Cyberspace Regulation: Detailed analysis of International legal framework
From Advocatespedia, The Law Encyclopedia
“The ability of the World Wide Web (Internet) to penetrate every home and community across the globe has both positive and negative implications- while it can be an invaluable source of information and means of communication, it can also override community values and standards, subjecting them to whatever more may or may not be found online….The Internet is a challenge to the sovereignty of civilized communities, States, and nations to decide what is appropriate and decent behaviour.” Statement of Rep.Goodlatte in US Congress
The internet — an effective means of social interaction that inevitably altered human life — is the new normal. Its utility to humankind could not be overemphasized as much as its inherent peril could not be underestimated. Cyberspace serves as a huge social medium, a limitless playground, a vast marketplace for businesses, and even a warfare arena for tech-savvy countries including terrorists.
Not infrequently ‘cyber space’ is referred to as a mere virtual space where computer-mediated communication takes place but which may not be spatially located. Accordingly, while ‘cyber space’ might describe a phenomenon of information being routed through various jurisdictions, it still does not constitute some new form of ‘outer space’ where no State could, as a matter of international law, exercise its jurisdiction. Cyberspace spans worldwide, but it has no formal framework. It is a system of multisystems; a network of multinetworks. Yet, cyberspace has no metasystem that controls it. It has no definite metes and bounds except the capacity of the hardware used for access. The lack of formal framework makes cyberspace nobody’s domain. No single individual, entity, or government owns or controls cyberspace. In property law, cyberspace may be considered res nullius; it is incapable of private appropriation just like outer space.
In the early days of the Internet, not too many counties had access to it. Access to the Internet was limited to those that could afford to visit the online world. Since the revolution of the internet however, the internet has embraced in most aspects of our lives, from online shopping, banking, education and so forth. Internet has change the way people think and the way people live. Such changes are social networks that almost erase every privacy right. Facebook founder and CEO M. Zuckeberg recently went on record and said that none of the cool kids care about privacy; neither should you.
The rapid proliferation of computer technology and the internet in India only took place in the last decade, although its roots lie in the liberalisation of the Indian economy in the early 1990s. As a result, the development of regulation for cyberspace was belated. Due to the lack of widespread use of computers and the internet until the late 1990s, there was little pressure for development of laws to regulate computers and cyber space.
1. Need for cyberspace regulation
As electronic transactions over the Internet become important the question arises whether they will be controlled on the national and international levels. Many Internet enthusiasts dismiss this question as irrelevant. They believe in the myth that “you cannot regulate the Internet.”The second fallacy is to believe that the Internet is only electronic, which indeed is hard to control. But communications are not just a matter of signals but of people and institutions. Senders, recipients, and intermediaries are living, breathing people, who live somewhere in real space, or they are legally organized institutions with physical domiciles and physical hardware. The arm of the law can reach them. It may be possible to evade such law, but the same is true when it comes to tax regulations. Just because a law cannot fully stop an activity does not prove that such law is ineffective or undesirable.China is building an Internet backbone that is connected to the world through only set control points. Arab nations are not allowing their citizens full Internet access and are censoring the WWW. Singapore has laws against “improper” usage of the net, and controls all ISPs.
2. Cyberspace, data protection : need to develop appropriate legal standards
One of the most recent questions triggered, in particular, by activities of the US National Security Agency, relates to the protection of human rights in ‘cyber space’ and, in particular, relates to the right of privacy, as codified in Art. 17 ICCPR. Apart from specific treaty-based norms that may be applicable in a given case (such as e.g. the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data), the area is so far under-regulated it is doubtful whether, under either customary law or Art.17 ICCPR, an individual not present on the territory of a State collecting the private data of this individual via the internet is ‘within the jurisdiction’ of the said State within the meaning of Art. 2 (1) ICCPR (or the parallel norm of customary law), so as to trigger the applicability of the respective human rights norm.
