REGULATING THE CYBERSPACE*
By Karnika Seth, Cyberlaw expert & Partner, Seth Associates Advocates & legal Consultants
Can we regulate the internet?
The unprecedented advent of Internet is challenging many existing models of Information society and forms of regulation. Internet is a global communication network and in its quintessence, beyond the national frontiers and does not fit into the existing regulatory regimes. While it stands clear that internet based activities are subject to legal regulation, it also clear that no single State can exert control over Internet as a whole. Further, the notion of convergence is assuming increasing importance in the development of regulatory policy. Traditionally, technologies such as the telephone, broadcasting, cinema and the printed word have been considered discrete and subject to quite different regulatory regimes. The technologies are converging and in my considered opinion, regulatory regimes should also move together. David R Johnson and David G Post advocate that online service users and providers are aiming to create a self regulation mechanism. An example in this direction is the ICANN’s Domain name dispute resolution policy adopted by WIPO and administered by it to resolve domain name disputes between parties that may belong to different jurisdictions. Also, widespread agreement already exists about basic netiquettes of using the Internet. It is felt that in cross border online disputes International law principles of delegating authority to self regulatory mechanisms and comity will play a significant role. It is also incorporated into the principles set forth in the Restatement ( third of Foreign Relations law of the United States in Section 403 which states that .
“a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable”.
And that when a conflict between two States arises-
“each State has an obligation to evaluate its own as well as other States interest in exercising jurisdiction and should defer to the other state if that States’s interest is clearly greater”.
In the 1990’s self regulatory measures were seen to provide the basis of ethical regulation of the internet. John Perry Barlow then published a “Declaration of Independence for the Internet” (1996) which stated as follows:
“Governments of Industrial world, you weary giants of flesh and steel, I come from Cyberspace, the new home of mind. We have no elected government, nor are we likely to have one,. I declare the global social apace we are building to be naturally independent of the tyrannies you seek to impose on us”
The rapid growth of internet demanded a more sophisticated notion of legal regulation. By 1997 , the then president of US, Bill Clinton issued internet related declaration titled A framework for Global electronic commerce that elucidated principles of “Private Sector should lead”. “Facilitation of e-commerce by government” and “encouraging Industry self regulation” although Government were invited to act if necessary . The Australian government endorsed this reasoning and developed Co – regulatory regimes in the areas of content regulation (Broadcasting Services ( online services) Amendment Act 1999)and privacy ( privacy amendment ( Private Sector) Act 2000). “Co- regulation” defined a scheme where government and industry work hand in hand to develop a regulatory framework.
In 1999, Lawrence Lessig, then a professor of law at Harvard University law school released a book called Code and other laws of Cyberspace. In his book Code, lessig explains just as architecture in real space can constrain our actions, architecture in digital world (Code) can regulate what we do. If we want to stop our copyrighted works from being copied over net, we may use technological methods apart from resorting to copyright law. In response to the increasing copyright infringements online in December 1996 , WIPO Copyright Treaty came into force Article 11 of which provided that States should enact laws to prevent circumvention of technological protection measures that protect copyright information. USA did this through Digital Millennium Copyright Act 1998 and so did the European Union in its directive on Copyright and other related Rights in Information Society 2001.
The core principles of Cyber Regulation
The quandary over application of traditional rules to online transactions has brought a common consensus on atleast few basic principles that are accepted worldwide to regulate the cyberspace.
Firstly, equivalence of traditional and electronic transactions. Much of the legislative reform across nations is based on the UNCITRAL model law of electronic commerce, 1996 .
Secondly, establishing of trust in e-transactions. In 1995, the EU responding to the concerns over the invasive nature of internet and its dramatic capability to trace and profile individual identity promulgated the European Directive on Data Protection .
Broadly speaking, the Directive requires States to enact legislation covering the processing of data collection in the private sector requiring, interalia, the purpose for which the information is gathered to be disclosed at the point of receipt, that the information should only be used for that purpose and the individuals have the right to see and update their data. Most importantly, Article 25 of EU Directive stipulates that EU Businesses cannot disclose data to members of third party states unless it is shown that effective data protection regimes are in place in those states. Canada has responded by enacting similar obligations in Privacy and Electronic Documents Act passed in April 2000 and likewise Australia enacted the Privacy Amendment (Private Sector) Act 2000.
Thirdly, there is a universal consensus on encouraging participation of non governmental entities in regulation of e-commerce ( e.g operation of WIPO domain name dispute Resolution policy), and fourthly, preserving openness of channels of e-commerce and maintaining free competition.
It is reasonable proposition to leave the internet space free but subject to certain governmental restrictions which are extremely necessary in public and national interest. This is important to promote the technological and utilitarian growth of Information technology. Hence, unless any particular activity on the Internet cannot be controlled through the rules adopted by Internet service providers and users (together with the use of technological tools) and has unacceptable adverse consequences from a public policy perspective (which would need an international consensus through treaties or otherwise), there seems to be no good reason against allowing Internet users themselves to choose self regulation mechanisms.
We welcome responses to the issues raised here. Please mail your comments to this address:Karnika@sethassociates.com