The Law of Electronic Commerce and the Internet in the UK and Ireland

Steve Hedley

• Publisher: Routledge-Cavendish
• Year: 2017
• ISBN:
  9781135327828
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

'Internet law' and 'electronic commerce law' are new entities and as such there is some difficulty in defining this rapidly changing area of the law. Scholars are divided as to whether it is a subject in its own right or part of a broader area and there is also debate concerning its status as a new law or as old law which needs interpreting in a new way. This text helps the student to unravel this complicated area of law and provides guidance through the wealth of literature available on the topic.

The text is for law students coming towards the end of their first degree, or taking a Masters. The first half focuses on the principles of electronic commerce law and includes an introduction to the law of the Internet, basic concepts in intellectual property law, privacy law and data protection. The second part deals with rights and duties in the online world including, liabilities, ownership and contracts. Technical operations are explained in the text as necessary and a glossary provides a guide to the more commonly encountered computer technicalities.

With a supporting website providing links to online further reading, this textbook is ideal for students of e-commerce law and will provide those studying information technology law or practising commercial law with an indispensable introduction to Internet issues.

Chapter 1
The Internet and the Law

The Internet is a world-wide public access network of computers. It has no owner, though of course each of the individual pieces of hardware on which it runs has an owner. It relies for its operation on mutual comprehensibility between those various pieces of hardware. This is achieved by voluntary adherence to a single protocol – to use a human metaphor, the various machines all speak the same language.

The communications this allows for, and the laws applicable to them, are the subject of this book. 'Law and communication' would of course be an impossibly broad topic; but the peculiarities attaching to communication via the Internet seem to require distinct consideration. The use of the Internet for buying and selling – e-commerce – is a particular concern throughout.

Is 'Internet Law' a Subject?

There is no single code of laws applying to the Internet alone. Those who seek out the laws which apply to it meet a bewildering mix of the specific, the general and the metaphorical. There are a few (very few) specific references to the Internet in legislation and in international treaty. There are other laws which apply to general types of communication – trade communications, or defamatory communications, or pornographic communications – and so have some application to communication over the Internet. And the tendency to think of the Internet as a place, as somewhere where people do things with or to other people, invites the question of what other laws apply to this conduct.¹

While most would now concede that there are many laws applicable to the Internet, not all conclude that 'Internet law' (sometimes called 'cyberlaw') is properly regarded as a legal topic in its own right. On one view it merely applies settled principles from different legal disciplines to certain practical, Internet-related problems; the separate legal areas remain distinct. This argument, which will be met with repeatedly in the literature, comes in two forms, which can be called the 'micro' and 'macro' forms of the argument.

The micro argument

The 'micro' denial that Internet law is a subject considers individual legal issues affecting users of the Internet, and seeks to show that they can be resolved without invoking any special legal principles. So (some argue) questions of whether a contract has been formed over the Internet simply call for the application of the principles of offer and acceptance; questions of who, if anyone, owns files transmitted across the Internet are simply questions of copyright; and so on. So 'Internet law' is not a new subject. It is merely old wine in new bottles, and the older bottles had less confusing labels.²

How strong these arguments are on individual points of law must depend on more detailed consideration of each point. Much Internet law is indeed straightforward application of copyright, but copyright law has already been substantially modified to provide for the Internet; and how satisfactory the principles of offer and acceptance are, in Internet contexts or others, is a matter of considerable debate.³ And even if (which is not beyond question⁴) the basic structure of the criminal law can be applied unchanged to the Internet, issues of enforcement bring in unique considerations.⁵ It is also worth pointing out that some of the relevant laws are, if not Internet-specific, at least computer-specific: for example, the laws on interference with computing systems.⁶ If the question is whether Internet law is 'new' law or 'old' law, the answer can only be that it is a mixture of old and new.

The real answer to the 'micro' argument has to lie in the scale of the project. Suppose (contrary to the facts) that every legal principle which applies to the Internet were 'properly' part of some other legal discipline, a mere application of legal principles which were settled without any consideration of how they applied in this special context. Even if that were so, the full range of laws applicable to the Internet can only be understood by someone who treats it as a specialism in its own right. No one can be expert in contract law and intellectual property and data protection and freedom of expression and all of the other laws applicable online. There is simply too much law for the problem to be tackled that way. The 'micro' argument ultimately suggests that Internet law is incomprehensible and must remain so; an unnecessarily gloomy conclusion.

