McLean, Deckle, Communications and the Law
The Information Superhighway is a misnomer. Cyberspace is an international "Wild West" of wagon tracks and game trails that quickly erode or suddenly wash away, and saloons and bordellos, or their equivalents. It offers lots of hiding places, and lots of inspiration for the worst in everyone. Caches of gems are separated by wasteland. The law has not arrived yet, but it's on its way.
Internet growth has been so explosive that law has been far from able to keep up. As Zuckman et al. observed in Modern Communications Law, (1) science is faster than law and law lags behind communications technology; but the law's job is to promote certainty and stability and this requires a slow pace. (2)
The arrival of law in cyberspace may clip the wings of cyberspace's original explorers and marginalize them. It may take the fun out of electronic communication for those who love anonymity. It might give prudes some traction. When the law arrives on the frontier, frontier life changes.
In 1998 a federal judge, in one of the small number of Internet-bred disputes to reach the courts, wrote:
This information revolution has ... presented unprecedented challenges relating to rights of privacy and reputational rights of individuals, to the control of obscenity and pornographic materials, and to competition among journalists and news organizations for instant news, rumor and other information that is communicated so quickly that it is too often unchecked and unverified. Needless to say, the legal rules that will govern this new medium are just beginning to take shape. (3)
One challenge will be to preserve most of the freedom now characteristic of the Internet as the law rolls in. As to whether this freedom can be retained, there has to be doubt. As to whether the law will roll in, there is no doubt whatsoever. It always rolls in--if through no one else's agency, then through the agency of those who years earlier protested the possibility of its arrival. The law rolls in because it must, to meet a demand inherent in human affairs, the demand for predictability and limits.
A taste of what is to come and a suggestion of what legal steps will have to be considered can be found in some of the small number of Internet defamation cases to date. Defamation and privacy invasion are the interests most likely to be injured in the Internet environment. (4) For defamation, what appears likely is that existing law will be adjusted to fit the new medium. Without basic changes, however, liability problems will be daunting and will invite painful solutions possibly initiated by legislatures, and jurisdictional questions will demand international cooperation.
The underlying message from the defamation cases to date is that applying law to the Internet is do-able. Cyberspace is not a place where law cannot operate. On the contrary, law will function there quite well.
The Internet defamation cases that have reached American appellate courts so far have addressed three questions: liability, jurisdiction, and definitions. The liability question raised is whether an Internet service provider (ISP) is liable for a defamation committed by one of its content providers. The jurisdiction question is what contacts with a state or federal jurisdiction a defendant must have in an Internet defamation case before a court can extend personal jurisdiction over him or her. The definition question is whether a computer bulletin board can be called a publication for defamation purposes. Also, the cases contain hints that invite speculation as to how other important questions might be answered--a prominent one of which is whether the Gertz rules might be discarded in cyberspace. (5)
On the liability question, an act of Congress has intervened. A provision in the Communications Decency Act of 1996 prohibits treating an Internet service provider as a publisher or speaker. …