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	Digital Technology Law Journal

Heralding a New Jurisprudence in Cyberspace

Samtani Anil
Assistant Professor, Nanyang Business School, Nanyang Technological University

1. These are exciting times for persons observing the development of information technology law in the world. From every corner of the globe, legislative initiatives are being implemented at break-neck speed to usher in the information age. In the United States, for instance, the National Conference of Commissioners on Uniform State Laws recently passed the Uniform Computer Information Transaction Act, a bill designed to unify commercial laws governing electronic commerce. This bill is now awaiting the approval of state legislatures and it is moot at this stage whether the bill will eventually be passed.[1] In Singapore, hot on the heels of the Electronic Transactions Act 1999, Parliament has recently introduced the Copyright (Amendment) Bill No 27/99.[2] This bill seeks, in part, to address various issues that arise from the use of copyright material in a digital environment.

2. In the midst of this flurry of legislative activity, it is refreshing to come across a court case that has adopted a very 'back to basics' analysis in solving the dispute being brought before it. This is the very recent Canadian case of 1267623 Ontario Inc. v Nexx Online Inc.,[3] a decision of the Ontario Superior Court of Justice.

3. This facts of this case are not unusual. There are two plaintiffs in the case. The first plaintiff, 1267623 Ontario Inc. ('1267623'), is an Oakville home furnishing company that sells directly to customers via the medium of the Internet. The second, Codes Communications Inc. ('Codes'), is a web page design company that works exclusively for and acts as an agent of 1267623. The defendant, Nexx Online Inc. ('Nexx'), is an Internet service provider based in Toronto. Codes had a one-year service contract with Nexx to host 1267623's web page.

4. During the period of the service contract, Nexx received complaints from its Internet users that they were receiving unsolicited bulk e-mail from 1267623. Nexx subsequently informed 1267623 that unsolicited bulk e-mail (also referred to as 'spamming'[4] in Internet parlance) was not permitted and any continuation of this practice might lead to the termination of the service contract. A month later, 1267623 (through a third party service provider in California) resumed its activity of sending out unsolicited bulk e-mail. This was being sent at a rate of 200,000 per day. Five days later, Nexx deactivated 1267623's web site. 1267623 claimed that this was a breach of the one-year service contract and, together with Codes, took out a motion for an interlocutory injunction requiring Nexx to reactivate 1267623's web site. The judge hearing the application, Wilson J., agreed with Nexx's decision to deactivate the web site and refused to grant the injunction sought by 1267623 and Codes.

5. What is noteworthy for our purposes here is that the service contract did not contain any provision specifically forbidding the sending out of unsolicited bulk e-mail. There was a provision in the contract, however, that required all account holders to 'follow generally accepted 'Netiquette' when sending e-mail messages or posting newsgroup messages.' The court agreed with Nexx's argument that the activities of 1267623 constitute a breach of 'Netiquette' and consequently a breach of the service contract. Wilson J.'s decision was no doubt influenced by his observation that 1267623 was unable to find another service provider that would permit bulk e-mail advertising through a third party. In addition, Wilson J. was also particularly mindful of the contract between Nexx and its service provider, Exodus Communications Inc. ('Exodus'), that contains an 'online conduct policy' requiring Nexx to prohibit anyone using its online facilities to send spam and an 'anti-spamming policy statement' that allows Exodus to terminate its account with customers who violate its anti-spamming policies.

6. Although there has been some criticism of the decision on the grounds that it allows Internet service providers to arbitrarily punish behaviour they consider obnoxious,[5] it is submitted that the conclusion reached by the court is correct. There is enough anecdotal evidence to suggest that spamming does run foul of what Internet users loosely refer to as 'Netiquette'. As such, there has clearly been a breach of the provision mandating all account holders to follow generally accepted 'Netiquette' when sending e-mail messages.

7. It is not entirely clear from the judgment if there was a provision allowing Nexx to terminate the agreement upon a breach of this provision or if the court considered that a breach of the term (because of its characterization as, say, a condition or an innominate term) allowed Nexx to terminate the agreement. This is clearly a relevant consideration for the purposes of the decision arrived at by the court but the matter should not detain us further as that is not the focus of this article.

