The internet: what’s law got to do with it?
Despite the internet’s non-governmental nature, its origin is public: started as an army network in the 1960s, and primarily used by universities in the 1970s and 1980s. There was no need for law back then, the internet served as a communication infrastructure for ‘decent’ people that committed themselves to so-called netiquettes. Commercial transactions were scarce, criminal behaviour almost absent, and occasional misbehaviour was handled by peers. The world-wide web, initially thought of as a means to easily share documents and stimulate collaboration, changed the internet completely for it allowed, facilitated and eventually led to the mass use by citizens, companies and governments. As a consequence of all the activity on the internet, slowly but surely the law came into the picture.
The characteristics of internet, however, make it extremely difficult to apply the law. Law uses geography, jurisdiction is based on territory. But whose territory is the internet? Started from public roots the internet has evolved into a private communication infrastructure, that falls under no direct responsibility of any government. However, activities on this infrastructure can be legally relevant to and may fall under various jurisdictions. What to do? Should governments intervene? Are they allowed to anyway? And if so, what measures are effective and realistic?
A red line within the legal discipline of internet law is to find the right balance between the private sphere and public interference. Not surprisingly, privacy is an often occurring topic. Other common issues are terms and conditions, provider liability, criminal activities, intellectual property, etc. Irrespective of the exact legal topic, the borderless, global nature of the internet calls for international co-operation. By nature the internet fits in with the idea of the European Union’s internal market, reason why many Directives, recommendations, and resolutions has been issued on internet law topics. The Council of Europe has drafted a Convention on Cyber Crime.
Despite initiatives like these, still most internet law is nationally oriented, and created in case law by local judges. Although some issues can be solved on a local level, undeniably most issues should be approached at a global level. Why should a European consumer be forced to follow terms and conditions of American companies that are unlawful under his own law? On the other hand, why should this American company change its policy if what they do is legal in their country? One way or the other, in both cases local law is applied to an inherently global phenomenon. This leads us to one of the most challenging questions for internet lawyers:
Can we create and enforce global internet norms?
Arno R. Lodder