Regulation, Cyberlaw and Efficiency

We discussed at the beginning of the course why "cyberspace," used this way, confuses things. This essay draft simply repeats, wholesale the confusions I discussed at that time.

Which rules apply to online activities?

To whom the rules apply?

Which jurisdiction is competent?

How to enforce the decision?

Oddly enough, we didn't have to do any of this to incorporate telephonespace into the law. In fact, it's all a lot of formalist nonsense. When we don't make the mistake of endowing the network with a separate territorial composition, which we don't with gas pipelines or telephone wires and switches, none of this stuff happens.

The Net creates problems that require important, subtle thinking. These are none of them, as I explained at the beginning of the term. I recognize, of course, that peoples' opinions may differ. But not engaging the ideas one has met with in the classroom is not the best way of learning.

1. Which rules apply to online activities? 2. To whom the rules apply? 3. Which jurisdiction is competent? 4. How to enforce the decision?

Can law apply to all types of activities, especially those for which law was not written? Online activities challenge our traditional legal system and raise the question of whether cyberspace must be regulated through existing law or if it needs additional and/or specific rules to be efficiently regulated.

1. Which rules apply to online activities?

Law only regulates actions, behaviors and intentions. The manner does not matter very much: for instance, murder is prohibited whatever weapon is used. The Internet is just a new global communication media, which facilitates the distribution of expression throughout the world by lowering the barriers of creation and exchange. Therefore, online activities differ from offline activities by their support, not by their nature. Consequently, there is no reason to consider that existing rules should not apply to online activities as they are applied to offline activities.

Nevertheless, law is also associated with sovereign power that can only be exercised on a limited and designated territory. That leads us to the first difficulty: where is the online activities space located? Is it a national public space where the State can express its sovereign powers, or is it an international space such as international transit area in airports or embassies where any national rule can apply?

2. To whom the rules apply?

We can identify three main characteristics for online activities: the author of the action, the publisher, and the victim, who can be the reader in a case of defamation for instance, or the owner of intellectual property rights. Regarding online activities, we should probably add a fourth person to that framework: the Internet provider which gives access to the network. The Internet does not hide the fact that there is real person behind every online action. We have real authors, real publishers, and real readers who can suffer from real damages. Law already provides us some key principles to determine who is liable if the author of defamation cannot be identified. Moreover, even though it is never simple to identify who is who in defamation cases, the same difficulties already arise in any sort of communication network such as newspaper, books…

Paradoxically, we believe that it is more difficult to stay anonymous on the Internet now than it was before with traditional paper-based support. Indeed, anonymous publication was very common during the Ancient Regime because writers wanted to avoid censorship. Even nowadays, without any type of control, everyone can easily write and print anonymous papers and diffuse rumors. In opposition to that, it appears to be more difficult to do it so online because the casual user (without any specific knowledge of computer sciences) does not manage every step of the process. His IP address is known, his Internet provider collects lots of information on his activities, and more traces can be found through the enormous quantity of information, which is carried on by Internet. Thus, it seems to be easier now to avoid anonymous activities online than offline. Consequently, the Internet appears more relevant today to increase law efficiency.

3. Which jurisdiction is competent?

Courts will develop conflict rules to overcome this issue, as they have already done for other types of cross-boarding activities such as shipping or air travelling. In that sense, online activities will be regulated by law as any other type of activities.

In the_ YAHOO! v. LICRA_ case (T. G. I. Paris, May 22, 2000, UEJF et LICRA v. Yahoo! Inc. et Yahoo France, N• RG:00/05308), a French tribunal provided a first clue to resolve that issue. Under French law, the jurisdiction of courts is limited to disputes in which an element of the infraction is committed on the French territory. The Court went on developing an effect-based jurisdictional analysis to determine whether or not it was competent. That decision constituted an international triumph of effect-based unilateral cyberspace regulation.

The solution suggested by the Court is to create virtual borders to resolve these problems of jurisdiction. But is it the only solution? Can we imagine for instance that cyberspace would not be located on national territories and should rather be considered to have the same nature as international oceans or air space?

There are still a lot of questions for the moment around the determination of court’s jurisdiction. However, it seems that these questions are not specific to online activities.

4. How to enforce the decision?

Lack of enforcement is often arising in support of the idea that existing rules are not useful to regulate cross-border matters, such as online activities. Therefore, online activities would be different from other activities because they could not be embraced by law. This point of view is highly controversial though: does that mean that law stops being law if it is not enforceable?

In the Cambridge Dictionary, law is defined as “_a rule, usually made by a government, that is used to order the way in which a society behaves, or the whole system of such rules_”. Enforcement is not explicitly mentioned in this definition, but we can add that every rule must be enforced by the judicial. Even if we add that condition, that does not mean that rules should be effectively enforced or applied by everyone in the community. It only means that rules could be enforced at any time against anyone by a designated and competent tribunal. The difference between “potentially” and “effectively” is crucial in that point.

There is no doubt that rules regarding online activities are often very difficult to enforce but that does not mean that it is always impossible to enforceable existing rules. Consequently, online activities do not differ from offline activities because punishments, in one sense or in another, still exist, and their enforcement is possible.

Finally, if we want to efficiently regulate online activities, courts will have to improve enforceability to make cyberlaw more that than an academic subject.

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