8. Despite some exhortations to the contrary in the Canadian press and journals, it is this writer's humble opinion that, taken on its face, the decision is singularly unremarkable. 1267623 v Nexx is a straight forward decision involving the interpretation of a contractual term, albeit one which refers to 'Netiquette'. Although the case is unique in the sense that the court was called upon to explore the scope and ambit of 'Netiquette', what was essentially in dispute involved no more than a construction of contractual terms and concepts agreed to between willing and consensual parties.

9. What is exciting about 1267623 v Nexx is not the decision itself but the potential for extending some of the arguments canvassed in the case to scenarios different from that present in the decision.

10. For instance, supposing that there was no reference to a provision requiring compliance with 'Netiquette' in the service contract between the parties in 1267623 v Nexx. Should the same conclusion, nevertheless, be reached on the basis that the parties must have intended to have such a term implied into their contract? Extending the argument even further, supposing that an argument of non-compliance with 'Netiquette' is raised in a totally different setting where the plaintiff and defendant do not have a contractual relationship with each other. Should the courts be ready to require compliance with 'Netiquette' in non-contractual settings?

11. Furthermore, and this is probably the most extensive and the most interesting extrapolation of 1267623 v Nexx for our purposes here, should the courts now be ready to refer to principles of 'Netiquette' in all disputes (whether contractual, tortious or otherwise) that involve activities conducted in cyberspace, including those between parties in different jurisdictions.

12. At various stages during the development of the Internet, several commentators have lamented the inadequacy of domestic legal systems in dealing with issues in cyberspace.[6] This is hardly surprising as the principles developed to deal with legal issues in the physical world are sometimes inadequate in dealing with the emerging legal conundrums thrown up in cyberspace.

13. Most countries have sought to respond to the novel legal problems that crop up in cyberspace by enacting new legislation whilst others have sought to extend the ambit of their current laws to cover the novel scenarios occurring in cyberspace. In this flurry of activity, it is not surprising that most countries have not addressed the fundamental issue of whether it would be wise or desirable to apply existing national laws, which have evolved mainly to deal with 'territorial-based' concepts and rights, to the realm of cyberspace.

14. The application and enforcement of domestic laws is premised (to a large extent although not exclusively) on a degree of physical proximity or control. On the other hand cyberspace, by its very definition, is unshackled by physical constraints present in the offline world. Thus, a user of the World Wide Web navigating the information superhighway (by clicking on the hypertext links on the Internet sites she visits) is often oblivious to the physical location of the computer on which the files she is viewing actually resides. A user could therefore be visiting sites residing in countries all over the world without having any easy means of ascertaining the location of these sites. The prevalent use of mirror sites further accentuates the difficulty of determining with precision the actual 'location' of these sites.

15. Although there may be a certain degree of confusion on the applicable laws governing transactions taking place between parties in different states in the physical world, the established rules of the law of conflicts (to a large extent) provide a cohesive, measured and rational response to many of these questions.[7] The same cannot be said for the jurisdictional issues that crop up in cyberspace where a user, in surfing on the World Wide Web, could potentially trigger claims to jurisdiction by a whole host of countries all in the space of a few minutes.

16. Furthermore, as a result of the difference in the substantive laws of the different countries, it is not uncommon for the participants of cyberspace to be completely oblivious to the fact that they may be breaking the laws of multiple jurisdictions in the conduct of their activities. As highlighted above, this difficulty is further compounded by the fact that a user is not always aware of the 'jurisdiction' being visited.

17. 'Netiquette' has the potential to constitute the foundation pillars of a workable uniform cyberspace law[8] (at least uniform in the sense that the laws are uniform across jurisdictions; there is still adequate scope for formulating differing levels of 'Netiquette' to apply to different activities in cyberspace and to various different communities[9] that exist in cyberspace).[10] There would, doubtless, be specialized fields of activity[11] where complete uniformity of laws will not be possible but for most types of transactions uniformity is not only achievable but increasingly desirable to avoid needless confusion in cyberspace.

