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At present, there is there is no universal de?nition of defamation and there is not a set of elements that define defamation for judiciary concerns. How would a universal definition of defamation be beneficial?

The Law of Electronic Commerce
Written specifically for legal practitioners and students, this book examines the
concerns, laws and regulations involved in electronic commerce.
In just a few years, commerce via the World Wide Web and other online
platforms has boomed, and a new field of legal theory and practice has emerged.
Legislation has been enacted to keep pace with commercial realities, cybercriminals and unforeseen social consequences, but the ever-evolving nature of new
technologies has challenged the capacity of the courts to respond effectively.
This book addresses the legal issues relating to the introduction and adoption of
various forms of electronic commerce. From intellectual property, to issues of
security and privacy, Alan Davidson looks at the practical challenges for lawyers
and commercial parties while providing a rationale for the underlying legal theory.
Alan Davidson is Senior Lecturer in the School of Law, University of Queensland.
He is also a solicitor and barrister of the Supreme Court of New South Wales and
the High Court of Australia.
2
The Law of Electronic Commerce
Alan Davidson
3
CAMBRIDGE UNIVERSITY PRESS
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Delhi
Cambridge University Press
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
www.cambridge.org
Information on this title: www.cambridge.org/9780521678650
© Alan Davidson 2009
First published in print format 2009
ISBN 978-0-511-70477-2 mobipocket
ISBN 978-0-511-70531-1 eBook (Kindle edition)
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University Press does not guarantee the accuracy of such information thereafter.
4
Contents
Acknowledgements
Table of cases
Table of statutes
1 The law of electronic commerce
Electronic commerce law
Internet use in Australia
Judicial consideration in Australia
Further reading
2 The rule of cyberspace
Cultural and environmental juxtaposition with cyberspace
Cyberspace
The rule of law and the rule of cyberspace
The rule of law
The rule of cyberspace
Spontaneous (or endogenous) order
A code of cyberspace
Information wants to be free
Conclusion
Further reading
3 Electronic commerce and the law of contract
UNCITRAL Model Law of Electronic Commerce
Legislation
Australia
New Zealand
Provisions of the Electronic Transactions Acts
Electronic contracts
Common law
Application of the common law
Exemptions
Exemption does not equate to a paper requirement
New Zealand
Validity of electronic transactions
Writing
Australian provisions
New Zealand
Signatures
Australian provisions
New Zealand provisions
Production of documents
Consent
5
Example
Other countries’ provisions
Comment
Retention of information and documents
Retention in paper form
Retention in electronic form
Time and place of dispatch and receipt of electronic communications
Time of dispatch
Time of receipt
Acceptance by electronic communication and the postal acceptance rule
Place of dispatch and place of receipt
Attribution of electronic communication
Originals
Electronic Case Management System
Comment
Further reading
4 Shrinkwrap, clickwrap and browsewrap contracts
Shrinkwrap
Clickwrap
Browsewrap
Electronic agents
Further reading
5 Electronic signatures
Traditional signatures
Modern signatures
Electronic signing
Acceptance at face value and risk
Functions of signatures
Electronic Transactions Acts
‘Electronic signature’ defined
Uses
Security of electronic signature
Digitised signatures
Digital signatures
Australian Business Number Digital Signature Certificates
Secure Socket Layer – Transport Layer Security
Applications
Further Reading
6 Copyright issues in electronic commerce
The nature of copyright
Exclusive rights
Infringement
Substantial part
6
Objective similarity and causal connection
Software
Right of communication
Exemptions
Libraries and archives
Educational statutory licences
Temporary reproductions
Enforcement measures
Time-shifting, format-shifting and space-shifting
Piracy and enforcement
Peer-to-peer file sharing
Authorisation
Carrier protection
Hyperlinking
Further reading
7 Electronic commerce – trade marks, patents and circuit layouts
The nature of trade marks
Infringement
Hyperlinking
Framing
Meta-tags
Patents for software and internet processes
Developments in the United States
Developments in Europe
Developments in Australia
Patents and hardware
Circuit layout rights
Further reading
8 Domain names
Mapping cyberspace
Business identifiers
The nature of domain names
Top Level Domains names (TLDs)
Generic Top Level Domain Names (gTLDs)
Country Code Top Level Domain names (ccTLDs)
.au
.nz
.us
.uk
.in
TLD rationale
ICANN
InterNIC
7
Whois
ICANN Ombudsman
Nexus requirements
gTLD nexus requirements
.au nexus requirements
.nz nexus requirements
.us nexus requirements
.uk nexus requirements
.in nexus requirements
9 Domain name disputes
Cybersquatting
Dispute resolution
Remedies using the court process
Cause of action
US experience
International approaches
Domain name passing off
Oggi Advertising Ltd v McKenzie
Marks & Spencer v One in a Million
Developments
Trade Practices Act relief
Fraud
Conclusion
Further reading
10 Uniform domain name dispute resolution policies
WIPO internet domain name reports
UDRP rules
Identical or confusingly similar
Trademark or service mark
Registrant has no rights or legitimate interests
Registration and use in bad faith
UDRP process
ccTLD dispute resolution policies
auDRP
.nz DRSP
usTLD Dispute Resolution Policy
.uk DRSP
INDRP
Additional policies
Practical ramifications
Conclusion
Further reading
11 Jurisdiction in cyberspace
8
Rules of private international law
Forum non conveniens
Dow Jones v Gutnick
Adventitious and opportunistic
Effects test
Australian cases
Early US experience
Universal rights
Alternative approaches
Single publication rule
Substantial publication
Uniform defamation legislation – choice of law
Conclusion
Further reading
12 Defamation in cyberspace
Defamation principles
Defamation reform
Defamation in cyberspace – actions and issues
Statute of limitations
Single publication rule
Single controversy principle
Single cause rule
Adventitious or opportunistic conduct
Jurisdiction for defamatory statement
Conclusion
Further reading
13 Privacy and data protection in cyberspace
Information wants to be free
Privacy and regulation
Information privacy
Australia
National Privacy Principles (NPP)
Data protection
Victoria
New South Wales
Queensland
Western Australia
South Australia
Tasmania
Northern Territory
Australian Capital Territory
Abuses
Cookies
9
Web bugs
International Covenant on Civil and Political Rights (ICCPR)
Data protection
Review
Personal privacy
New Zealand
United States
Final comment
Further reading
14 Electronic mail and online presence
Email
Attachments
Authentication
Language
Viruses
Disclaimers
Risk assessment
Service of documents by email
Time and place of dispatch and receipt
Web page presence
Liability for online material
Disclaimers – conditions of use
Information to be placed on pages for practical and legal purposes
Newsgroups and mailing lists
The professional office and email
Backup copies
Maintain supervisory checks
Records and costing
Confidentiality
Internal trial
Confirmation of sending
Access to files
A new form of expression
Conclusion
15 National electronic surveillance
The USA PATRIOT Act
Australian response
Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002
(Cth)
Security Legislation Amendment (Terrorism) Act 2002 (Cth)
Suppression of the Financing of Terrorism Act 2002 (Cth)
Criminal Code Amendment (Suppression of Terrorist Bombings) Act
2002 (Cth)
10
Telecommunications Interception Legislation Amendment Act 2002 (Cth)
Criminal Code Amendment (Offences Against Australians) Act 2002
(Cth)
Australian Security Intelligence Organisation Legislation Amendment
