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Cite as: Widdison, Review of 'Law &, the Internet - Regulating Cyberspace'
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Lilian Edwards and Charlotte Waelde (eds), Law & the Internet - Regulating Cyberspace, Hart Publishing, Oxford 1997, 264pp, ISBN 1-901362-30-2, pb £25.
Reviewed by Robin Widdison
Director, Centre for Law and Computing
University of Durham
Copyright © 1998 Robin Widdison.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
Does anyone, apart from a book reviewer, ever read law books from cover to cover? Certainly, that is what I did with Law & the Internet - Regulating Cyberspace edited by Lilian Edwards and Charlotte Waelde - lecturers at the Department of Private Law at Edinburgh University. This is a brief account of what I thought about the book.
Law & the Internet comprises a collection of chapters each based on a corresponding paper presented at a conference on the topic in question held in Edinburgh in March 1997. The chapters are grouped together into five parts, namely: Introduction; Intellectual Property Aspects; Electronic Commerce; Liability for Content on the Internet; and Electronic Evidence and Procedure. I will explore each of these five parts in turn.
Part I consists of three chapters. The first chapter, which is by the editors themselves, sets the scene. It briefly - and usefully - surveys some of the jurisprudential and jurisdictional issues that the Internet poses and points up where relevant detailed discussion is to be found in the subsequent chapters. The second chapter in this part is by Andrew Terrett and is called 'A Lawyer's Introduction to the Internet'. It reads rather like a 'Frequently Asked Questions' page at a Web site. As such, I found it to be a clear, thoughtful and patient explanation of the technology of the Internet and its relevance and importance to lawyers. I have some reservations about the third chapter, though. John MacKenzie's 'Setting up a Legal Web Site: Pitfalls and Promises', tries to do two jobs - i.e. providing a practical guide to setting up a legal Web site whilst also examining the legal liabilities that might arise. MacKenzie takes on too much for such a short paper. In the end, these two jobs get only half the attention and analysis that each deserves.
The second part of the book covers Intellectual Property aspects of the Internet. The first chapter, entitled 'Trade Marks and Domain Names: What's in a Name?', is by Charlotte Waelde. I found this contribution to be a well-informed, wide-ranging discussion of the issues. One small quibble, though, was that the entry threshold is set rather high, making it a difficult read for a novice in the area. Perhaps a longer, gentler introduction to what is, after all, a very esoteric topic would have been helpful.
The other chapter in this part is 'Copyright and the Internet' by Hector MacQueen. MacQueen's approach to the subject seems to be to throw the whole of copyright law at the Internet to discover which bits stick. There is a great deal to be said for this approach, particularly in the early days of legal analysis of the technology. However, such a blanket approach results, perhaps, in insufficient emphasis being placed on some of the key issues. For example, the nature and extent of the implied licence granted to users by those who place material on the Web seems to be worth a paper in its own right and certainly more than the single page of coverage that MacQueen affords it. Also, the author seems to concentrate his attention on 'passive information' - text, sound bites, graphics, video clips etc. He does not appear to consider what different considerations apply to 'active' information - ranging from the applets that litter many modern Web pages to the software that can be downloaded from a multitude of Internet archives. Gringras, interestingly, in his book, The Laws of the Internet (1997), even argues that a simple HTML file should be classed as a computer program. I would accept, though, that Gringras's view is probably a minority opinion on the subject.
Part III three of the book is entitled 'Electronic Commerce'. It comprises three chapters, the first of which is 'Contract Formation on the Internet: Shattering a Few Myths' by Lars Davies. One thing that struck me about this chapter is that there is a substantial overlap - some five pages - with Terrett's technological introduction. I am puzzled that this was not edited out. The substantive analysis itself seemed reasonably well thought-out although I found that the flippant style began to grate somewhat. The resulting conclusion - that 'contracting on the Internet is a complete mess' - left me wanting to know something about how Davies thinks this mess can be sorted out. Is the mess confined to domestic law? Should resolution be left to the judges or is it necessary for Parliament to step in? Is it useful to tackle the problem at purely domestic level or does the nature and extent of the Internet dictate that it be viewed in a European or even an international context?