18. The proposal to use 'Netiquette' as a foundation for the development of a universal body of cyberspace law is not entirely without precedent. In fact, the better part of English commercial law owes its legacy to the lex mercatoria, otherwise known as the law merchant. Lex mercatoria refers to a body of law that had its source in the trading fairs and merchant communities of medieval Europe and the Middle East.[12] As trading fairs evolved in the late 7th century, merchants developed sets of commercial customs to regulate their activities. These customs followed the merchants when they travelled to other cities and gradually over time, these customs gained the force of law as governments recognized that merchants should be able to resolve their disputes by their own rules. The uniformity of the law merchant, however, became diluted as nations started forming towards the end of the Middle Ages and the law merchant tended to be pulled back into national legal systems. Nevertheless, the development and origin of the law merchant holds many interesting lessons for us today where many legal principles seem woefully inadequate to deal with emerging developments in technology. Increasingly, there is a need to look towards the 'players' in the technological revolution to determine the content and the scope of rules that should (or should not, for that matter) be imposed on them.

19. In the same way that early legal precepts drew upon the customs of commercial parties for its evolution, the information technology era presents us with the opportunity of observing the customs and practices of persons in cyberspace in formulating appropriate rules to apply to parties engaged in activities in cyberspace.

20. This exercise would have the added benefit of allowing the laws of cyberspace to develop in a textured manner that takes into account the vagaries, idiosyncrasies, complexities and nuances of cyberspace. In this manner, the law will hopefully be able to encompass the unique norms and customs[13] that have developed in cyberspace and provide a regime that is practical, real and familiar to persons engaged in activities in cyberspace. This is, no doubt, a much more attractive proposition than ramming clearly inapplicable rules and principles developed for a physical world into a setting that is alien and vastly different.[14]

21. This approach also has the added benefit of allowing a 'universal' information technology law to eventually develop free from the shackles of domestic laws.[15] Different national legal systems provide different answers and responses to legal problems and this creates enormous difficulty whenever an individual participates in an activity which potentially subjects him to the overreaching arms of multiple jurisdictions. A uniform law that applies equally to all jurisdictions would help to introduce a degree of sanity to the conduct of activities in cyberspace. In addition, the emergence of a uniform cyberspace law may go some way in minimizing the prospects of a decision, given in one jurisdiction, being unenforceable in another jurisdiction on the grounds that the decision fails to adhere to minimum standards of law.

22. Judges and other adjudication bodies may, of course, adopt differing perceptions of what this 'universal' law is and therein lies some potential for the law to develop in divergent paths in different jurisdictions.

23. In order to overcome this difficulty, it is suggested that the practice of courts when interpreting the provisions in multilateral treaties or conventions be followed. In this regard, it should be noted that the principle of good faith imposes on every court that is hearing a dispute involving the provisions of a multilateral treaty the obligation to harmonize its decision with those of other courts and, where there are conflicting precedents, to harmonize the precedents. In any event, if the lessons learnt from the development of the lex mercatoria is anything to go by, over time there is often some degree of consensus on many, if not most, commercial issues. The argument that courts in different jurisdictions will often adopt contradictory interpretations of the law is, in practice, an overstated one and should not be used to hamper the development of a uniform and universal body of cyberspace law.

24. 1267623 v Nexx holds very interesting lessons for us only if we are willing to see the myriad of possibilities beyond it. It is only hoped that subsequent decisions involving legal issues in cyberspace do not end up in the dockets of an unimaginative and conservative judge who may well adopt a myopic stance and confine 1267623 v Nexx to its facts. This would only serve to hamper the development of a new jurisprudence in cyberspace that has so much more potential than the lacklustre approach of pigeon-holing novel issues that crop up in cyberspace into pre-existing categories of law meant primarily for the physical world.

    Notes

    [1] In July 1999, the National Conference of Commissioners on Uniform State Laws (NCCUSL) in the United States of America passed the Uniform Computer Information Transactions Act (UCITA). The UCITA immediately drew the ire of many consumer groups, software developers, and information technology organizations. The NCCUSL essentially works to unify American state laws and its recommendations are generally adopted by the states. The UCITA would allow software vendors to repossess software by disabling it remotely, and to disclaim warranties. It would also prevent the transfer of software licenses from one party to another without vendor permission, and will outlaw reverse engineering. Critics claim that the development of the law was influenced by software manufacturers to the detriment of competing interests.

