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Contents
Until the development of the user friendly WWW protocol in the early 1990s, the ability to collate information in book, journal or pamphlet form, and then disseminate copies on a large-scale to a world-wide audience, was almost exclusively the province of increasingly monolithic firms of international publishers, and of government bodies and international organisations. In contrast, it is now the case that, by creating one copy on a Web server and allowing others to access it, an individual can publish on a similar international scale with a minimum of cost and effort. It is a change in the ability of the individual to disseminate information that, I think not unfairly, has been likened in some quarters to that which was occasioned by the Gutenberg press, and it is a change that has occurred in well under half a decade(1).
It is in many ways the speed of that change that has created the problems with the law. Firstly, the law itself does not, and indeed cannot, react at such speeds, not least because the necessary knowledge base amongst lawmakers required to reach effective legal solutions is lacking. Indeed, previous attempts by legislators and the judiciary to deal with rapidly developing high technology issues have often exemplified the old proverb "Act in haste, repent at leisure"(2). Secondly, the rate at which individuals have been able to enter this brave new world of international publishing has at present outstripped the rate at which they can be educated in even the basics of the laws relating to publishing in their own countries. The large publishing firms in the traditional media have had decades and in some cases, even centuries to come to terms with both the national and international legal issues surrounding publishing, and how best to deal with them. Thus, even when they occasionally make mistakes, they are usually in a position to avoid, deflect or ameliorate both civil and criminal liability.
Many individuals have entered into electronic publishing on the WWW in utter ignorance of the potential legal implications of their actions, and a number have been rudely awakened to the fact that the law can and will be applied to activities on the WWW, contrary to the oft touted concept by ill-informed media pundits that the Internet is a place where one's actions and activities can have no legal consequence and where there is absolute freedom of speech, and freedom from censorship(3). By way of illustration, during the early development of the WWW protocol, when relatively few people had access to the early web browsers, a number of webpages dedicated to comic strips, television programmes, films, movie personalities, etc. were set up by individuals who wished to demonstrate the functionality of the new protocol. However, these pages were almost always set up with an utter disregard for intellectual property rights. The novelty of the fact that pictures and text could be placed on-line in an easy and accessible manner appears to have completely overshadowed any thought as to whether or not the ability to do those things might in some very real way infringe upon the intellectual property rights of the actual owner of the material.
However, as the WWW began to attract a much wider audience, owners of copyrighted materials were alerted to the fact that their material was being used in this manner. Perhaps more importantly, they became aware that firstly, unlicensed distribution of their material via the WWW might eat into the market for traditional forms of distribution and secondly, there were new revenue generating possibilities on the WWW of which they themselves might want to take advantage(4). It was at this point that the creators of home pages such as the "Unofficial Garfield Homepage" began to receive letters from lawyers representing the owners of intellectual property rights in the material they were placing on-line, threatening legal action unless the unlicensed use of their client's material ceased. This usually led to the rapid removal of the infringing material, a grudging apology, and a "chilling" effect on the activities of would be imitators. It would therefore seem obvious that, when one starts publishing on the WWW, having some knowledge of the potential legal issues that might arise would be useful.
With this in mind, it is worth turning back to the first point of this piece, that the law has not kept pace with the technology. As a nascent law of the WWW has begun to develop, the problems that have arisen in this and other areas of high technology have lead to a questioning, not just of the way in which existing laws are applied to high technology situations, but rather more importantly of the underlying rationale of those laws. Thus we have a situation where, for example, the question of how we apply copyright and other intellectual property rights to high technology, has evolved into more probing questions such as:
Thus, it can be seen that many of the areas of law that are currently relevant to high technology, the Internet, and the WWW, are heading into a state of flux. This article will, in examining certain areas of the law relating to the WWW as they stand at present, inevitably touch upon some of the current problem areas in successfully marrying the law to the technology, where there are few, if any, definitive legal answers to the questions posed, but a myriad of potential possibilities. It should be noted at this point that this document does not claim to be a truly exhaustive survey of the legal issues that may need to be taken into account in this area, which would require a much weightier treatise than this(7). In electronic publishing, as in traditional forms of publishing, there are a myriad pieces of legislation, as well as occasional common law provisions, which must be taken into account, including those concerning liability for content of publications, covering such topics as defamation, obscenity, blasphemy, and provisions with regard to sex discrimination and advertising standards. The areas that are covered here have been chosen because there are either ongoing events, or recent developments in the law, which are of relevance to those working with the WWW. However, the fact that certain areas of the law have been omitted from detailed discussion here should not be taken as meaning that they have no relevance to electronic publishers, for as the magazine Gay News discovered in the late 1970's, there is still life left in the English common law of blasphemy(8). Equally, electronic publishers have to be sensitive to issues that are outside the scope of the laws of the United Kingdom. Anyone wishing to set up as a publisher on the WWW has to take into account the fact that unless the materials that they place on-line are access-limited to certain Internet domains(9), or to fee paying readers(10), they can in theory be read by more than 32 million users in over 130 countries(11).
