General Foundations for Cyberlaw

The described legal perceptions show how difficult it might be to foresee the future legal environment in cyberspace, which is much more difficult than forecasting developments in natural sciences, as for example many drawings of Leonardo da Vinci or the science fiction books of Jules Verne

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show. Indeed William Gibson, who coined the term ‘cyberspace’, said in his novel Neuromancer (1984) that the future is always here, just uneven-ly distributed.

2.1. Legitimacy and Design of Legal Norms

Legal norms do not only need formal legitimacy in the sense that the norms are ‘codified’ through an acceptable law-making process, but also material legitimacy in the sense that people accept the necessity and/or the desirability of a given legal framework. In general, individuals and organ-isations tend to comply with rules and regulations and citizens are usually law-abiding. However, this kind of ‘acknowledgement’ might not be easi-ly achievable in cyberspace. Therefore, lawmakers of whatever nature should keep in mind that legal norms will only be applied in reality if the addressees of the norms consider their imposition fair and adequate. In cyberspace, the concept of the ‘social contract’, leading to rules of behav-iour through individual conviction and tacit consent, is difficult to realise.

Furthermore, the rapid technological developments in cyberspace do have important political and social consequences: (i) science and new technology, if developed in a future-oriented way, can question political structures and powers by causing an unsettling effect, as the examples of Galileo Galilei and the Arab spring revolutions have shown, and (ii) tech-nologies need to comply with social expectations, namely their availabil-ity to the civil society, their social and commercial acceptabilavailabil-ity as well as their implementation in an appropriate way as seen from a cultural per-spective.

As far as the design of legal rules is concerned, their creation makes sense if the application is likely to be effective. In practice, this legislative element means that legal norms should not try to follow a highly compli-cated path with many variables. A deep-rooted approach to law might be sophisticated, but not satisfactory in view of the need to have the legal rules accepted and applied in the (real) society.

2.2. Information Policy Rules

(i) In cyberspace, information policy rules designed by technology can be developed as lex informatica. Such a concept of lex informatica is comparable to the lex mercatoria established by merchants over the last few centuries, encompassing a legal body independent of

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local sovereign rules ensuring commercial participants a basic fair-ness in their relationships. Often, such a legal source is called soft law.

(ii) A first concept of lex informatica has been described by Joel R.

Reidenberg, composed of a set of rules for information flows im-posed by technology and communication networks which policy makers must understand. Reidenberg analyses three substantive top-ics, namely content, personal information, and ownership rights;

thereby, the lex informatica follows an open approach as the sys-tems configurations allow two types of substantive rules, namely immutable policies embedded in technology standards and flexible policies embedded in the technical architecture.

The strength of the lex informatica can be seen in the intro-duction of flexible standards, based upon the technological envi-ronment, enabling customisation of configurations. The flexibility and openness, however, is not without disadvantages: an adequate legal framework requires a minimum of predictability in order to establish reliable relations between persons; furthermore, the demo-cratic legitimacy of ‘policy makers’ being in charge of setting the framework for technical solutions could be debatable.

(iii) In a similar way, Warren Chik analysed the disjuncture between the law and practices in cyberspace caused by the information technol-ogies’ developments including the socio-economic problems and proposed the framework of ‘Internet-ional’ legal principles based on the history of merchants’ customs as a source of law. This ap-proach underlines the suitability of customary international rules as a template for formulating cyberspace law-making rules by adapt-ing customary rules to develop a set of determinants for cyberspace law.

(iv) Taking a social structure perspective Yochai Benkler has sketched a theory of social production in the information environment, which appears to be marked by collaborative forms of development being common-based (relying on a common goal of informational re-sources) or peer-produced (based on decentralised creative inputs).

Thereby, Benkler intends to take care of the effects that law can have through the way it structures the relationships among people with regard to the information environment they occupy. Insofar, structural foundations are laid down in his approach optimistically

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designed as arising organically. According to Benkler the structure of the information environment is constitutive of the citizens’ au-tonomy, not only functionally significant to it, leading to the as-sumption of trust in the empowerment of the individuals, rather than in the political system giving the structural contours of the envi-ronment.

(v) From the described concepts looking at information policy rules, the lesson that can be drawn consists in the assessment that the in-formation intermediaries will play a crucial role in future cyberlaw.

The intermediaries are the angle of the communication channels giving them a control function charged with the corresponding ac-countability and responsibility obligation. Therefore, the legal rights and responsibilities of the information intermediaries are becoming an important issue for future cyberlaw. Furthermore, due to the global character of the Internet, the impact of conflicts of law prin-ciples on the regulatory norms in cyberspace merits particular atten-tion, at least to the extent that internationally accepted customary rules are not the prevailing states’ norms.