No Borders: How the Web is Changing the Way People See the Law
November 20, 2012 Leave a comment
Jurisprudence – the study of theories of law – has sought, over a period of centuries, to explain why people obey rules. The advent of the World Wide Web is a new phenomenon but one which, arguably, has resulted in a paradigm shift in relation to the way law is perceived by a significant proportion of the global population.
Why laws are obeyed is the subject of wide ranging philosophical debate. In very broad terms, there are two extremes encountered in relation to the theorization. Natural law theories encompass the idea that there are natural limits to the powers of the legislators. By contrast, legal positivism suggests there is no necessary connection between law and morality; the force of law is derived from some basic facts about how societies tick.
Between the two extremes exists a plethora of theories in relation to the development of law. A largely consistent theme running between them is the significance of the nation state. This is in terms of both the role of the state as the platform for the existence of a legislature and a judiciary together with it being an expression of societies coming together in formal, recognized groupings. It is the perception of the state and the relationships between states that is being changed in a very fundamental way by the internet.
The pace of proliferation of the internet has been truly remarkable.
In a period barely spanning a period of 50 years it has advanced from being an esoteric research project to becoming a global phenomenon that affects the functioning of virtually the entire planet irrespective of whether individuals have access or not.
The World Wide Web, as we now experience it, is a global system of connected computer networks that communicate with each other via a set of standardized protocols. Several billion people are now regular users and able to access a broad array of information services and resources.
There is no central controlling mechanism in relation to the technical operation of the internet. Each constituent network has its own rules of operation. It is only the communication protocols that have universal application. This is reflected in the absence of common rules for the utilization of the internet.
As a globally distributed network the web operates without a central governing body. The Internet Corporation for Assigned Names and Numbers (ICANN) regulates the technical protocols but it does not have any control over the legality of internet content.
It is in this context that changes are being seen in relation to how web users perceive legal parameters.
As suggested, the internet is supra-national. It is often seen as being, in some way, above the law. Some regard both freedom of speech and unrestricted access as fundamental elements of the internet that transcend the restrictions that nation states impose by legislating in order to protect other rights.
An example of this is seen in relation to the fierce debate that has raged since the 1990’s about the law of copyright. The development of peer-to-peer file sharing by web sites such as Napster meant users could download, for example, music files without royalties being paid to the holders of the relevant intellectual property rights. Despite the best efforts of legislators and enforcement authorities in more recent years, many internet users hold to the idea that because the content is available “out there” it is somehow exempt from local regulation.
In the context of a short article it is easy to fall into the trap of over-simplification. What seems to be clear, however, is that jurisprudence has to come to terms with a new framework in which individuals relate to each other.
What do you think about the relationship between the internet and the law? Who is responsible for legislating such a far-reaching entity? Let us hear your insight in the comments!
Jenny Jones writes on behalf of BCL Legal. She has a wealth of legal experience and is well positioned to provide up-to-date news and advice on digital and social media topics from her time spent working within the industry.