(Terrorism) Act 2003 (Cth)
‘Terrorism act’
Anti-Terrorism Act 2004 (Cth)
Surveillance Devices Act 2004 (Cth)
Anti-Terrorism Act (No. 2) 2005 (Cth)
Ambassador for Counter-Terrorism
Memorandums of Understanding on counter-terrorism
International Conventions
Conclusion
16 Cybercrime
The Commonwealth Criminal Code and computer crime
Telecommunications services
Child pornography
Assisting suicide
Police and security powers
Investigative powers
State legislative offences relating to computers
New Zealand
Child pornography – international
Internet gambling
The problem
International Gambling Act 2001 (Cth)
Comment
Cyberstalking
International approach to cybercrime
Spam
The problem
Spam Act 2003 (Cth)
New Zealand response
US response
EU response
Criticisms
National Do Not Call Register
Identity fraud
Identity fraud and terrorism
Technological response
Governmental response
Phishing
Further reading
11
17 Evidence of electronic records
Evidence of electronic records
Background
Secondary evidence rule
Evidence legislation
Legislation abolishing the ‘original document’ rule
International perspective
Hard copies of electronic records as evidence
Originals and copies – envelopes and attachments
Conclusion
Further reading
18 Censorship – Broadcast and online content regulation
The Australian Communications and Media Authority
The internet
Radio and television
Telephones
Licences
Consumers
Industry
Internet content
US cases
Australia
Referral to law enforcement agencies
Take-down notices
Service-cessation notices
Link-deletion notices
Industry codes
Complaints and investigations
Conclusion
International comparison
UK
EU
Television
ACMA’s enforcement powers
Television Classification Guidelines in practice
Radio broadcasting codes and breaches
Codes of practice
Investigations
Encouraging violence and brutality – the Alan Jones case
Conclusion
19 An international perspective
UN Commission on International Trade Law (UNCITRAL)
The UNCITRAL Model Law on Electronic Commerce
12
The UNCITRAL Model Law on Electronic Signatures
The UN Convention on the Use of Electronic Communications in
International Contracts
World Trade Organization (WTO)
General Agreement on Tariffs and Trade (GATT)
The Organization for Economic Cooperation and Development (OECD)
The Asia Pacific Economic Cooperation (APEC)
Summary
International Chamber of Commerce (ICC)
International Organization for Standardization (ISO)
International Labour Organization (ILO)
International Telecommunication Union (ITU)
UN Centre for Trade Facilitation and Electronic Business (UN/CEFACT)
UN Conference on Trade and Development (UNCTAD)
UN Educational, Scientific and Cultural Organisation (UNESCO)
Universal Postal Union (UPU)
World Bank
World Customs Organisation (WCO)
World Intellectual Property Organisation (WIPO)
Appendix A Electronic Transactions (Victoria) Act 2000
Appendix B UNCITRAL Model Law on Electronic Commerce
Appendix C Selected provisions Copyright Act 1968 (Cth)
Appendix D ICANN Uniform Dispute Resolution Policy (UDRP)
Appendix E .au Dispute Resolution Policy (auDRP)
Appendix F National Privacy Principles
Index
13
Acknowledgements
On one analysis electronic commerce emerged in mid 19th century with the
invention of the telegraph and telephone. But it was not until the creation and
growth of computers and the internet, and the development of this realm called
cyberspace, that the legal system faced real challenges in private, public and
criminal law. Speaking about cyberspace, ‘the new home of the mind’, John Perry
Barlow declared:
Ours is a world that is both everywhere and nowhere, but it is not where
bodies live…In our world, whatever the human mind may create can be
reproduced and distributed infinitely at no cost. The global conveyance
of thought no longer requires your factories to accomplish. We will
create a civilization of the Mind in Cyberspace. May it be more humane
and fair than the world your governments have made before.1
In the past two decades many of the legal challenges have been answered. The
milestones in the past 20 years have been many. Some of the major ones are the
global content of the internet (in Reno v American Civil Liberties Union 521 US
844 (1997)), jurisdiction in cyberspace (in Dow Jones v Gutnick [2002] HCA 56),
and the functional equivalence of writing and signatures (by the UNCITRAL
Models Law of Electronic Commerce and the Electronic Transaction Acts). Other
areas that have been dealt with include the regulation of spam, internet gambling,
identity theft, digital privacy, email and cybersquatting.
My interest in this area arose some three decades ago when I undertook a degree
in computing science while practising law. At the time the combination was most
unusual, but the world of cyberspace and the regulation of that world have now
become part of the landscape. The aim of this work is to define the law relating to
electronic commerce within Australia as determined by the legislature, judicial
interpretations and the common law. It is intended for legal practitioners and
students of what has broadly become known as cyberlaw.
I would like to thank my colleagues Russell Hinchy, Paul O’Shea and my
research assistant William Hickey for their feedback, suggestions and assistance. I
would especially like to thank my assistant and colleague Garth Wooler for his
patience, proofreading and contributions. Finally I would thank my late father and
my wonderful family Dianne, Taylor and Chelsea.
Dr Alan Davidson
Senior Lecturer, TC Beirne School of Law University of Queensland
Solicitor and Barrister
April 2009
1 John Perry Barlow, “Declaration of Independence of Cyberspace”.
14
15
Table of Cases
A & M Records Inc. v Napster Inc., 239 F. 3d 1004 (9th Cir 2001) 102
Adams v Lindsell (1818) B & Ald 681 57
ADT Services AG v ADT Sucks.com WIPO Case No D2001-0213 167
Airways Corporation of NZ Ltd v Pricewaterhouse Coopers Legal [2002]
NSWSC 138 192
Allocation Network Gmbh v Steve Gregory (allocation.com) WIPO No
D2000-0016 175
American Civil Liberties Union v Reno 929 F. Supp. 824 (1996) 8
APRA v Canterbury-Bankstown League Club Ltd [1964] NSWR 138 90
APRA v Commonwealth Bank of Australia (1993) 25 IPR 157 90
Architects (Australia) Pty Ltd (trading as Architects Australia) v Witty
Consultants Pty Ltd [2002] QSC 139 156
Arica Institute Inc. v Palmer (1992) 970 F. 2d 1067 93
Armstrong v Executive of the President 1 F. 3d 1274 (DC Cir 1993) 309
Armstrong v Executive of the President 810 F. Supp. 335 (1993) 309
Arthur J S Hall & Co v Simmons [2000] UKHL 38, [2002] 1 AC 615 6
Athens v Randwick City Council [2005] NSWCA 317 118
Atlantic Underwriting Agencies Ltd v Compagnia di Assicuranzione di
Milano SpA [1979] 2 Lloyds Rep 240 184
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001]
HCA 63 236, 240
Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519
200, 213
Australian Communications and Media Authority v Clarity1 Pty Ltd [2006]
410 FCA 286
Australian Competition and Consumer Commission v Chen [2003] FCA 897
159
Australian Competition and Consumer Commission v Purple Harmony
Plates Pty Limited [2001] FCA 1062 193
Australian Football League v Age Company Ltd [2006] VSC 308 203
Australian Railways Union v Victorian Railways Commissioners (1930) 44
CLR 319 186
Australian Stock Exchange Ltd v ASX Investor Services Pty Ltd (QSC 1999)
153
Autodesk Inc. v Dyason No. 1 (1992) 173 CLR 330 93
Autodesk Inc. v Dyason No. 2 (1993) 176 CLR 300 93, 94, 96
AV et al v IParadigms LLC Company Civ Act. No 07-0293 (ED Va 2008) 69
Ballas v Tedesco 41 F. Supp. 2d 531 32
Barrett v Rosenthal (2006) 40 Cal 4th 33, 146 P 3d 510 209
16
Bensusan Restaurant Corp. v King 937 F. Supp. 296 (SD NY 1996) 195
Berezovsky v Michaels [2000] UKHL 28 212
Berlei Hestia Industries Ltd v Bali Co. Inc. (1973) 129 CLR 353 113
Bernstein v JC Penny Inc. 50 USPQ 2d 1063 (CD Cal 1998) 115
Bixee v Naukri (2005) IA no 9733/2005 115
Blackie & Sons Ltd v Lothian Book Publishing Co. Pty Ltd (1921) 29 CLR
396 93
Blue Cross and Blue Shield Association and Trigon Insurance Company v.
