The Internet and the Law: a New(ish) Frontier
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”
‘A Declaration of the Independence of Cyberspace’, John Perry Barlow, 1996
The 1996 Declaration of the Independence of Cyberspace seems almost ridiculous nowadays. It’s obvious enough that even though the Internet isn’t limited by national borders and you might have your own online ‘identity’, the people using the Internet still live in the real world. The Internet may be different, but it doesn’t take human beings into a new reality where they cannot be reached by the State or punished by it. The law does extend to what we do online. However, the way in which we regulate the Internet, from its setup to applying ‘old’ laws to the things we do in cyberspace, is determined largely by the differences that John Perry Barlow set out in 1996. The Internet is the ‘new frontier’ of law and questions many of our assumptions about nation states and the extent to which law can control our behaviour. It’s through thinking about the news stories we have all heard about online Twitter abuse or illegal downloads that we can understand how our legal system might struggle to get to grips with cyberspace.
Perhaps the easiest way to see the way the law might try to control the Internet, from access to the content we post online, is to look at the ways in which it is seen to be different to the ‘real world’. It also gives an opportunity to show how these differences may not be as significant as John Perry Barlow thought.
The Internet as different
Quite a few things make the Internet different to the ‘real world’ in ways that are significant for law. Firstly, the Internet takes very little notice of nation-state boundaries. Think how easily (and cheaply!) you can Skype a family member who’s abroad, or e-mail a penfriend. Think how quickly you can send a picture abroad. This creates problems for those States which technically ban the publication of obscene publications. For example, it is illegal to import obscene publications into the UK – but we never hear of prosecutions for downloading explicit material that is held on an American server. ‘Importation’ gains a completely new meaning because we don’t have the usual customs points to go through and therefore the same opportunity for the State to control what is being passed between countries. And it potentially lessens control by the State since there is no physical entity within State boundaries that can be controlled. Say I put something on a UK server that is completely legal in the UK but can be accessed from another country – say, an article denying the Holocaust, which would be illegal in Germany. The information is available and obviously the German legislature has decided that this information can do harm in Germany, but the German State will have difficulty in prosecuting or at least punishing me because the crime was not committed on their territory and the UK government may not want to extradite me for something that is legal on UK soil. Obviously this problem can occur with paper publications too, so this concern should not be over-exaggerated, but by the information being online it can spread quicker and is more difficult for the State to control or destroy.
As a result of this, state-organised control of content is largely unfeasible. This is in part because Internet access is not controlled by the State in most countries; Internet Access Providers (IAPs) are usually private companies. And whilst many IAPs will filter out certain content that is blacklisted by the international (but only advisory) Internet Watch Foundation, many of them will not filter out content purely because the State considers it to be morally wrong or dangerous. The Great Firewall of China is the obvious exception, which demonstrates how strong a government needs to be to start filtering content or limiting Internet access. A big principle that many say should be the foundation of the Internet is ‘net neutrality’. This idea basically says that an IAP acts like a post man who delivers your letter but never opens or reads it. The Internet should be available to everyone to post whatever information they like, with no State or IAP control such as filtering content or slowing Internet speed for those who illegally download copyright or explicit material. Whether this is actually achieved in most countries is another issue, especially regarding media of that nature and illegal uploads of copyright material.
Even if the State or an IAP does try to control online content, the Internet (and its users) move faster than the law. Every time a website illegally sharing copyright material is blocked by an IAP, another takes its place. When Pirate Bay was shut down following a court case, it just moved onto another server. Schoolchildren can even avoid blocks on their school Internet network using mirror sites, so it’s no surprise that the anti-copying measures on certain paid-for content can be circumvented. Nobody can yet work out who draws the ‘Jesus and Mo’ comics which have caused so much controversy for drawing the Prophet Mohammed (p.b.u.h.), and without that anonymity there is little question that the comics would have continued – the artist struggles to keep the comic online as it is. So when a court order bans a website or tells an IAP to block it, there’s often little point in trying. This is before we even get to the truly dangerous things found online such as videos of child abuse. If the person who uploaded the content cannot be found it doesn’t matter that their body does exist in a jurisdiction and the law does outlaw such activity. These are the sorts of problems which are seen in cases of harassment too, such as the abuse received by the feminist campaigner Caroline Criado-Perez. As well as the difficulty in finding the ‘real’ user behind the identity, we should also consider whether the fact that many fail to really realise the full impact of their messages means that we should think about whether every instance of online abuse can or should be punished by the law. This is discussed below, but specifically in relation to abuse it is harder to think about the impact an online message might have on its recipient when you don’t know them, and are perhaps being egged on by other social media users.
