Lim, Yee Fen --- "Information Technology Law in Australia by Olujoke Akindemowo" [1999] SydLawRw 28; (1999) 21(4) Sydney Law Review 703

INFORMATION TECHNOLOGY LAW IN AUSTRALIA by Olujokè Akindemowo, LBC Information Services (Sydney), 1999, ISBN 0 455 21632 0

YEE FEN LIM [*]

Technology Law is a term that has been in use for nearly two decades. It refers to law which concerns the use of technology and includes such diverse areas as biotechnology and computer technology. The use of technology law as a term for a legal area has faded somewhat this decade, giving way to the term information technology law, which encompasses the computer technology areas of technology law, while the other areas of technology law have been subsumed under other legal areas. For example, bio-technology law is now generally regarded as part of medical law. Information technology law then is a relatively young area of law and as such, only a small number of books have been published in Australia in the area and these cover only some of the areas of information technology law. As the author of Information Technology Law in Australia rightly states in the opening paragraphs of the preface to the book, there is no comprehensive text dealing with information technology law in Australia and it is with this in mind that the book was written. This book is an attempt to draw together the various areas of law that come under the rubric of information technology law but it falls short of being a comprehensive text in the area. It is a useful introductory text to the ever increasing volume of law referred to as information technology law and it would be suitable for information technology professionals and those in the legal profession wanting a general overview of the area.

Information Technology Law in Australia consists of seven chapters, six of which deal with substantive areas of law. The introductory chapter contains some lengthy discussion on whether there is such a field of law called information technology law. The author centres the discussion around the contention that many commentators dismiss information technology law as a legitimate field in its own right on the basis that the issues raised are not novel (p7-11). This however, does not accord with the position of many such commentators as there is a general acceptance that the issues raised are novel but that the novel issues can be dealt with satisfactorily by the existing law. Hence, according to these commentators, there is no need for a ‘new’ area of law as such because the extension of the current discrete areas of law to information technology would adequately take care of the novel issues. The author seems to take the view that information technology is so novel that the bulk of the existing law is not capable of resolving the novel issues raised and gives the evolution of copyright law as a parallel. This position can hardly be justified; take the issue of internet domain names and the applicability of trademark law for example. Internet domain names are and can be used for a variety of purposes and they undoubtedly raise novel issues. Where those novel issues impinge upon some right already conferred by trademark law, courts and legislatures such as those in the United States will extrapolate the existing law. Not all parties may be happy with the end result of the extrapolation but it does not mean the current law is not capable of dealing with the novel issues. Despite taking this stance throughout Chapter One, at the conclusion of the chapter the author retreats to the position that perhaps what is required is the novel application of existing legal concepts. Indeed, this seems to be the approach aimed at in the rest of the book where the legal areas of information technology law are discussed in discrete pigeon holes. Ultimately, the author recognises that information technology law is in fact a collection of existing areas of law drawn together by the significant common denominator of computers.

Chapter two of the book entitled ‘Commercial Obligations and Liabilities’ is interestingly structured and follows a transactional trail from the designer (such as a software developer) to the ultimate purchaser. The author achieves something of a miracle with the discussion of employment law, tort law, consumer protection law and contract law in the space of 54 pages. In effect, the chapter is a general overview of these areas of law and picks up on the parts of these substantive areas which deal with computers. As a result of this whirlwind pace, much detail is glossed over with some relevant areas being omitted altogether. For example, the section on misrepresentation is alarmingly thin, running just under four pages and with no mention of the common law and equitable remedies available. The last two sections in Chapter Two dealing with ‘The Customer’ and ‘Remedies’ also deserve more attention than the three pages devoted to it. Chapter Two covers the many areas of law which are inherently pertinent to information technology even though they may not be the fashionable or hot topic areas. It is these legal areas that make up the core of information technology issues raised by the multitude of common everyday transactions; it is unfortunate that they are often overlooked in the mainstream literature on information technology law. Much of commerce is driven by commercial law and this chapter would have benefited from a deeper treatment of the law.

The third chapter of Information Technology Law in Australia provides a thorough account of the Australian financial and payment systems. It assumes little or no knowledge of the area and the reader is taken through the relevant systems in a well-structured manner. The role of digital currency is coherently discussed and it is located within the theoretical framework of the function of money. Although this chapter is on the domestic payment system, an examination of the international scene concerning digital cash would not have been misplaced. Chapter Four on intellectual property law covers the well-trodden ground in those areas which throw up computer issues. Like Chapter Two, much time is spent documenting the general law relating to copyright, trademarks and so on. The back cover of the book leads prospective readers into the belief that a number of significant international developments such as the 1996 WIPO Copyright Treaty would be explored critically and in detail. It was therefore disappointing to find only two paragraphs mentioning the WIPO Treaty. In this chapter, there is also a disturbing omission of references to some of the leading intellectual property works dealing with information technology already published: for example, Samuelson P, ‘Digital Media and the Changing Face of Intellectual Property Law’ (1990) 16 Rutgers Computer and Technology Law Journal 323; Katsh ME, Law in a Digital World chs 4, 8, 9 (New York: Oxford University Press, 1995).