3. International Agreements: Unstable
In any cartel situation, there are incentives to break it. There are reasons for a country to be a non- uniform “haven.”Similarly, content-based regulation is near impossible. Content rules depend on values which differ in different societies. Major examples aresexual and political expressions. If an international agreement is a compromise, neither country will be happy. If countries recognize and enforce each other’s rules, there would be many problems. Imagine the United States cracking down, on behalf of the Chinese government, on Chinese dissidents in San Francisco.For this and many other reasons, if international will be are unstable, the primary regulatory action will have to be taken by a country, not by international arrangements. For example, instead of trying to collect a sales tax (ie, a tax on a transaction, conducted over the Internet), governments may, for example, try to tax the transport of the sold merchandise (a “UPS tax”).
Under World Common Law
Cyberspace can be considered as an instrument of dispersion of effects. While the old technologies such as the telegraph, radio and television remain confined in their uses to states, cyberspace has developed a global scope which does not necessarily means that sovereignty is undetermined. The cyberspace phenomenon brought a growing number of digital goods that replaced many other ordinary goods and services. Therefore the rise of cyberspace brings forward the need for revision the meaning and substance of jurisdiction and sovereignty.
Over the years scholars have identified a number of regulatory models for cyberspace. These models include legal rules, market forces, architecture in both physical and virtual, social norms, public education, and private institutions. Another approach is given by Lessig’s “The Laws of Cyberspace” proposes that behaviour in the real world is regulated by four constraints: law, social norm, market, and nature or architecture. According to Lessig, the most important real world constraint is the “architecture” because all other constraints depend on it. For example, in the real world, the constraint of being a kid prevents him from entering a porn shop and buy porn. He can disguise by wearing a moustache but it will soon be discovered. Thus the kid’s architecture is a constraint effective in preventing him from patronizing a porn shop
Famous Case Summaries
Shevill v. Press Alliance , in an international defamation case, France, in relation to the entire circulation of the publication, or in any place where the allegedly defamatory publication is distributed, including England but solely in relation to the damage to reputation caused by the distribution of the publication in that jurisdiction. The Court gave an autonomous interpretation of the ‘place of the event giving rise to the damage’ for the purpose of a libel by a newspaper article distributed in several Contracting States. The European Court of Justice held that an English domiciliary was able to sue a French domiciled newspaper either in the place where the defendant is established.
In Skype Technologies v. Joltid Ltd. There existed a contract between the parties. The contract between Skype Technologies and Joltid contained an exclusive jurisdiction clause in the following terms: "Any claim arising under or relating to the Agreement shall be governed by [English law] and the parties submit to the exclusive agreement of the English courts."’ On breach of contract Joltid intended to terminate the contract. The Skype Technologies initiated legal proceedings in the UK against them. Later on, eBay in U.S which owned the Skype group, declared the selling of its shares in Skype Technologies to various investors. After registering its copyright in US Joltid commenced proceedings against various parties including Skype Technologies. Judgment was made in favour of Skype Technologies, and even an Order that the US action against it be discontinued. The outcome of the US proceedings would depend on whether or not the licence had terminated; the dispute in relation to that was before the English Courts. It was held that Joltid should not be allowed to avoid the consequences of the exclusive jurisdiction clause. Dow Jones & Company v. Gutnik.The US Internet publication posted potentially damaging information regarding an Australian citizen. The High Court of Australia determined that, if information is viewable within Australia, that information and its publishers are subject to the legal jurisdiction of Australia. The court cited the International Covenant on Civil and Political Rights, a covenant which, among other things, protects individuals from international attack on their honour or reputation, as a basis for upholding individual rights. It was held that the material published on the Internet by the American website, however, was not in violation of any US laws. Further it was pointed out that “ jurisdiction refers both to ‘ amenability of a defendant to process in such a way as will give a court authority to decide the controversy which that process seeks to agitate and, second, as referring to a particular territorial law area or law district.