The next chapter in this part is 'Software Transactions and Contract Law' by Hector MacQueen. As sole author of two whole chapters, MacQueen's contribution to the book is greater than that of any other contributor. Generally, I found this chapter to be more satisfying than his earlier chapter on copyright. It was intriguing to read that Scots lawyers were as puzzled by aspects of the decision in Beta Computers v Adobe Systems ([1996] FSR 367) as their English counterparts. If I have any problem with this chapter it is this. Given that the book is on the legal implications of the Internet, I would expect this chapter to place much more emphasis on the problem of software that is downloaded via the Internet in circumstances where no tangible medium changes hands. What is it, in law? What terms as to quality and fitness, if any, are to be implied? By what means? A discussion of this highly relevant problem seems particularly apposite following the thought-provoking remarks on the subject made by Sir Iain Glidewell in the Court of Appeal case of St. Albans v ICL ([1996] 4 All ER 481).
A third contribution on the topic of electronic commerce is a chapter entitled 'Legal Barriers to Electronic Contracts: Formal Requirements and Digital Signatures' by Ian Lloyd. Lloyd, one of the country's leading computer lawyers, demonstrates here the clarity and incisiveness of discussion and analysis that has become the hallmark of his writing. Finally, this part contains a chapter on 'The Taxation of Electronic Commerce' by Sandra Eden. The inclusion of this chapter shows just how wide the ramifications of the Internet are for our legal systems. I cannot begin to claim any detailed knowledge of this difficult and challenging area. However, I do know just enough to appreciate that this chapter is useful and well-written.
The fourth part of the book tackles 'Liability for Content on the Internet'. The first chapter in this part is by Lillian Edwards and is called 'Defamation and the Internet: Name Calling in Cyberspace'. This chapter clarified the issue of when and how defamation liability is likely to arise. It explores the conflict of laws dimension well and contains a particularly lucid analysis of the position of internet service providers. The next chapter - 'News Without Frontiers: Pre-Trial Prejudice and the Internet' by Alastair Bonnington takes the form of a short but fascinating discussion about a problem that, up to now I confess, I had not given any thought to. I think that I am right in saying that even Gringras in his otherwise commendably comprehensive 'The Laws of the Internet' does not address the issue that Bonnington raises here.
The third chapter in this part is 'Computer Crime' by Paul Cullen. I am afraid that I found this chapter a little disappointing. The first two sections of the chapter appear merely to rake over some of the existing issues arising under the Computer Misuse Act 1990 without saying much that is of special relevance to the Internet. His third section, on obscenity and pornography, is much more to the point. Sadly, however, Cullen's discussion of this issue ends up being overshadowed by Yaman Akdeniz's excellent and wide-ranging discussion in the very next chapter - 'Governance of Pornography and Child Pornography on the Global Internet: A Multi-Layered Approach'.
The fifth and final part of the book is on 'Electronic Evidence and Procedure'.
It contains only one chapter written by Stuart Gale and entitled 'The Impact
of Information Technology upon Civil Practice and Procedure'. Gale's discussion
of his chosen subject is primarily from the Scottish standpoint. Some of
his observations, though, are clearly relevant for those in other jurisdictions
as well. His analysis predominantly focuses on the position now and in the
near future. He does, however, briefly hint at a number of key, longer-term
issues in his conclusion. I, myself, would have welcomed a much fuller discussion
of these particular issues but, of course, not everyone enjoys crystal gazing
as much as I do!
What, then, is my general impression of this book? As the above examination
demonstrates, the work manages to achieve a good coverage of the subject
matter. The only substantial area that could usefully have been added, I
feel, is that of the implications of the Internet for Data Protection. Turning
to the quality of the contributions, I found the standard to be somewhat
variable, as is often the case with edited works. The book contains many
good contributions. Indeed, some are really excellent. On the other hand,
there are a small number of contributions that are, frankly, rather weak.
Also, I was somewhat unhappy about the amount of overlap that I found. For
example, Terrett's very useful technological introduction obviated the need
for later chapters to go over the same or similar ground again. I can understand
that an overlap would naturally occur when individual papers were prepared
and submitted by the authors for the conference. In my opinion, though, these
overlaps should have been edited out before the publication of the papers
in book form.
But, of course, a book review would not be a book review without a few quibbles. Overall, a timely work such as this, which sets itself the challenging task of exploring the legal implications of the technological, social and economic paradigm shift that is the Internet, should certainly be warmly welcomed.
Bibliography
Gringras, C (1997) The Laws of the Internet (London: Butterworths)