Interactive Communications Inc. WIPO Case No. D2000-0788 175
Blue Sky Software Corp v Digital Sierra Inc. WIPO Case No. D2000-0165
166
Bosley Medical Institute Inc. v Kremer 403 F. 3d 672 (9th Cir 2005) 168
Braintech Inc. v Kostiuk (1999) 63 BCLR (3d) 156 194
Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH
[1983] 2 AC 34 30, 57, 58, 60
British Petroleum Co. Ltd’s Application (1968) 38 AOJP 1020 121
British Telecom v One in a Million [1999] 1 WLR 903 153
Bruce Springsteen v Jeff Burgar and Bruce Springsteen Club WIPO Case
No. D2000-1532 171
Butera v Director of Public Prosecutions for the State of Victoria (1987)
164 CLR 180 298, 299
BWT Brands Inc and British American Tobacco (Brands) Inc. v NABR WIPO
Case No. D2001-1480 167
Calder v Jones 465 US 783 (1984) 188, 190, 198, 199, 202
Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12
113, 149
Cantor Fitzgerald International v Tradition (UK) Ltd [2000] RPC 95 94
Car Toys Inc. v Informa Unlimited, Inc. (2000) NAF 93682 175
Casio India Co. Ltd v Ashita Tele Systems Pvt Ltd (2003) (27) PTC 265
(Del) 195
Caton v Caton (1867) LR 2 HL 127 75, 78
CCOM Pty Ltd v Jiejing Pty Ltd (1994) 27 IPR 481 121
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37, (1998) 193 CLR
519 205
Chief Executive Department Internal Affairs v Atkinson HCNZ unreported
CIV-2008-409-002391 (2008) 290
Church of Scientology v Woodward [1982] HCA 78 236
City Utilities v Ed Davidson (cityutilities.com) WIPO Case No. D2000-0004
175
Coca-Cola v F Cade & Sons Limited [1957] IR 196 169
Commissioner of Inland Revenue v B [2001] 2 NZLR 566 241
Compuserve Inc. v Patterson 89 F. 3d 1257 (6th Cir 1996) 195
17
Computer Edge v Apple (1986) 161 CLR 171 96
connect.com.au Pty Ltd v GoConnect Australia Pty Ltd [2000] FCA 1148
153
Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 1059
92
Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 105
Cramp & Sons Ltd v Frank Smythson Ltd [1944] AC 328 90
CSR Limited v Resource Capital Australia Pty Limited [2003] FCA 279 158
Cubby v CompuServe 776 F. Supp. 135 (SDNY 1991) 209
Cybersell Inc. v Cybersell Inc. 130 F. 3d 414 (9th Cir 1997) 195, 196
Darryl v Evans (1962) H&C 174 32
Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 94,
96
Data Concepts v Digital Consulting Inc. and Network Solutions Inc. 150 F.
3d 620 (6th Cir. 1998) 207
Databank Systems Ltd v Commissioner of Inland Revenue [1990] 3 NZLR
385 30
Derry v Peek (1889) 14 App Cas 337 160
Diageo plc v John Zuccarini WIPO Case No. D2000-0996 167
Digital Equipment Corporation v Alta Vista Technology Inc. 960 F. Supp.
456 (D Mass 1997) 187
Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 287
Direct Line Group Ltd v Purge IT WIPO Case No. D2000-0583 167
Dixons Group PLC v Purge IT WIPO Case No. D2000-0584 167
Doherty v Registry of Motor Vehicles No. 97CV0050 (Mass 1997) 79
Dow Jones & Co. Inc. v Harrods Ltd 237 F. Supp. 2d 394 (SDNY 2002) 200
Dow Jones v Gutnick [2001] VSCA 249 185, 189
Dow Jones v Gutnick [2002] HCA 56 6, 185–6, 189–90, 191, 196, 198, 200,
204, 205, 210, 211, 214
Dow Jones v Powerclick Inc., WIPO Case No. D2000-1259 161
DPP (Cth) v Rogers [1998] VICSC 48 270
DPP v Sutcliffe [2001] VSC 43 282
Duchess of Argyle v Duke of Argyle [1967] Ch 302 217
Eastman v R (1997) 76 FCR 9 305
Eddie Bauer Inc. v Paul White (2000) eResolution AF-204 161, 168
Ellis v Smith (1754) 1 Ves Jun 11 at 12, 30 ER 205 75
Energy Source Inc. v Your Energy Source NAF No. FA0096364 168
Entores Ltd v Miles Far East Corp [1955] 2 QB 327 58
EPP v Levy [2001] NSWSC 482 217
ESAT Digifone Ltd v Colin Hayes WIPO Case No. D2000-0600 169
Evans v Hoare [1892] 1 QB 593 75, 77, 78
18
Experience Hendrix LLC v Denny Hammerton and The Jimi Hendrix Fan
Club WIPO Case No. D2000-0364 170
Exxon Corp v Exxon Ins. Consultations [1982] Ch 119 93
Faulks v Cameron [2004] NTSC 61, (2004) 32 Fam LR 417 44
Feist Publications Inc. v Rural Telephone Service Co. Inc. 737 F. Supp. 610,
622 (Kan 1990) 90
Fiber-Shield Industries Inc. v Fiber Shield Ltd NAR (2000) No.
FA0001000092054 169
Firth v State of New York 775 NE 2d 463 (2002) 201, 210, 211
Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd [1981] 1 NSWLR 196
160
Fletcher v Bealey (1885) 28 ChD 688 154
Francis Day & Hunter Ltd v Bron [1963] Ch 587 95
Freeserve PLC v Purge IT WIPO Case No. D2000-0585 167
Futuredontics Inc. v Applied Anagramatics Inc. (9th Circuit 1998) 116
G v Day [1982] 1 NSWLR 24 217
GE Capital Finance Australasia Pty v Dental Financial Services Pty Ltd
Case No. DAU2004-0007 177
Giller v Procipets [2004]VSC 113 237
GlobalCenter Pty Ltd v Global Domain Hosting Pty Ltd Case No.
DAU2002-0001 173
Godfrey v Demon Internet Ltd [2001] QB 201 187
Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R 378 184
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 299
Goodman v J Eban Ltd [1954] 1 QB 550 75
Graham Technology Solutions Inc. v Thinking Pictures Inc. 949 F. Supp.
