dispute-resolution providers: (i) Asian Domain Name Dispute Resolution Centre (ADNRC) (approved since 28 February 2002); (ii) CPR Institute for Dispute resolution (approved since 22 May 2000); (iii) eResolution (approved 1 January 2000 and not accepting proceedings since 30 November 2001); (iv) The National Arbitration Forum (approved since 23 December 1999); and (v) World Intellectual Property Organisation (WIPO) (approved since 1 December 1999).

33. As of 10 May 2004 (that is, in a period of four years) 9377 proceedings involving 15,710 domain names had been brought under the UDRP (see http://www.icann.org/udrp/proceedings-stat.htm accessed 6 August 2004) 6262 proceedings resulted in a transfer of the disputed domain name to the complainant or in a cancellation of the domain name. 1892 decisions found in favour of the respondent.

34. Cf US National Research Council of the National Academies ‘Signposts in cyberspace: the domain name system and Internet navigation’, 2005, available at http://www7.nationalacademies.org/cstb/dns_prepub.pdf (accessed 6 August 2005) pp 3–46 (subsequently published as US National Research Council of the National Academies Signposts in Cyberspace: The Domain Name System & Internet Navigation, National Academy Press, Washington, DC, 2005).

35. See for example WIPO ‘WIPO continues efforts to curb cybersquatting’ Press Release PR/2002/303, 26 February 2002, available at http://www.wipo.org/pressroom/en/release/2002/p303.htm (accessed 6 December 2004)—‘an expedited on-line dispute resolution service has been effective in dissuading Internet pirates from hijacking names'.

36. F Ost and M van de Kerchove ‘De la pyramide au réseau? Pour une théorie dialectique du droit’ Publications des Facultés universitaires Saint-Louis: Bruxelles, 2002.

37. See also T Schultz ‘La Régulation en réseau du cyberspace’ Revue Interdisciplinaire d'Études Juridique Vol 35 p 31, 2005, available at http://ssrn.com/abstract=899078 (accessed 5 April 2006) and Yves Poullet ‘Les aspects juridiques des systèmes d'information’ Lex Electronica Vol 10, No 3, 2006, available at http://www.lex-electronica.org/articles/v10-3/poullet.htm (accessed 2 May 2006).

38. The concept of ‘interdependence’ involves an explanation of reciprocal relationships between two separate entities—here self-regulation and state regulation. The reciprocal relationship is not a casual relationship but one of reciprocal dependence. The concept of ‘interdependence’ is used in the political science literature to explain power relationships in transnational issues (R O Keohane and J S Nye Power and Interdependence. World Politics in Transition (Little Brown, Boston, 1977) and R O Keohane and J S Nye ‘Power and interdependence in the information age’ Foreign Affairs Vol 77, No 5, pp. 81–94, 1998, and in the public policy literature (David Lazer ‘Regulatory interdependence and international governance’ Journal of European Public Policy Vol 8, No 3, pp 474–492, 2001) to explain the effect of a regulatory policy of one state on another in the regulation of transnational activities. In both areas of study, otherwise weak independent power (or regulatory) entities survive in transnational spaces because they develop interdependent relations between entities. Core conditions in the transnational space affect the space and consequently dictate interdependence between entities.

39. Lazer, op cit, note 38, identifies three forms of interdependence between regulatory policies of states in the regulation of international activities—competitive, coordinative and informational interdependence. From the cases of self-regulation described in this study, it is difficult to identify instances of ‘competitive interdependence’—that is, interdependence to resolve prisoner-dilemma situations.

40. Lazer (ibid) uses the same argument to explain interdependence in the regulatory policies between different states in the regulation of international problems.

41. Ibid.

42. The EU has financed many self-regulation initiatives under the Safer Internet Action Plan that has been running since 1999.

43. This was particularly evident in the training of hotline employees in the regulation of illegal Internet content.

44. C Knill and D Lehmkuhl ‘Private actors and the state: internationalization and changing patterns of governance. governance: an international journal of policy, administration, and institutions’ Vol 15, No 1, p 42, 2002; also J R Reidenberg, ‘Challenges to international law making: law and networks’ International Law FORUM du droit international Vol 6, No 1, pp 5–8, 2004, and P Ferdinand ‘Cyberpower: il solo potere di interferire?’ Concilium: rivista internazionale di teologia Vol 41, No 1, pp 36–46, 2005.

