C HAPTER III
5. Emerging Issues
5.1. Future Cyberspace Trends
It is important that the cyberlaw of the future take this focus because there are constantly new issues emerging online that raise challenges for the ex-isting legal system. Some obvious examples of these challenges include:
the future of online intellectual property protection; trademark and free speech issues under the newly expanded process for generic top level do-mains of the Internet Corporation for Assigned Names and Numbers; the regulation of online bullying and harassment; the challenges of finding an appropriate balance between freedom of expression and the protection of privacy and personal reputation online, particularly in the context of online social networking.
5.2. Cyberlaw as a Meta-Field
Suggesting a reconceptualisation of cyberlaw as a law of the online inter-mediary is not necessarily to say that distinct legal fields such as copy-right, trademark, defamation, and antitrust should not continue to address Internet issues. Obviously, laws in specific pre-existing legal fields must accommodate the Internet such that, for example, digital copyright laws should continue to be placed within copyright legislation and not in some abstract Internet statute. A reconceptualisation of the kind addressed in this discussion is in a sense a meta-conception of a legal field. The cyber-law of the future would be superimposed over, and at a higher level of ab-straction than, pre-existing legal fields. This is really no change from what takes place in today’s scholarly discourse on cyberlaw which confronts challenges from different fields within a more general ‘cyberlaw’ rubric.
What this discussion is suggesting is that the notion of cyberlaw should have a unique central focus on the role of the online intermediary, rather than the distinct lack of focus it has maintained previously.
5.3. Practical Benefits of Reconceptualising Cyberlaw
An obvious advantage of such a reconceptualisation would be that it would allow commentators, judges and legislators to draw parallels across different fields of law to develop more cohesive and predictable rules for those who provide the backbone of the online experience – the online ser-vice providers. A focus on intermediaries may also assist in the global
The Law of the Future and the Future of Law: Volume II
Law of the Future Series No. 1 (2012) – page 148
harmonisation of rules relating to the Internet if different jurisdictions adopted the same approach to reconceptualising cyberlaw. In turn, a more harmonised approach to substantive rules of intermediary liability for is-sues such as defamation, privacy and intellectual property infringement might lessen the pressure on jurisdictional questions such as choice of law. If global laws were relatively harmonised, choice of law questions would diminish in practical significance.
5.4. Harms and Remedies
Additional benefits may follow from adopting an intermediary-focused conception of cyberlaw in the future. If courts, legislatures and commen-tators were more focused on what is truly unique about the Internet, they could more meaningfully address other aspects of online harm that arise specifically from online interactions. For example, harms and remedies caused by online interactions tend to differ significantly from those in the physical world. Online interactions cannot cause direct physical harm, un-like, say, assault, battery, property damage and the like in the physical world. Online harms tend to fall into two categories – economic loss and personal humiliation. These are the kinds of harm that can be caused by wrongs based on information exchange as opposed to physical contact.
Allowing for the development of a cyberlaw field that focuses on what is unique about online interactions, rather than spilling ink debating the ‘law of the horse’ issue, would create a conceptual space within which to ad-dress questions of harms and remedies that are unique to cyberspace.
6. Conclusions
The cyberlaw of the past has been something of a black sheep in law school curricula and in legal debate, never having its own clear bounda-ries and constantly battling the ‘law of the horse’ criticism. However, the cyberlaw of the future can and should move past these limitations. Legal developments in cyberspace over the past decade or so have demonstrated that there are a number of unique aspects of Internet communications that support a cyberlaw field. The key to the field is the role of online inter-mediaries: in particular, balancing the need to foster innovation in online services with the need to impose certain liabilities on intermediaries in or-der to prevent online harms to Internet users. If the global law and policy community can focus more directly on the role of the online intermediary,
Cyberlaw 2.0
Law of the Future Series No. 1 (2012) – page 149
a more principled, predictable and cohesive set of cyberlaw regulations should emerge.
7. Sources and Further Reading
Easterbrook, Frank, “Cyberspace and the Law of the Horse”, in University of Chicago Legal Forum, 1996, p. 207.
Grimmelman, James, “The Structure of Search Engine Law”, in Iowa Law Review, 2007, vol. 93, no.1.
Lastowka, Greg, “Google’s Law”, in Brooklyn Law Review, 2008, vol. 73, p. 1327.
Lessig, Lawrence, Code Version 2.0, Basic Books, 2006.
Lessig, Lawrence, “The Law of the Horse: What Cyberlaw Might Teach”, in Harvard Law Review, 1999, vol. 113, p. 501.
Moffat, Viva, “Regulating Search”, in Harvard Journal of Law and Tech-nology, 2009, vol. 22, p. 475.
Reidenberg, Joel, “Lex Informatica: The Formulation of Information Poli-cy Rules Through Technology”, in Texas Law Review, 1998, vol. 76, p.
553.
Cases
Perfect 10 v Google, 508 F. 3d 1146, 9th Cir. 2007.
Perfect 10 v Visa International Service Association, 494 F. 3d 788, 9th Cir. 2007.
Law of the Future Series No. 1 (2012) – page 151