    [2] The Copyright (Amendment) Bill No. 27/99 (hereafter 'the Bill') was read for the first time on 3 August 1999. The Bill has yet to be debated fully in the Singapore Parliament but it is envisaged that the Bill will be passed into law in exactly or substantially the same version in which it was introduced. Once passed, the Bill will apply retrospectively from 16 April 1998. This Bill comes hot on the heels of other legislative initiatives to bring Singapore's information technology laws in line with international standards and norms. For instance, the Electronic Transactions Act 1998, which took effect from 10 September 1998, was passed to provide for a comprehensive legislative framework catering to electronic transactions, certification authorities and digital signatures: see generally Tan, K H, 'Breaking New Ground: The Electronic Transactions Act 1998' (1999) January, Asia Business Law Review 64. In addition, the Computer Misuse (Amendment) Act 1998, issued on 24 July 1998, attempts to strengthen the level and nature of the protection of computer systems. This is done by extending special protection to designated computers, bolstering the existing penalties provided in the Computer Misuse Act 1993 by making them proportionate to damages caused by the offence and by introducing two new offences of securing or obstructing access or disclosing access codes. The Bill has attracted its fair share of controversy. In a letter addressed to the forum page of the local press (The Straits Times, 26 August 1999, 45), one Mr Ngiam Shih Tung criticized the Bill for upholding the rights of copyright owners at the expense of the public. Mr Ngiam criticized the amendments for enabling 'a copyright owner [to] demand ... an [Internet Service Provider to] remove a website if he believes that his copyright has been infringed [without the] need to prove his charges in court or even to show reasonable cause to believe that copyright has been infringed.' In a quick rebuttal, the Deputy Director of the Ministry of Law expressed his views that these fears were unfounded. The Deputy Director canvassed the position that no 'new powers are given to copyright owners to demand removal of materials.' On the contrary, the amendments were stated to 'give network service providers additional protection against copyright lawsuits.' This reply triggered an immediate retort from Mr Ngiam (The Straits Times, 31 August 1999, 24) who criticized the interpretation proffered by the Deputy Director as one which 'appears to be reading the letter of the amendments without appreciating the effect that the changes would have on the behaviour of Internet Service Providers.'

    [3][1999] O.J. No. 2246 (Court File No. C20546/99). The decision can be viewed at <http://legal.web.aol.com/decisions/dljunk/nexxorder.html>.

    [4] 'Spam' refers to unwanted e-mail and mainly refers to commercial solicitations. In recent times, there has been a public outcry against spamming: users are frustrated at the volume and/or fraudulent nature of spam they receive whilst network service providers, to pacify their users and to enable a smooth operation of their services, have had to spend considerable time and money to accommodate and/or remove spam from their servers. This anger against spammers has triggered several fairly high profile suits such as Cyber Promotions, Inc. v America Online, Inc. 948 F. Supp. 436 and CompuServe, Inc. v Cyber Promotions, Inc. 962 F. Supp. 1015. These cases have triggered calls for anti-spam legislation which range from an outright ban on unsolicited commercial e-mail to mandating the labeling of these messages.

    [5]In the United States, spammers have argued that they have a First Amendment Right to send unsolicited e-mail to the subscribers of Internet service providers. Thus far, this argument has found little favour with the American courts: see Cyber Promotions, Inc. v America Online, Inc. 948 F. Supp. 436 and CompuServe, Inc. v Cyber Promotions, Inc. 962 F. Supp. 1015. Observers are anxiously waiting for the outcome of the case of Intel Corp. v Hamidi (No. 98AS05067, California Superior Court filed on October 6, 1998) to see if this position will be reversed.

    [6]Some commentators have argued that cyberspace is a unique and novel environment that cries out for a new set of rules tailored specifically for it. For example, it has been argued that the Internet should be governed in a manner suited to its particular history, customs and technological capabilities: see Johnson, D & Post, D, 'Law and Borders - The Rise of Law in Cyberspace' (1996) 48 Stanford Law Review 1367. Adherents of this school of thought vehemently oppose attempts to apply conventional models of regulation to the Internet. Some commentators adopt a 'middle-path' and argue that the law of cyberspace should evolve slowly through a careful application of common law principles, with particular attention paid to the aspects of cyberspace that make transactions in cyberspace unique: see Lessig, L, 'The Zones of Cyberspace' (1996) 48 Stanford Law Review 1403 and Lessig, L, 'Symposium: Emerging Media Technology and the First Amendment: The Path of Cyberlaw' (1995) 104 Yale Law Journal 1743. The last category of commentators share the opinion that existing legal principles are adequate in dealing with issues relating to transactions conducted in cyberspace: see Easterbrook, 'Cyberspace and the Law of the Horse' (1996) University of Chicago Legal Forum 207.