It should be apparent, given the recent experiences of publishers in the traditional media, that material that is perfectly legal in England may be neither legal nor acceptable elsewhere. In a salutary lesson for publishers in all media, traditional and electronic, the furore over Salman Rushdie's book The Satanic Verses, and the threats issued against both him and his publishers show that, even though English blasphemy law does not provide for Islamic sensibilities, publishing in both national, and international arenas, still holds many potential risks.
The legal issues surrounding WWW publishing are therefore likely to have even more of an international dimension than traditional publishing. It is unlikely that any institution running a website is going to be able to consider every legal rule in every possible jurisdiction, but given the fact that recent cases suggest that in on-line defamation, jurisdiction hopping - the ability to choose a national jurisdiction where one is most likely to succeed with a civil action - may well be an option open to the person defamed, a certain amount of thought will have to be given to limiting potential liability in other jurisdictions. That having been said, the final caveat to be mentioned at this point is that due to the constraints mentioned above, the majority of the issues to be discussed in this article will be examined only with reference to the law of England, Wales and where appropriate, Scotland (12).
1 In Kahin, B. "The Internet and the National Information Infrastructure" in Public Access to the Internet eds. Kahin, B. & Keller J. (1995, MIT Press), Figure 1 at p17 shows that the growth of the use of WWW applications on the NSFNET backbone did not reach an appreciable percentage until April 1993.
2 See for instance s5 of the Civil Evidence Act 1965 relating to computer evidence (this section was repealed by the Civil Evidence Act 1995), the sections of the Copyright Designs and Patents Act 1984 relating to computer programs, and the Computer Misuse Act 1990. Also Charlesworth, A. "Copyright in computer programs: Back to basics?" (1995) 145 New Law Journal 569 and Charlesworth, A. "Between Flesh and Sand: Rethinking the Computer Misuse Act 1990" (1995) 9 International Yearbook of Law, Computers and Technology 31.
3 The most famous phrase in support of this view are variations on the theme of "The Internet perceives censorship as damage and simply reroutes round it." This may well be true with regard to the Internet as a whole, but is of little consolation to an individual tangled in the "damage".
4 See, for instance, the URL http://www.unitedmedia.com/comics/dilbert/ (as of 03/03/96).
5 See Charlesworth, A. "Copyright in computer programs: Back to basics?" op.cit. at note 2.
6 See for example the proposals suggested by Roy N. Freed in his article "Comments on the Green Paper entitled 'Intellectual Property and the National Information Infrastructure' " The Computer Law and Security Report (1995) 11 at 234.
7 See further, the useful reference work by Henry, M. Publishing and Multimedia Law (1994, Butterworths) which has 351 pages examining the legal issues, and a further 447 pages of precedent documents.
8 R v Lemon, R v Gay News Ltd [1979] 1 All ER 898, [1979] 2 WLR 281 (HL). It appears that Scots law contains no legal action for blasphemy.
9 It is possible to limit access to a webserver to specific domains such as .edu or .uk.
10 See for instance the URL <http://www.playboy.com/> (as of 03/03/96).
11 In reality, it is next to impossible to determine the number of individuals with Internet access with any precision.
12 Scots law contains some important differences in some of the areas discussed - notably the law of libel. See for instance Lloyd, I. "Managing legal risks - Liabilities in regard of content of on-line services" Conference paper for Communications and Law '95 29 September 1995. The author does not claim any great expertise in the area of Scots law and is grateful to Charlotte Waelde, lecturer in the Legal Practice Unit, University of Edinburgh for suggestions in this regard.
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