1427 (ND Cal 1997) 32
Grant v Commissioner of Patents [2005] FCA 1100 122
Griswold v Connecticut 381 US 479 (1965) 232
Grosse v Purvis [2003] QDC 151 237, 240
Gutnick v Dow Jones [2001] VSC 305 185, 191, 193
Harris v Selectrix Appliances (Complaints Review Tribunal, Decision No
12/2001, 2001) 241
Harrods Limited v Dow Jones & Co. Inc. [2003] EWHC 1162 201
Harrods Ltd v UK Network Services Ltd (1997) EIPR D-106 153
Hawkes & Son (London) Ltd v Paramount Film Service Ltd [1934] 1 Ch 593
93
Healthgrades.com v Northwest Healthcare Alliance No. 01-35648 (9th Cir
2002) 191, 199
Hedley Byrne v Heller [1964] AC 465 246
19
Helicopteros Nationales de Columbia SA v Hall 466 US 408 194
Henderson v Henderson [1843] 3 Hare 100, 67 ER 313 213
Henry v Henry (1996) 185 CLR 571 184, 214
Henthorn v Fraser [1892] 2 Ch 27 57
Hill v Gatway 2000 Inc 105 F. 3d 1147 (7th Cir 1997) 68
Hoath v Connect Internet Services [2006] NSWSC 158 153, 160, 161
Hodgkinson & Corby Ltd v Wards Mobility Services Ltd [1994] 1 WLR
1564 151
Hotmail Corp v Van$ Money Pie Inc 47 USPQ 2d 1020 (1998) 68
Hume Computers Pty Ltd v Exact International BV [2007] FCA 478 32, 34,
52, 64
I Lan Systems Inc. v Netscout Service Level Corp. (D Mass 2002) 69
IBM Corporation v Commissioner of Patents (1991) 22 IPR 417 121
Ilich v Baystar Corp. Pty Ltd [2004] WASTR 25 49, 50
Inset System Inc. v Instruction Set Inc. 952 F. Supp. 1119 (WD Pa 1997)
192, 194
Insituform Technologies Inc. v National Envirotech Group (1997) LLC, Civ.
No. 97-2064 (ED, La.) 118
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB
433 67
International Shoe Co. v Washington 326 US 310 (1945) 194, 203
Investment India Ltd v ICIC (Mumbai High Court 2000) 157
Isabelle Adjani v Second Orbit Communications Inc. WIPO Case No.
D2000-0867 170
J Pereira Fernandes SA v Mehta [2006] EWHC 813 41, 43
Jameel v Dow Jones & Co. Inc. [2005] EWCA Civ 75 201
Jane Doe v ABC [2007] VCC 281 237
Jazid Inc. Michelle McKinnon v Rennemo Steinar eResolution Case No. AF0807 173
Jeanette Winterson v Mark Hogarth WIPO Case No. D2000-0235 169
Jones v Commonwealth [No. 2] (1965) 112 CLR 206 268
Jones v Dunkel (1959) 101 CLR 298 287
Joseph Denunzio Fruit Company v Crane 79 F. Supp. 117 (DC Cal 1948) 77
Julia Fiona Roberts v Russell Boyd WIPO Case No. D2000-0210 170
Kailash Center for Personal Development Inc. v Yoga Magik Pty Limited
[2003] FCA 536 118, 158
Kelly v Arriba Soft Corporation 336 F. 3d 811 (CA9 2003) 104
Kitakufe v Oloya Ltd [1998] OJ No 2537 QL (Ont Gen Div) 187
Knight v Crockford (1794) 1 Esp N P C 190, 170 ER 324 75
Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd
20
(2000) 100 FCR 90 113, 146, 167
L v L (Complaints Review Tribunal, Decision No. 15/2001, 2001) 241
LA Times v Free Republic 54 USPQ 2D 1453 (2000) 103
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273
93, 95
Lazarus Estates Ltd v Beasley [1956] 1 All ER 341 76
Lee Teck Chee v Merrill Lynch International Bank [1998] CLJ 188 187
Lemayne v Stanley (1682) 3 Lev 1, 83 ER 545 75
L’Estrange v Graucob [1934] 2 KB 394 80
Libro Ag v NA Global Link WIPO Case No. D2000-0186 171
Lobb v Stanley (1844) 5 QB 574, 114 ER 1366 75, 76
Lockheed Martin Corporation v Dan Parisi WIPO Case No. D2000-1015
167
Lockheed-Arabia v Owen [1993] 3 WLR 468 32
Lott v JBW & Friends PL [2000] SASC 3 90
Loutchansky v Times Newspapers Ltd (Nos 2–5) [2002] QB 783 200
Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 8
Macmillan v Cooper (1923) 93 LJPC 113 90
Macquarie Bank v Berg [1999] NSWSC 526 187, 191, 214, 248
Macquarie Bank v Berg [2002] NSWSC 254 193
Madonna Ciccone v Dan Parisi WIPO Case No. D2000-0847 170
Marengo v Darly Sketch & Sunday Graphics Ltd (1948) RPC 242 150
Maritz Inc. v Cybergold Inc. 947 F. Supp. 1328 (ED Mo 1996) 194
Marks & Spencer plc v One in a Million [1999] 1 WLR 903, [1998] EWCA
Civ 1272 8, 153–6, 158, 160
Mary-Lynn Mondich and American Vintage Wine Biscuit Inc. v Big Daddy’s
Antiques WIPO Case No. D2000-0004 174
McGuren v Simpson [2004] NSWSC 35 32, 34, 44, 52, 64
McLane Company Inc. v Fred Craig WIPO Case No. D2000-1455 167
McLean v David Syme & Co. Limited (1970) 72 SR (NSW) 513 207
Mehta v J Pereira Fernandes SA [2006] EWHC 813 78
Mendelson-Zeller Co. Inc. v T & C Providores Pty Ltd [1981] 1 NSWLR
366 184
Merrill Lynch’s Application [1989] RPC 561 120
MGM v Grokster 545 US 913 (2005) 104
Mick Jagger v Denny Hammerton NAF FA0095261 170
Microsoft Corporation v Amit Mehrotrata WIPO Case No. D2000-0053 175
Miele Inc. v Absolute Air Cleaners and Purifiers, WIPO Case No. D20000005 173
Minnesota v Granite Gate Resorts Inc. 568 NW 2d 715 184, 194
MP3.com Inc. v Sander WIPO Case No. D2000-0579 168
21
National Research Development Corp. v Commissioner of Patents (1959)
102 CLR 252 121
National Westminster Bank PLC v Purge IT WIPO Case No. D2000-0636
167
Natural Floor Covering Centre Pty Ltd v Monamy (No. 1) [2006] FCA 518
118
Net2Phone Inc v Los Angeles Superior Court 109 Cal App 4th 583 (Cal. Ct
App, 2003) 208
Nicholas v Borg (1986) 7 IPR 1 160
Nokia Corporation v Nokiagirls.com WIPO Case No. D2000-0102 166
NRMA v John Fairfax [2002] NSWSC 563 237
Oceanic Sun Line Special Shipping Co. v Fay (1988) 62 ALJR 389 184, 214
Oggi Advertising Ltd v McKenzie (1999) 44 IPR 661 152–3
Olley v Marlborough Court [1949] 1 KB 532 66
Omychund v Barker (1745) 1 Atk, 21, 26 ER 15 298
Ontario Inc v Nexx Online Inc. [1999] OJ No. 2246 (Sup Ct) 16
Orange Crush (Australia) Ltd v Gartrell (1928) 41 CLR 282 151
PA Consulting Services Pty Ltd v Joseph Barrington-Lew WIPO Case No.
