Clarke, Tim --- "Book Review - Regulatory Models for Online World" [2001] JlLawInfoSci 19; (2001) 12(2) Journal of Law, Information and Science 282

• BOOK REVIEW
• Regulatory Models for the Online World

BOOK REVIEW

Regulatory Models for the Online World

BY ROLF H WEBER

Kluwer Law International, ISBN: 9041119655;

Price: EUR 70; USD 67: GBP 45

This study by Prof Weber from the University of Zurich presents a useful and thought provoking analysis of the nature of regulation of the Internet. The book is divided into six parts.

In the Introduction Weber debunks the myth that cyberspace can ever be independent. There is no idyllic world, free from government regulation, where people and groups can exist. The online world is part of the offline world. So significant and widespread are its effects that there is no way that governments, industry and other forms of regulation can be avoided. As soon as these effects are felt (eg identity theft, pornography, fraud) in the real world, governments for one will and must intervene.

Part II looks at law as a structural system. This is so in several senses. In one sense, one can distinguish between the substance of the law, the change of the law and enforcement of the law. In another sense, the “legal system is embedded in other socially relevant systems; in particular, cybernorms depend on traditional social norms. (p. 32) The author explores the contributions to legal theory made by Parsons, Habermas and Luhmann. Luhmann’s theory of autopoiesis is seen as especially relevant to cyberlaw. “Luhmann recognizes the ongoing tension between self-reference and external reference in the legal system, particularly between concepts and interests and suggests new strategies for legal regulation, for example by improving the law’s responsiveness to circumstantial needs. Further the legal system should be linked to coded communications of other social subsystems.” (p. 35). In searching for the best regulatory models therefore we need to work towards a legal system that provides for mechanisms allowing for a change in the law. It is also important that the legal system be capable of enforcement.

Part III explores the challenges presented by the online world to the legal system. Weber examines the main characteristics of global networks, the potential differences between real and cyberspace, the limits of law in an online world, and control and sovereignty problems that occur in an online world. According to the author: “The Internet as a new forum for the exchange of information and communication has three [sic] features that distinguish it from previous technologies:

• The Internet makes possible an instantaneous global transmission of messages (including graphic and audio-visual materials).

• The Internet enables individuals and organizations to communicate with a large number of people, offering three different communication channels, namely one-to-one, one-to-many, and many-to-many communications.

• The Internet allows communicating participants to retain their autonomy to a great extent.

• The Internet has become a vehicle for unprecedented access to information through databases, search engines and robots.”

While cyberspace is indeed different, the extent, degree and nature of that difference is debatable. Even more debatable is what all this means in terms of regulation.

Part IV of the study turns to various models of regulation. The author notes that in most countries a combination of various models is employed. These include: no regulation; traditional government regulation, for example by legislation; international agreements; self-regulation and code regulation. These models would be familiar to most readers except for perhaps code regulation, a regulatory theory developed by Lawrence Lessig. Lessig argues that “human behavior is regulated by a complex interrelation between four forces, namely law, markets, social norms and architecture.” (p. 83) While the first three forces are well known, the fourth is architecture. Lessig submits that the code can be described as the design of the software and hardware constituting a network and the communication protocols allowing these elements to interact with each other. The design of the code has a significant influence on human behaviour given architecture is one of the major forces and it influences whether certain activity is easy or hard or even possible. Accordingly a code can do much of the work (in terms of control and regulation) that law used to do. Further, law will increasingly be replaced by code and sovereignty will give way to software. (pp 94-95)

Rulemaking Approaches in an online world is the subject of Part V. Here the author attempts to evaluate the various theories of regulation in terms of their usefulness as models for regulation of an online world. Examined here are such issues as infrastructure, cyber-terrorism, regulation of online content, access to essential facilities, and fraud on the Internet.

Part VI presents a few final conclusions. While they are too numerous to mention some of the key conclusions are:

• Various forms of regulation are required for different online contexts.

• Regulation of the online world must be seen in context and in relation to traditional regulation.

• Nation states should proceed slowly and evolve solutions rather than make radical changes.

• Regulators must build on existing social norms applicable to the majority of participants in the online world.

• The Internet must be viewed as a global form of communication that cannot be divided along the lines of traditional nation-states.

• Code-based changes (in the Lessig sense of the term) are emerging as the single most powerful regulatory strategy.

In conclusion, Regulatory Models for the Online World is an important study that will be useful to all those who are involved in shaping the regulation of the online world.

Tim Clarke