The macro argument

The 'macro' objection to 'Internet law' is less concerned with individual issues, though it draws on them to reach a grand conclusion; that there is something profoundly unlegal in using a real-world category like 'the Internet' to categorise and order legal thought. Lawyers do not concern themselves with 'the law of the horse' or 'the law of television' or 'the law of the photocopier'; rather, they apply distinctly legal categories to the real world while retaining law's unique sense of intellectual ordering. Law should not be based around particular technologies, which are essentially mutable, but around more stable legal ideas.⁷

Argument over this second issue tends to rely on deep-seated prejudices about what a 'real' legal discipline looks like, and on where lawyers should look for intellectual order in their chaotic territory. But on questions like this, lawyers are divided amongst themselves. So, for example, when we consider contract law, some see a stable and successful theory which has consistently seen off a succession of challenges, whereas others see stagnation resulting from a long refusal to engage with the economy as it actually is. And someone who is already committed to the conceptual integrity of intellectual property law or the law of defamation will resist recognition of new subjects which carve off part of their territory.

It may be wisest simply to note that intellectual growth in legal academic thought may be best served by differences of approach, and leave it at that. Nonetheless, there are important features of the current Internet legal scene that will be missed if the topic is approached largely from the perspective of other, established legal disciplines.

First, some basic understanding of the technology is necessary both for applying the law and for assessing its value. It is certainly unusual for a legal topic to be so heavily reliant on a particular technology, but then the Internet is an unusual technology. The most obvious danger from lawyers' references to technology is that they will be either incomplete or outdated. But this is a danger of which all are well aware – hence the already established tendency of legislation to be cast in 'technologically neutral' terms even when it was inspired by a particular technological development. Certainly it seems less dangerous than trying to state the law with no technological awareness at all.

Secondly, studies of distinct legal topics have a tendency towards nationalism. A student of (say) trade mark law will usually concentrate on a single jurisdiction; references to other jurisdictions and to international materials might be thought to enhance understanding of the local jurisdiction, but only by way of casting light on the main subject. Internet law is necessarily different. While it may be described from the standpoint of a particular jurisdiction, nonetheless we must look wider. So (for example) the law on ownership of .com domain names is part of US Federal law, or at least is so thoroughly enmeshed in it as to make no difference.⁸ Internet law simply cannot be treated in the same jurisdictional spirit as other areas of law.⁹

Dramatis Personae

What sort of people appear in problems related to Internet law? All legal liabilities are between individuals, whether these are actual individuals or pretend individuals representing collectivities or official roles of some sort ('Microsoft Corporation' or 'The Queen'). Various types of individuals will be met with again and again in this context. Ordinary users of the Internet may incur liabilities as a result of their actions. Those who make access available for others may also incur liability, whether access is provided for payment (by an Internet service provider (ISP)), or as an incidental part of a contractual arrangement (employers providing access for employees, or universities for their students) or for nothing (one family member providing for the others). Liabilities may also be incurred by those with permanent presences on the web, such as web sites of various sorts. Last but not least, liabilities may be incurred by those involved in administering computers connected to the Internet, or involved in their management. The complex interactions between these various individuals contribute much of the complexity of the subject.

Missing from this list is any obvious role for the organs of government. While the Internet has its origins in a government-sponsored project, and significant elements of its administration are still inextricably connected to the US Department of Commerce¹⁰, nonetheless there is no very obvious means by which any government can control it. Some aspects of Internet administration are sometimes referred to as 'Internet Governance', but while these are not unimportant, nonetheless they fall very far short of controlling what activities people are allowed to pursue over the Internet, let alone applying the law of any particular nation to those activities. To what extent is the Internet 'governed' or 'policed'? This question has no easy answer, and will be re-posed at various points throughout this book.

The Anarchic Internet?

Given the apparent absence of government on the Internet, and equally of many of the problems that governments are supposed to solve, it is natural that the Internet would at first seem as a place without laws and without the need of laws – a sort of anarchist Utopia. It seemed an entirely safe place: it was hard to conceive that your health, wealth or liberty would be threatened by anything there. And to those with even a little imagination, it seemed like another country, indeed another sort of country – existing in a non-physical realm, and not subject to laws considered necessary in more concrete surroundings. Certainly, earthly nations seemed to have been left far behind; national borders were not apparent on the Internet.

And so the idea grew up that the Internet gave access to a different type of space, 'cyberspace', which the law could not reach and where it was not necessary – and which could safely declare its independence from the rest of the world.¹¹ To the extent that any regulation was needed, it could be supplied by the community sense of Internet users.¹² 'Netiquette' was the order of the day.¹³ The indifference of most law enforcement officials to the Internet was seen as beneficial; the anxiety of a few officials to extend the law's reach to cyberspace was thought politically misguided and technologically ignorant. The failure of early attempts to impose law on the net was taken to indicate that legal control was futile, rather than that states would attempt control until they succeeded.

In retrospect, the idea that the Internet was safe and devoid of anti-social behaviour was always as much a matter of perception as of fact. Hacking of various sorts, perhaps causing significant losses to the systems attacked, has always been a feature of the net. The distribution of pornography and of illegally copied materials became common as soon as the Internet was capable of it. And freedom of expression on the Internet has always gon...