DAU2003-0002 169
Panavision International v Toeppen (1998) 141 F. 3d 1316 (9th Cir) 144,
146
Parker v The South Eastern Railway Co. (1877) 2 CPD 416 66, 68
Peek v Gurney (1873) LR 6 HL 377 160
Philippe Tenenhaus v Telepathy Inc. (2000) NAF 94355 175
Pitman Training Limited v Nominet [1997] EWHC Ch 367 144, 145, 146
Playboy Enterprises Inc. v Calvin Designer Label 985 F. Supp. 2d 1220 (ND
Cal 1997) 118, 147
Playboy Enterprises Inc. v Chuckleberry Publishing Inc. 939 F. Supp. 1032
(SDNY 1996) 196
Playboy Enterprises Inc. v Hie Holdings Pty Ltd [1999] ATMO 68 117
Playboy Enterprises Inc. v Welles 162 F. 3d 1169 (9th Cir 1998) 117, 118
Polaroid Corp. v Sole N Pty Ltd [1981] 1 NSWLR 491 113
Powell v Birmingham Vinegar Brewing Co Ltd [1897] AC 710 160
Premier Brands v Typhoon [2000] RPC 477 149
ProCD Inc v Zeidenberg 86 F. 3d 1447 (7th Cir 1996) 67
Qantas Airways Limited v The Domain Name Company Limited (2000) 1
NZECC 70-005 157
R v Brislan, Ex parte Williams (1935) 54 CLR 262 268
R v Burdett (1820) 4 B & Ald 115 188
22
R v Frolchenko (1998) QCA 43 77, 300
R v Idolo [1998] VICSC 57 270
R v Maqsud Ali [1966] 1 QB 688 300
R v Moore, Ex Parte Myers (1884) 10 VLR 322 76
R v Shephard [1993] AC 380 302
R v Stevens [1999] NSWCCA 69 270
Re Eilberg 49 USPQ 2d 1955 (1998) 170
Re Krupp [1999] EIPR N24 150
Re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52
184
Reckitt & Colman Products Ltd v Borden Inc. (No. 3) [1990] 1 WLR 491
151
Reddaway v Banham [1896] AC 199 151
Rediff Communication Ltd v Cyberbooth AIR (2000) Bom 27 157
Reese Bros Plastics Ltd v Hamon-Sobelco Aust Pty Ltd (1988) 5 BPR 11,
106 30
Regie National des Usines Renault SA v Zhang [2002] HCA 10 184, 214
Register.com Inc. v Verio Inc. 356 F. 3d 393 (2nd Cir 2004) 69, 72
Reno v American Civil Liberties Union 521 US 844 (1997) 8, 13, 272, 317,
318, 323
Rindos v Hardwick (unreported) WASC (1993) 207
Roe v Wade 410 US 113 (1973) 232
Satyam Infoway Ltd v Siffynet Solutions Pvt Ltd (2004) (28) PTC 566 (SC)
150, 160
Scan Inc. v Digital Service Consultants Inc. 293 F. 3d 707 (4th Cir 2002)
198
Schneider v Norris (1814) 2 M & S 286 75
Shell Co. of Australia Ltd v Esso Standard Oil (Aust) Ltd (1963) 109 CLR
407 113
Shetland Times Ltd v Wills and Zetnews Ltd [1997] 37 IPR 71, [1997] FSR
604 114
SM Integrated Transware v Schenker Singapore Ltd [2005] 2 SLR 651 52,
64
Smith v Greenville County (1938) 188 SC 349, 199 SE 416 76
Société Accor contre M Philippe Hartmann WIPO Case No. D2001-0007
167
Sony Corp. v Universal City Studios 464 US 417 (1984) 103
Sony Kabushiki Kaishal v Sin Eonmok WIPO Case No. D2000-1007 168
Specht v Netscape Communications Corp. 150 F. Supp. 2d 585 (SDNY
2001) 70
Spiliada Maritime Corp. Ltd v Cansulex Ltd [1987] AC 460 184, 214
Standard Chartered PLC v Purge IT WIPO Case No. D2000-0681 167
23
State of the Netherlands v Goldnames Inc. WIPO Case No. D2001-0520 169
State Street Bank and Trust Co. v Signature Financial Group Inc. 149 F. 3d
1368, 47 USPQ 2d (Fed Cir 1998) 119, 122
Step-Saver Data Sys Inc. v Wyse Tech 939 F. 2d 91 (3d Cir 1991) 67
Steven J Caspi v Microsoft Network 323 NJ Super 118 (1999) 69
Sting v Michael Urvan WIPO Case No. D2000-0596 170
Stowe v Thomas 23 F. Cas. 201 (CCED Pa 1853) 93
Stratton Oakmont Inc. v Prodigy Services Co. 1995 WL 323710 (NY Sup Ct
1995) 208
SW Hart & Co. Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466
95
Sydney City Council v West (1965) 114 CLR 481 66
Sydney Markets Limited v Sydney Flower Market Pty Limited [2002] FCA
124 148
Szaeg v Minister for Immigration [2003] FMCA 258 55, 56
Telaxis Communications Corp. v William E. Minkle , WIPO Case No.
D2000-0756 173
Telstra Corp. Ltd v APRA (1997) 38 IPR 294 90
Telstra Corporation Ltd v Barry Cheng Kwok Chu WIPO Case No. D20000423 161
Telstra Corporation Ltd v David Whittle WIPO Case No. D2001-0434 161
Telstra Corporation Ltd v Nuclear Marshmallows WIPO Case No. D20000003 161, 175
The Buddhist Society of Western Australia Inc. v Bristile Ltd [2000]
WASCA 210 207
The Comp Examiner Agency Inc. 25th Century Internet Publishers v Juris
Inc. (CD Cal 1996) 144
The Ian Anderson Group of Companies Ltd v Denny Hammerton WIPO Case
No. D2000-0475 170
The National Office for the Information Economy v Verisign Australia
Limited LEADR Case No. 02/2003 177
The Princeton Review Management Corp. v Stanley H Kaplan Educational
Centre Ltd 84 Civ 1604 (MGC) (SDNY 1994) 144
The Salvation Army v Info-Bahn Inc. WIPO Case No. D2001-0463 167
The Wiggles Touring Pty Ltd v Thompson Media Pty Ltd WIPO Case No.
D2000-0124 170
Theophanous v Herald and Weekly Times Limited [1994] HCA 46 6, 7
Thornton v Shoe Lane Parking Station [1971] 2 QB 163 66, 72
Ticketmaster Corp. v Tickets.com Inc. 54 USPQ 2d 1344 (CD Cal 2000) 70,
109
Ticketmaster Corporation v Microsoft Corporation No. 97-3055 DDP (CD
Cal 1997) 114
24
Timothy R McVeigh v William Cohen 983 F. Supp. 215 (DDC January 1998)
228
Titan Industries Ltd v Prashanth Koorapati & Ors. (1998) (Application 787
in action 179, Delhi High Court) 157
Tourret v Cripps (1879) 48 LJ Ch 567, 27 WR 706 154
Toyota Jidosha Kabushiki Kaisha v S & S Enterprises Ltd , WIPO Case No.