45. See Knill and Lehmkuhl, op cit, note 44, p 41.

46. A Burstein, W T de Vries and P S Menell ‘Foreword: the rise of Internet interest group politics’ Berkeley Technology Law Journal Vol 19, No 1, pp 1–20, 2004.

47. The situation of multiple authorities and multiple loyalties has led some authors (such as J Friedrichs ‘The meaning of new medievalism’ European Journal of International Relations Vol 7, pp 475–502, 2001) to develop a theory of neo-medievalism—using the situation pertaining in the Middle Ages as a model for current trends in regulation.

48. M Wolf Why Globalization Works Yale University Press, New Haven, CT, 2004.

49. Goldsmith and Wu, op cit, note 2, counter-argue that globalisation is influenced by regulatory practices.

50. For a discussion on the balance between states and group in lex mercatoria see A C Cutler Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy. Cambridge Studies in International Relations Cambridge University Press, Cambridge, 2003.

51. K Jayasuriya ‘Globalization and the changing architecture of the state: the regulatory state and the politics of negative co-ordination’ Journal of European Public Policy Vol 8, No 1, p 111, 2001 illustrates this claim through two examples: a case study (carried out by Aalder and Wilthagen) of the Dutch occupational safety and health regulations. The study shows that ‘occupational and health and safety inspectors place less importance on intervention at the shop-floor level and instead seek to “monitor and regulate the operation of self-control systems and subsequently, intervene at the system level”’. The other example is about the Australian competition watchdog who increasingly relies on compliance regimes within corporate bodies rather than direct enforcement of competition legislation.

52. This claim is supported by J Wallace, D Ironfield and J Orr ‘Analysis of market circumstances where industry self-regulation is likely to be most and least effective’ Report prepared for the Australian Commonwealth Treasury, May 2000, p vi. The authors claim ‘From a government perspective, an important objective is to reduce potentially adverse effects that market failure has on the welfare of consumers and the wider community’ and not in actual regulation of the area with an intention to improve consumer welfare or industry profitability. The regulation of the area is left in the hands of the firm/s whose objective of self-regulation is ultimately ‘to improve the firm's profitability which, in some circumstances, will also improve consumer welfare and bring benefits to the wider community’.

53. The Working Group on Internet Governance ‘Report of the Working Group on Internet Governance’ (June 2005), available at http://www.wgig.org/docs/WGIGREPORT.pdf (accessed 5 August 2005); see also EU proposal dated 28 September 2005 ‘Proposal for addition to Chair's paper Sub-Com A internet Governance on Paragraph 5 “Follow-up and Possible Arrangements”’ Document Reference: WSIS-II/PC-3/DT/21-E dated 30 September 2005, available at http://www.itu.int/wsis/docs2/pc3/working/dt21.html (accessed 2 October 2005).

54. See R Hall and T J Biersteker (eds) The Emergence of Private Authority in Global Governance Cambridge University Press, Cambridge, 2002, p 4.

55. P P Swire, ‘Elephants and mice revisited: law and choice of law on the Internet’ University of Pennsylvania Law Review Vol 153, pp 1978–1979, and 1998, 2005.

56. The refusal of the US court to enforce the injunction of a French court in the Yahoo case is a ‘classic’ example of the problems involved.

57. See for example, P S Berman ‘Towards a cosmopolitan vision of conflict of laws: redefining governmental interests in a global era’ University of Pennsylvania Law Review Vol 153, pp 1819–1882 and 2003–2016 2005.

58. See J Reidenberg ‘Technology and Internet jurisdiction’ University of Pennsylvania Law Review Vol 153, pp 1951–1974, 2005 and J Reidenberg ‘States and Internet enforcement’ Fordham School of Law, Pub-Law Research Paper No. 41, 2004, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=487965 (accessed 10 December 2004).

59. See Swire, op cit, note 55, p 1992.

60. Ibid, pp 1988–1989 for a discussion of the stalling of the drafting process and http://www.cptech.org/ecom/jurisdiction/hague.html for relevant drafts (accessed 2 October 2005).

61. The Working Group on Internet Governance, ‘Report of the Working Group on Internet Governance’ (June 2005), available at http://www.wgig.org/docs/WGIGREPORT.pdf (accessed 5 August 2005).