Cyberlaw – an area of law?

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Short essay done for class – because it’s more opinion than anything, I thought I might share it. Warning: legal stuff.

 

What is cyberlaw? Cyberlaw is the law applicable in ‘cyberspace’, a seemingly ‘global-economic zone, borderless and unregulatable’ (John Perry Barlow in 1966, quoted in Reed, 2004). Yet, as Chris Reed argues, it is possible to proceed to a localisation in the ‘physical’ world of the constituent elements of any given activity in cyberspace, and national laws will therefore apply, in accordance with rules on applicable law (such as the Rome I and Rome II Regulations, at the level of the European Union).

Therefore, there are as many legal orders in cyberspace as there are national (or supranational) legal orders.

Having made these preliminary remarks, the original question, to which the introductory statement refers, remains: is cyberlaw an area of law?

 

It is the opinion of the author of this essay that cyberlaw is not (yet) an area of law, but that it is a legal order. Let us examine why one might be led to such a conclusion.

Since the creation of the Internet and of the World Wide Web, where cyberspace activities mainly revolved around the exchange of purely academic information (see the first Usenet ‘newsgroups’), the array of activities carried out in cyberspace has never ceased to expand. The Internet is not only the realm of discussion, but it also houses commerce, crime, …

As cyberspace developed, so did national (and supranational) regulation of this ‘virtual’ world (e.g. the Convention on Cybercrime of the Council of Europe or the E-Commerce Directive of the European Union and their respective national implementations). While some laws provide for the application of specific rules to cyberspace activities, many aspects of these activities remain governed by rules crafted with the physical world in mind.

Any activity in cyberspace will thus be governed by rules relating to contract law (e.g. contract liability), tort law (e.g. defamation), intellectual property law (e.g. copyright infringement), constitutional law (e.g. free speech), …, just as it would be if there were a physical equivalent to the activity in question. Where specific rules exist for cyberspace activities, these rules replace those of the physical world.

The preamble of the E-Commerce Directive is telling in this respect, as it states that ‘[t]he objective of this Directive is to create a legal framework to ensure the free movement of information society services between Member States and not to harmonise the field of criminal law as such’. This establishes a distinction between services and criminal law, notably for reasons linked to the European Union’s competence, and thus perpetuates and transposes the existing distinction between areas of law of the physical world into the virtual world.

Cyberlaw today therefore comprises both law of the physical world and specific law made for cyberspace in particular.

 

Can cyberlaw nevertheless be considered to be unique enough to qualify as an area of law distinct from all others? Proponents of this idea may draw arguments from the existence of ‘aviation law’, ‘space law’, ‘admiralty law’, … Indeed, Andrew Murray writes that ‘the aviation industry created a complex set of socio-legal requirements’ for an array of activities related to flights (Murray, 2007).

However, it is the opinion of this author that such is not yet the case for cyberlaw: if there is a threshold of specificity of legal norms to be attained for cyberlaw to be deemed an area of law, the sheer proportion of rules from the physical world still applying in cyberspace without modulation places cyberlaw well beneath this threshold. The set of ‘socio-legal requirements’ distinct to cyberspace is not yet sufficiently complex, as cyberlaw holds too many ties to law of the physical world.

Furthermore, this author is unconvinced of the possibility of cyberlaw ever becoming a distinct area of law (or at least not in the short run). Indeed, if the first decade of this 21st century is any indication, activities in cyberspace ten years from now will not be limited to what they are today. As activities in cyberspace become more diverse, the number of existing rules of the physical world applying to cyberspace will grow, and it is unlikely that regulators will provide for rules specific to cyberspace in all instances, leading thus to a perpetuation of the distinction among areas of law (traditionally of the physical world) in the virtual world.

Therefore, rather than contemplating the issue of whether cyberlaw is an area of law, this author suggests that it would be more appropriate to view cyberlaw not as an area of law, but as a legal order parallel to a legal order applying to the physical world.

Just as the physical legal order concerns the law of contract, the law of tort and other areas of law, so does the legal order applying to activities of the virtual world. In addition to its own rules in certain areas, where regulators deem it necessary to provide for specific rules in light of the nature of electronic communications and of the Internet, the virtual legal order contains rules stemming from the physical legal order, not unlike the way in which the legal order of any Member State of the European Union contains rules stemming from the legal order of the European Union.

Murray set out to prove that cyberlaw was an area of law notably to prove Joseph Sommer wrong, after the statement that ‘"cyberlaw" and "the law of the internet" are not useful concepts’ (Sommer, 2000). Perhaps his task would have been easier, had he viewed cyberlaw as a legal order: in this context, cyberlaw is a useful concept, as it enables a better understanding of the legal landscape.

 

References:
A Murray, The Regulation of Cyberspace: Control in the Online Environment (Routledge-Cavendish, Oxon 2007)
C Reed, Internet Law: Text and Materials (2nd ed Cambridge University Press, Cambridge 2004)
J Sommer, ‘Against Cyberlaw’ (2000) 15 Berkeley Technology Law Journal 1145.

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