D2000-0802 166
TPI Holdings Inc. v AFX Communications WIPO Case No. D2000-1472 167
Transport Tyre Sales Pty Ltd v Montana Tyres Rims and Tubes Pty Ltd
(1999) 93 FCR 421 113
Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 105
Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 107
Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005]
FCA 1242 104
University of Melbourne v union melb WIPO Case No. DAU2004-0004 177
University of New South Wales v Moorehouse (1975) 133 CLR 1 98, 107
Victoria Park Racing v Taylor (1937) 58 CLR 479 235
Vita Food Products Inc. v Unus Shipping Co. [1939] AC 277 184
Vivendi Universal v Jay David Sallen WIPO Case No. D2001-1121 167, 168
Voth v Manildra Flour Mills Pty Ltd (1990) 65 ALJR 83 184, 214
Wagner v International Ry Co. 133 NE 437 at 437 (NY 1921) 236
Wal-Mart Stores Inc. v Richard MacLeod WIPO Case No. D2000-0662 167
Wal-Mart Stores Inc. v wallmartcanadasucks.com and Kenneth J Harvey
WIPO Case No. D2000-1104 167
Wal-Mart Stores Inc. v Walsucks and Walmarket Puerto Rico WIPO Case
No. D2000-0477 167
Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471 199
Ward v R [1980] HCA 11 191
Warner Bros Pictures v Majestic Pictures Corp. (1934) 70 F. 2d 310 93
Warnink v Townsend & Sons [1979] AC 731 151
Washington Post Co. v Total News Inc. 97 Civ 1190 (SDNY 1997) 114, 116
Webber v Jolly Hotels 977 F. Supp. 327 (D NJ 1997) 195
Wilkens v Iowa Insurance Commissioner (1990) 457 NW 2d 33, 34, 52
World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 252
Y Liu v Star City Pty Limited PR903625 [2001] AIRC 394 239
Yahoo Inc. v Akash Arosa [1999] FSR 931 157, 194
Yahoo! Inc and GeoCities v Data Art WIPO Case No. D2000-0587 161
Young v New Haven Advocate 315 F. 3d 256 (4th Cir 2003) 198, 199, 208
25
Zippo Manufacturing Co. v Zippo Dot Com Inc. 952 F. Supp. 1119 (WD Pa
1997) 194, 195, 196
Zoekallehuizen.nl v NVM (2006) 115
26
Table of statutes
Australian Constitution
section 51 221
section 51(i) 28, 221
section 51(v) 221, 268
section 51(xiii) 221
section 51(xiv) 221
section 51(xviii) 90
section 51(xx) 28
section 51(xxi) 221
section 51(xxii) 221
section 51(xxiii) 222
section 51(xxiiiA) 222
section 51(xxix) 222
section 51(xxxix) 222
section 51(xxxvii) 222
section 52(ii) 222
section 96 222
section 122 28
Commonwealth
Administrative Decisions Judicial Review Act 1977 (Cth) 328
Anti-Terrorism Act (No. 2) 2005 (Cth) 261–2
Anti-Terrorism Act 2004 (Cth) 260
Australian Capital Territory Government Service (Consequential
Provisions) Act 1994 (Cth) 228
Australian Communications and Media Authority Act 2005 (Cth)
286
Australian Security Intelligence Organisation Act 1979 (Cth) 259
section 25(5) 259
section 4 259
Australian Security Intelligence Organisation Legislation
Amendment (Terrorism) Act 2003 (Cth) 259
Bills of Exchange Act 1909 (Cth)
section 8 36
section 89 36
Broadcasting Services Act 1992 (Cth) 97, 323, 325, 366, 369
Part 11 326
Schedule 5 314, 322, 323
Schedule 7 273, 314, 318, 319, 323
clause 2 320
clause 11 320
27
clause 14 320
clause 43 322
clause 47(1) 320
clause 47(2) 321
clause 56(1) 321
clause 56(2) 321
clause 62(1) 321
clause 62(2) 321
Part 3 322
section 6 97
section 123(2)(a) 326
section 147 326
section 148 324
section 150 326
section 179(1) 327
section 180 327
Cheques Act 1986 (Cth)
section 10 36
Circuit Layouts Act 1989 (Cth) 123, 124, 366
section 5 123, 124
section 11 123
section 17 123
section 19(3) 124
section 21(1) 124
section 22 124
section 23 124
section 25 124
section 27(1)–(2) 124
section 27(4) 124
Classification (Publications, Films and Computer Games) Act
1995 (Cth) 319
Communications Legislation Amendment (Content Services) Act
2007 (Cth) 318
Copyright Act 1968 (Cth) 90, 92, 96, 98, 105, 348, 365–74
Division 5 98
Part III 90
Part IV 91
Part VAA 102
Part VB 99
section 10 96, 97, 100, 365–70
section 13(2) 105
section 14 92, 93
section 24 91
28
section 31 102, 370–1
section 31(1) 91
section 31(1)(a)(i) and (b)(i) 93
section 31(1)(a)(iv) and (b)(iii) 97
section 31(1)(a)(vi)–(vii) 93
section 32 371
section 33 372
section 33(2) 91
section 33(3) 91
section 33(4) 91
section 39(1) 92
section 39A 99
section 39B 101
section 40 98
sections 40–42 98
section 43A 99
section 43A(1) 109
section 43B 99
section 101 105
section 101(1A)(a) 106
section 101(1A)(b) 106, 107
section 109A 101
section 111 101
section 112E 105, 108
section 115(2) 92
section 115(5)–(8) 92, 102
section 116 92
sections 116AA–116AJ 101
sections 116AK–116AQ 99
section 116B 372
sections 116B–116D 100
section 116C 373
section 116CA 51
section 116D 374
sections 119–125 92
section 132AC 102
section 195AXI 101
section 196(3) 37
section 196AW 101
Copyright Amendment (Digital Agenda) Act 2000 (Cth) 106
Crimes Act 1914 (Cth) 268, 274, 275
Part VIIC 222
Division 5 225
29
section 3LA 274
Crimes Legislation Amendment (Telecommunications Offences
and Other Measures) Act (No. 2) 2004 (Cth) 268, 270, 294
Criminal Code 1995 (Cth) 259, 268, 269, 270, 271, 283
Dictionary 269, 270
Division 473 270
Division 474 270
Part 10.6 270, 295
section 72.1 258
section 80.1 258
section 100.1 259
section 100.1(1) 260
section 100.1(2) 260
section 100.1(2)e 260
section 100.1(3) 260
section 102.1 258
section 102.5 258
section 102.6 258
section 102.7 258
section 103.1 258
section 115.1 258
section 471.10 257
section 471.11 257
section 471.12 257
section 473.1 272
section 474.1 270
section 474.2 270
section 474.5 271
section 474.6 271
section 474.7 271
section 474.8 271
section 474.9 271
section 474.10 271
section 474.11 271
section 474.14 271
section 474.15 271
section 474.16 271
section 474.17 271
section 474.18 271
section 474.19 272
sections 474.19–474.29 271
section 474.20 272
section 474.21 273
30
section 474.22 272
section 474.23 272
section 474.24 272, 273
section 474.27 273
section 474.29A 273
section 474.29B 32
section 477.1 269
section 477.2 269
section 477.3 269
section 478.1 269
section 478.2 270
section 478.3 270
section 478.4 270
Criminal Code Amendment (Anti-Hoax and Other Measures) Act
2002 (Cth) 257
Criminal Code Amendment (Offences Against Australians) Act
2002 (Cth) 259
Criminal Code Amendment (Suicide Related Material Offences)
2004 (Cth) 273
Criminal Code Amendment (Suppression of Terrorist Bombings)
Act 2002 (Cth) 258, 265
Customs Act 1901 (Cth) 274
Cybercrime Act 2001 (Cth) 3, 268, 274
Data-Matching Program (Assistance and Tax) Act 1990 (Cth) 222,