    [7] It should be noted, however, that the law of conflicts, as applied to the physical world, is by no means free of its controversies and difficulties and this is one area of the law where calls for reform continue to flow almost unabated.

    [8] There should, also, be harmonization of the private international laws of the different jurisdictions so that parties are better able to determine the countries that could legitimately exert jurisdiction over their activities. It should be noted that there continues to be considerable controversy on the appropriate approach to adopt in determining issues relating to personal jurisdiction. The difficulty is further compounded by the different conceptual approaches, such as the realist, representational, post-modern and liberal-constructivist approaches, that could be employed when dealing with jurisdictional issues.

    [9] As can be easily appreciated, there are various different types of communities that exist. These communities also evolve over time. Of particular significance is the current popularity of communities that deal in less interactive and more commercial exchanges as contrasted to the popularity of the interactive and non-commercial communities that dominated the Internet in the past. It should also be appreciated that the Internet allows a single individual or corporate entity to take on various different roles depending on the context and circumstances and one could be a member of different communities in cyberspace. See, generally, Shapiro, A 'The Disappearance of Cyberspace and the Rise of Code' (1998) 8 Seton Hall Constitutional Law Journal 703 and Lessig, L 'The Zones of Cyberspace' (1996) 48 Stanford Law Review 1403.

    [10] Some commentators have rightly suggested that it is not apt to apply the traditional, territorial and geographical conception of community in the physical world to cyberspace, where an alternative 'experiential' conception of community seems to exist: see Falk, J 'The Meaning of the Web' (1998) Information Society 285 and Giordano, P 'Invoking Law as a Basis for Identity in Cyberspace' (1998) Stanford Law Review 1.

    [11] Such as securities regulation and activities impinging on issues pertaining to civil and constitutional liberties.

    [12] For a detailed and incisive description of the law merchant, see generally Trakman, Leon, The Law Merchant: The Evolution of Commercial Law (Littleton, CO: Rothman, 1983) and Benson, B, 'The Spontaneous Evolution of Commercial Law' (1989) Southern Economic Journal 644.

    [13] These include norms such as open participation, consensus-building, a prioritization of freedom of speech and grassroots organization that have become identifiable with the Internet.

    [14] As one commentator aptly puts it, 'advanced computer technology undermines the assumptions of older categories [of the law]. For example, interactive networked hyperlinked media eviscerates the idea of authorship, and with it one of the fundamental concepts of ... copyright law ... Second ... advanced computer technology conflates distinctions that made much sense under older regimes and which informed law that grew up in the older regimes. New technology eviscerates the distinctions between public and private, the telephone and mail, the written and spoken word, broadcasting and point-to-point communications, and between the publication, consumption, and distribution of information ... Third, increased automation, with a concomitant reduction in the role of effective human oversight, creates difficulties in the assignment of liability or legal blame ... The legal system is inhibited in its use of traditional metaphors and analogies for a fourth reason. The pace of technological change is not only rapid, it is, more importantly, highly uneven. Whereas we may have a relatively coherent and congruent set of assumptions about the way the physical world works, we do not have that common basis in the fabricated world of the computer, in what we might call the electroverse.': see Karnow, C E A, Future Codes: Essays in Advanced Computer Technology and the Law, (United States: Artech House, 1997).

    [15] It has been argued that complete harmonization of the law pertaining to cyberspace may be difficult to achieve because of the lack of an emerging consensus on some key issues and areas of the law such as formality requirements, joint liability of intermediaries and the law of conflicts: see Reed, C 'Internet Contracting' (1999) February/March, Computers & Law 36. It is suggested that these problems are not insurmountable and, as an appreciation of the importance of having uniform laws apply to transactions in cyberspace develops, countries will come under increasing pressure to take steps to harmonize their laws. It is noteworthy that we are already starting to see some strains of convergence in hitherto controversial areas of the law, such as the effect of an offer and acceptance in the formation of contracts, copyright issues in relation to hyper-text linking and framing and the liabilities of network service providers.