The sixth chapter deals with the protection of data, in other words, privacy law; it presents itself well as a concise summary of the area. The starting position of any discussion of the concept of privacy in Australia lies in Australia’s obligations at the international level. This, as the author argues, requires an analysis of the numerous international treaties and guidelines sponsored by international organisations such as the Organisation for Economic Cooperation and Development and the European Union. The author’s thesis in this area is that although these instruments are only binding on the member countries, they will nevertheless establish the contemporary international minimum standards for the protection of data due to trade requirements. In the case of Australia, the adherence to these minimum standards can be best achieved through national legislation by the Commonwealth parliament under a number of heads of power such as the external affairs power. The section on the international arena draws together a number of key international documents but some of the references could have been better cited to enable the reader to locate the primary materials. Overall, the chapter provides a good condensed account of the current state of privacy law in Australia in the private and public sectors.

Chapter Seven (and the final chapter of the book) concerns procedural matters. Half the chapter deals with computer generated evidence and the admissibility of such evidence under the common law and under the Evidence Acts. Again, in advertising materials for the book and on the back cover of the book, one is led to believe that the 1996 UNCITRAL Model Law on Electronic Commerce is thoroughly discussed, but in fact there are only two small paragraphs mentioning the Model Law. In eight pages this half chapter is unable to elucidate in any detail the workings and problems of the provisions of the Evidence Acts pertaining to electronic evidence, and hence this half chapter is essentially a cursory look at the evidential issues raised by the use of computers.

The second half of Chapter Seven deals with jurisdictional issues and is divided into two sections. The first section covers the Australian court system, court hierarchy and choice of law issues, while the second section touches upon internet related issues. For a book on information technology law it was disappointing to see only three pages devoted to internet related jurisdictional issues. The concept of presence within jurisdiction is mentioned very briefly, with the author concluding that activities such as the commission of a tort, breach of a contract and the perpetration of a fraud upon consumers should be deemed insufficient for the exercise of jurisdiction over absent defendants. In essence, the author’s position is that the existing law governing considerations of whether a defendant has sufficient physical contacts with a forum should continue to be applied to the nonphysical realm of the internet. This is a surprising conclusion to a book which began in its first chapter by arguing for the need of new laws and new regimes to cover activities associated with computers. The author does not even attempt to discuss whether there might be policy considerations which warrant the novel application of the existing law. It is a pity that no reference was made to a number of seminal works published in the United States in the area even though numerous American cases were referred to. The works of Henry H Perritt Jr and Trotter Hardy are directly relevant here. For example, Perritt HH, Law and the Information Superhighway chs 12 and 13 (New York: John Wiley & Sons, 1996); Perritt HH ‘Jurisdiction in Cyberspace: Intermediaries’ in Kahin B & Neeson C (ed) Borders in Cyberspace (Cambridge: MIT Press 1997), Hardy T, ‘The Proper Legal Regime for Cyberspace’ (1994) 55 U Pitt L Rev 993. With the exponential growth of commercial and other activities on the internet in the last five years, there will undoubtedly be an increase in internet related litigation. The litigation may be between private entities and individuals or they may involve statutory authorities attempting to maintain particular regulatory regimes. In any case, national laws and domestic sovereignty will be challenged by the need for enforcement across strict national boundaries.

The last remaining chapter of Information Technology Law in Australia to be mentioned is the fifth chapter which essentially deals with computer crime issues including a section on internet abuse. Curiously enough, it also contains a section entitled ‘A Recent Off-Shoot: Internet Law?’ which begins:

The term “Internet law” has recently come into use as a descriptive title for a certain grouping of issues. These consist of a selection of legal issues and legislative provisions raised by the interplay of matters relating to (a) the role of the Internet as a means or venue for the commission of wrongful or offensive actions, (b) the occurrence or potential occurrence of such actions, and (c) the effects of such actions upon particular computers or persons. (p230)

The author gives no indication of where the term ‘Internet Law’ has been so used. It is indeed a very narrow interpretation of the term and perhaps a somewhat inaccurate one. Why should the term ‘internet law’ refer only to ‘wrongful or offensive actions’ on the internet? The author gives no reasons nor references to support this definition. At the beginning of the book, the author defined information technology law to include any area of law that has the common denominator of legal issues raised by the use of computers. Internet law then, at its simplest, should refer to any area of law which touches upon legal issues raised by the use of the internet and may deal with all kinds of actions, transactions, provision of information and so on. Hence, internet law can refer to intellectual property law, contract law, censorship law and any other area of law which has some connection with the internet. There is no logical rationale for restricting the term to refer only to wrongful or offensive actions. Internet law may or may not be a field of law yet but it promises to become one. Its distinguishing mark will be the cross-border legal conflicts arising from the borderless nature of the internet coupled with the conundrums posed by media convergence.

The author has taken on an ambitious project. Ambitious, because information technology law is like no area of law before it. Most fields of law have modest beginnings. They can originate from an existing area of law but they become a field in their own right by slowly developing their own jurisprudence. For example, employment law had its beginnings in contract law but its status as a separate area of law was only achieved over time. The evolution of most fields of law is a slow one. Information technology law has not followed this traditional slow evolutionary path. Information technology law has developed very quickly into a field by borrowing or taking its contents from many other legal areas. It is an area of law that is made up from many areas of existing mainstream areas of law. It is in essence a collection of disparate areas of law hung together by the common element of computers. As such, any attempt to write a text on this new field of law is no easy task. It requires thorough knowledge and research of many areas of law which numbers more than what the author conceives. Whilst Information Technology Law in Australia is no comprehensive text, it is indeed a gallant attempt at one.

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[*] Department of Law and Justice, Macquarie University