225
Do Not Call Register (Consequential Amendments) Act 2006 (Cth)
291
Do Not Call Register Act 2006 (Cth) 291
Electronic Transactions Act 1999 (Cth) 27, 28, 56, 86, 297, 306
Explanatory Memorandum
paragraph 49 49
section 1 29
section 2 29
section 3 27, 29
section 4 29
section 5 28, 29, 56, 82
section 6 28, 29
section 7 29
section 8 28, 29, 35
section 9 29
section 9(1) 37
section 9(1)(d) 48
section 9(2) 37
31
section 9(2)(d) 48
section 10 29, 39
section 10(1) 40, 80
section 10(1)(d) 48
section 11 29, 47
section 11(1)(e) 48
section 11(2)(e) 48
section 12 29
section 12(1) 52
section 12(2) 53
section 12(3) 54
section 12(4) 53
section 13 29, 61
section 14 29, 55, 56, 249
section 15 29
section 15(1) 62
section 15(2) 62
section 16 29
Electronic Transactions Regulations 2000 (Cth) 28
Schedule 1 33
Evidence Act 1995 (Cth) 304, 306
section 47 304
section 48(1) 305
section 51 304
section 71 86, 245
sections 160–2 245
section 161 245
Financial Transaction Reports Act 1988 (Cth) 294
Financial Transaction Reports Regulations 1990 (Cth) 294
Freedom of Information Act 1982 (Cth) 233
Health Records and Information Privacy Act 2002 (Cth) 226
Interactive Gambling Act 2001 (Cth) 278, 279
Part 3 279
section 15 279
section 15A 279
Marine Insurance Act 1909 (Cth)
section 27 37
section 28 37
Patents Act 1990 (Cth) 119
section 18 120, 121
section 18(1A) 122
Privacy Act 1988 (Cth) 4, 222, 223, 228, 283, 294
Information Privacy Principles 222
32
National Privacy Principles 223–5, 386–94
NPP 1 223
NPP 2 223
NPP 3 223
NPP 4 223
NPP 5 223
NPP 6 223
NPP 7 223
NPP 8 223
NPP 9 223
NPP 10 223
Schedule 3 223
section 14 222
section 6C 224, 225
section 6D 224
section 7 223
section 7B(3) 224
section 7B(4) 224
section 7C 225
section 13 223
section 13A 223
Security Legislation Amendment (Terrorism) Act 2002 (Cth) 258
Spam (Consequential Amendments) Act 2003 (Cth) 286
Spam Act 2003 (Cth) 4, 283, 284–9, 291, 314
Part 4 286
Part 5 286
Part 6 286
Schedule 1
clause 2 285
clause 3 285
clause 4 285
Schedule 2
clause 2 288
clause 4 289
Schedule 3 286
section 16 284
section 16(1) 286, 287
section 16(5) 287
section 17 284
section 18 284
section 18(1) 285
section 18(2) 285
section 18(3) 285
33
section 18(4) 285
section 18(9) 285
section 20 289
section 21 289
section 22 289
section 41 286
Suppression of the Financing of Terrorism Act 2002 (Cth) 258,
265
Surveillance Devices Act 2004 (Cth) 256, 260–1
Telecommunications (Interception and Access) Act 1979 (Cth)
261, 274
section 117 274
section 5D(2)(d) 258
Telecommunications
(Interception)
Amendment
(Stored
Communications) Act 2004 (Cth) 261
Telecommunications Act 1997 (Cth) 270, 274, 286, 315, 366
Part 13 225
section 99(1) 319
Telecommunications Interception Legislation Amendment Act
2002 (Cth) 258
section 5(1)(c) 258
Telecommunications Service Provider (Mobile Premium Services)
Determination 2005 (No. 1) (Cth) 319
Trade Marks Act 1995 (Cth) 111, 149
section 6 111
section 10 113
section 14 113
section 17 110
section 20 111
section 27 111
section 120 112–13, 147
section 120(3) 146
section 120(3)(4) 113
section 120(3)(d) 149
section 120(4) 146
section 146 118
Trade Practices Act 1974 (Cth) 72, 112, 117, 159, 162, 193, 250,
251
Part V 115
section 52 117, 118, 157, 158, 159, 251
section 53 117, 157, 251
section 53(c) 159
section 53(d) 159
34
section 75AZC 158
New South Wales
Access to Neighbouring Land Act 2000 (NSW)
section 16 226
section 26 226
Contracts Review Act 1980 (NSW) 72
Conveyancing Act 1919 (NSW)
section 54A 36, 39
Crimes Act 1900 (NSW)
section 308 275
sections 308–308H 276
section 308C 275
section 308I 275
section 562AB 281
Criminal Records Act 1991 (NSW) 226
Defamation Act 2005 (NSW)
Part 3 207
section 8 213
section 11 202
section 26 205
section 32 208
section 32(3)(f)(i) and (ii) 206
Electronic Transactions Act 2000 (NSW) 27, 28, 32, 297
Part 2A 63, 248
section 1 29
section 2 29
section 3 29
section 4 29
section 5 29, 56, 82
section 6 28, 29
section 7 29, 35
section 8 29
section 8(1) 37
section 8(2) 37
section 9 29, 39
section 9(1) 40, 80
section 10 29, 47
section 11 29
section 11(1) 52
section 11(2) 53
section 11(3) 54
section 11(4) 53
section 12 29, 55, 56, 61, 249
35
section 13 29
section 14 29
section 14(1)6 62
section 14(2) 62
section 15 29
Electronic Transactions Regulations 2007 (NSW)
regulation 4 33
regulation 5(f) 33
regulation 7 33
Evidence Act 1995 (NSW) 304
section 47 304
section 48(1) 305
section 51 304
section 71 86, 245
sections 160–2 245
section 161 245
Fair Trading Act 1987 (NSW) 159
Freedom of Information Act 1989 (NSW) 226, 233
Health Records and Information Privacy Act 2002 (NSW) 226
Limitation Act 1969 (NSW) 32, 45
section 14B 210
section 54 32
section 56A 210
Listening Devices Act 1984 (NSW) 226
Privacy and Personal Information Protection Act 1998 (NSW)
226
Privacy Committee Act 1975 (NSW) 222, 226
State Records Act 1998 (NSW) 226
Telecommunications (Interception) (New South Wales) Act 1987
(NSW) 226
Workplace Surveillance Act 2005 (NSW) 226, 238
section 10 239
section 25 238
Workplace Video Surveillance Act 1998 238
Queensland
Criminal Code 1899 (Qld) 294
section 228 276
section 359A–359F 281
section 398 294
section 408C 294
section 408C(1) 294
section 408D 275
section 408D(2) 275
36
section 408D(3) 275
section 408E 275, 276
section 427(1) 294
section 441 294
Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) 226
Defamation Act 2005 (Qld)
Part 3 207
section 8 213
section 11 202
section 26 205
section 32 208
section 32(3)(f)(i) and (ii) 206
Electronic Transactions (Queensland) Act 2001 (Qld) 27, 28, 297
Schedule 1
clause 16 33
Schedule 2 56
section 1 29
section 2 29
section 3 29
section 4 29
section 5 29
section 6 29, 82
section 7 28, 29
section 8 29, 35
sections 9–13 29
section 11 37
section 12 37
section 14 40, 80
sections 14–15 29, 39
sections 16–18 29, 47
section 19 52
sections 19–21 29, 53
section 20 53
section 20(3) 54
sections 22–25 29
section 23 55, 249
section 24 56
section 25 61
section 26 29
section 26(1) 62
section 26(2) 62
section 27 29
Evidence Act 1977 (Qld)
37
section 95 301
section 95(6) 303
Freedom of Information Act 1992 (Qld) 226, 233
Invasion of Privacy Act 1971 (Qld) 226
Invasion of Privacy Regulations 1998 (Qld) 226
Legislative Standards Act 1992 (Qld)
section 4(5) 33
Limitation of Actions Act 1974 (Qld)
section 10AA 210
Limitation of Actions Act 1974 (Qld)