Part of this problem with the way law interacts with the new platform of the Internet is the fact that everybody can publish information online, and it’s so easy. When it is incredibly simple to post a message online in a moment of idiocy, which can then make its way round the world in half a day, it’s difficult to know how to treat such a comment. The type of person who posts malicious comments about Tom Daley’s dad dying, jokes about bombing Robin Hood airport because their plane was delayed, or makes inappropriate comments about the murder of school teacher Ann Maguire probably don’t intend the whole country to find out about their comment – they were more likely trying to create controversy or make a joke among a circle of friends. And yet if these comments were made in a newspaper we would be concerned and the authorities may well get involved, so should there be a difference in their treatment? Everybody can be a publicist nowadays, but not everybody understands the laws on freedom of speech or copyright.
Think about the number of illegally uploaded YouTube videos which say ‘no copyright intended’ – you don’t need to intend to create copyright in a work, and copyright infringement isn’t dependent on intention! Parodies made from using original copyright material such as ‘Newport State of Mind’ or ‘They’re Taking the Hobbits to Isengard’ are a problem too. Both of these parodies were hugely popular. Both would most probably be legal in the US and illegal in the UK. Both were created by relative amateurs and distributed worldwide in a short period. And, as in the real world, their fate on UK sites largely depended on the rightsholders’ view of the parody – Newport State of Mind was taken down after a threat of legal action whereas – far from objecting to the video – Orlando Bloom was more than happy to recreate ‘They’re Taking the Hobbits to Isengard’ on set for the Lord of the Rings (even if he got the script wrong)! What is important is that the parodies were so easy to make and distribute due to new technology, and that with enough pressure put on sites like YouTube to block potentially infringing content the rights holder might be able to get potentially legal content taken down when the parodist has no money to bring a legal claim to stop them. Then again, they can always find a new site to host it on! The power play completely changes online and it’s worth thinking about what some countries could do to protect those making legal parodies who are being intimidated by ‘big players’.
When everyone can recreate material or alter existing intellectual property and redistribute it at almost no cost, there are big problems for copyright law. The European Union bans any States from requiring IAPs to monitor all of its traffic for illegal file-sharing, but the UK is in the process of coming to an agreement on ‘educational letters’ to persistent illegal downloaders based on specific complaints from rights owners. Other countries such as France will permit the cutting-off of users’ Internet after two of these letters, and this was suggested for the UK. However, as we’ve seen it is often difficult to keep up with these sites and their users, so instead new ways of legally sharing copyright material are being developed in an attempt to get some money for creators whilst making copyright material easily available at any time. iPlayer, Spotify, Netflix, iTunes rentals and others are the new way to watch programmes or listen to music cheaply or for free, which appeal to those who want access at any time for a relatively low (or no) price. Game of Thrones Series 4 is being broadcast at 1am UK time (when the American broadcast first goes out) because there were simply too many illegal downloads of the last series – fans weren’t willing to wait for the broadcast the following evening! So the industry has had to develop new forms of content access to deal with the fact that traditional laws and enforcement mechanisms for copyright aren’t well suited to the Internet. The UK’s 2010 Digital Economy Act says that annual reports on copyright infringements must also include information about alternative mechanisms for legally accessing content that are being put into place. Whilst there’s no obligation for such mechanisms to be developed, it is implied that the Secretary of State’s decision to take some of the further powers against infringers (which weren’t in the end brought into force) should be partly influenced by whether the industry is making an effort to create decent alternatives for users to buying a CD, DVD or download.
Self-regulation is not enough
Part of the Declaration says that:
“The only law that all our constituent cultures would generally recognize is the Golden Rule.”
That is, treat others as you wish to be treated. There are those who say that the only valid online rules are those agreed by Internet communities themselves, since State law cannot convincingly impose them. And there are ways in which this sort of development can be seen, such as online forums where users will be quick to criticise those who break the understood rules. On the most basic level, if you mismatch a meme with a statement you create then you will find yourself criticised! And of course, on many levels the Internet is left to self-regulation. IAPs organise the transmission of messages between national networks, companies set their own limits on accessing content they want us to pay for, and online communities largely monitor their own activities – not least because no State could possibly monitor, filter and enforce the law against everything that is online. It isn’t to be forgotten however that there is a large place for the law. We are still hard-wired to ask for the law’s help when we are wronged – cases of Runescape theft have, after all, made their way into the courts. That Runescape ‘theft’ is real theft is a demonstration of how well the law can adapt to the Internet, but anonymity and circumvention are big problems. It’s also important to remember that even if the activities we are thinking about happen in ‘cyberspace’ their impact is real – on people who are harassed, musicians who receive no royalties for their work (especially independent artists) and those who are affected by hate speech or offensive material being distributed online. It is for this reason that the way the law interacts with the Internet is a crucial question; however the Internet might be different to ‘real life’, the people and interests affected by it are very real indeed.