section 32 210
Police Powers and Responsibilities Act 2000 (Qld) 226
Property Law Act 1974 (Qld)
section 10 36
section 59 36, 39
Public Records Act 2002 (Qld) 226
Whistleblowers Protection Act 1994 (Qld) 226
South Australia
Criminal Law Consolidation Act 1935 (SA)
Part 5A 294
section 19AA 281
section 144B 294
section 144C 294
Defamation Act 2005 (SA)
Part 3 207
section 8 213
section 11 202
section 24 205
section 30 208
section 30(3)(f)(i) and (ii) 206
Electronic Transactions Act 2000 (SA) 27, 28, 297
section 1 29
section 2 29
section 3 29
section 4 29
section 5 29, 56, 82
section 6 28, 29
section 7 29, 35
section 8 29, 39
section 8(1) 37, 40, 80
section 8(2) 37
section 9 29
section 10 29, 47
38
section 11 29
section 11(1) 52
section 11(2) 53
section 11(3) 54
section 11(4) 53
section 12 29
section 13 29, 55, 56, 61, 249
section 14 29
section 14(1) 62
section 14(2) 62
section 15 29
Electronic Transactions Regulations 2002 (SA)
regulation 4 33
regulation 5 33
Evidence Act 1929 (SA)
section 34C 302
section 55B 302
Freedom of Information Act 1991 (SA) 227, 233
Law of Property Act 1936 (SA)
section 26 39
Limitation of Actions Act 1936 (SA)
section 37(1)(2) 210
Listening and Surveillance Devices Act 1972 (SA) 227
State Records Act 1997 (SA) 227
Summary Offences Act 1953 (SA)
section 44 275
sections 44–44A 276
Telecommunications (Interception) Act 1988 (SA) 227
Tasmania
Annulled Convictions Act 2003 (Tas) 227
Archives Act 1983 (Tas) 227
Conveyancing Law of Property Act 1884 (Tas)
section 36 39
Criminal Code 1924 (Tas)
section 192 281
section 257A–257F 276
section 257C 275
section257D 275
Defamation Act 2005 (Tas)
Part 3 207
section 8 213
section 11 202
section 20A(1)(2) 210
39
section 26 205
section 32 208
section 32(3)(i) and (ii) 206
Electronic Transactions Act 2000 (Tas) 27, 28, 297
section 1 29
section 2 29
section 3 29, 56, 82
section 4 28, 29
section 5 29, 35
section 6 29
section 6(1) 37
section 6(2) 37
section 7 29, 39
section 7(1) 40, 80
section 8 29, 47
section 9 29
section 9(1) 52
section 9(2) 53
section 9(3) 54
section 9(4) 53
section 10 29
section 11 29, 55, 56, 61, 249
section 12 29
section 12(1) 62
section 12(2) 62
section 13 29
section 14 29
Electronic Transactions Regulations 2001 (Tas)
regulation 4(a) 33
Evidence Act 2001 (Tas) 304
section 47 304
section 48(1) 305
section 51 304
section 71 245
sections 160–162 245
section 161 245
Freedom of Information Act 1991 (Tas) 227, 233
Listening Devices Act 1991 (Tas) 227
Personal Information and Protection Act 2004 (Tas) 227
Telecommunications (Interception) Tasmania Act 1999 (Tas) 227
Victoria
Crimes Act 1958 (Vic)
section 21A 281
40
section 247–247H 276
section 247B 275
Defamation Act 2005 (Vic)
Part 3 207
section 8 213
section 11 202
section 26 205
section 32 208
section 32(3)(i) and (ii) 206
Electronic Transactions (Victoria) Act 2000 (Vic) 27, 28, 297,
348–56
section 1 29
section 2 29
section 3 29, 56, 82
section 4 29
section 5 29
section 6 28, 29
section 7 29, 35
section 8 29
section 8(1) 37
section 8(2) 37
section 9 29, 39
section 9(1) 40, 80
section 10 29, 47
section 11 29
section 11(1) 52
section 11(2) 53
section 11(3) 54
section 11(4) 53
section 12 29, 55, 56, 61, 249
section 13 29
section 14 29
section 14(1) 62
section 14(2) 62
section 15 29
Electronic Transactions (Victoria) Regulations 2000
regulation 5 33
Evidence Act 1958 (Vic)
section 55 303
Freedom of Information Act 1982 (Vic) 226, 233
Health Records Act 2001 (Vic) 225, 226
Information Privacy Act 2000 (Vic) 225, 226
Instruments Act 1958 (Vic)
41
section 126 39
Limitation of Actions Act 1958 (Vic)
section 23B 210
Public Records Act 1973 (Vic) 226
Surveillance Devices Act 1999 (Vic) 225, 226, 261
Telecommunications (Interception) (State Provisions) Act 1988
(Vic) 226
Terrorism (Community Protection) Act 2003 (Vic) 262
Western Australia
Criminal Code Act 1913 (WA)
section 338E 281
section 440A 275, 276
Defamation Act 2005 (WA)
Part 3 207
section 8 213
section 11 202
section 26 205
section 32 208
section 32(3)(f)(i) and (ii) 206
Electronic Transactions Act 2003 (WA) 27, 28, 297
section 1 29
section 2 29
section 3 29
section 5 29, 56, 82
section 6 28, 29
section 7 29
section 8 29, 50
section 8(1) 37
section 8(2) 37
section 9 29, 39
section 9(1) 40, 80
section 10 29, 47
section 11 29
section 11(1) 52
section 11(2) 53
section 11(3) 54
section 11(4) 53
section 12 29
section 13 29, 55, 56, 61, 249
section 14 29
section 14(1) 62
section 14(2) 62
section 15 29
42
Electronic Transactions Regulations 2003 (WA)
regulation 3 33
regulation 5 33
Evidence Act 1906 (WA) 303
section 73A(1) 303
section 73A(2) 303
section 73A(3) 304
section 79C 303
Freedom of Information Act 1992 (WA) 226, 233
Limitation Act 2005 (WA)
section 15 210
section 40(3) 210
Sale of Goods Act 1895 (WA)
section 4 37
Spent Convictions Act 1988 (WA) 227
State Records Act 2000 (WA) 227
Statute of Frauds 1677 (Imp) (WA) 39
Surveillance Devices Act 1998 (WA) 227
Telecommunications (Interception) Western Australia Act 1996
(WA) 227
Australian Capital Territory
Civil Law (Property) Act 2006 (ACT)
section 201 39
Civil Law (Wrongs) Act 2002 (ACT)
Part 9.3 207
section 120 213
section 123 202
section 136 205
section 139C 208
section 139C(3)(f)(i) and (ii) 206
Crimes Act 1900 (ACT)
section 35(2)(f)(g)(h) 281
Criminal Code 2002 (ACT)
section 412–421 276
section 415 275
section 416 275
Electronic Transactions Act 2001 (ACT) 27, 28, 297
dictionary 56
section 1 29
section 3 29
section 4 29
section 5 29, 82
section 7 29, 35
43
section 8 29
section 8(1) 37
section 8(2) 37
section 9 29, 39
section 9(1) 40, 80
section 10 29, 47
section 11 29
section 11(1) 52
section 11(2) 53
section 11(3) 54
section 11(4) 53
section 12 29
section 13 29, 55, 56, 61, 249
section 14 29
section 14(1) 62
section 14(2) 62
section 15 29
Freedom of Information Act 1989 (ACT) 233
Limitation Act 1985 (ACT)
section 21B(1)(2) 210
Northern Territory
Criminal Code Act 1983 (NT)
section 125A 276
section 125B 276
section 189 281
section 222 276
section 276–276F 276
section 276B 275
section 276E 276
Defamation Act 2006 (NT)
Part 3 207
section 7 213
section 10 202
section 23 205
section 29 208
section 29(3)(f)(i) and (ii) 206
Electronic Transactions (Northern Territory) Act 2000 (NT) 27,
28, 44, 297
section 1 29
section 2 29
section 3 29
section 4 29
section 5 29, 56, 82
44
section 6 28, 29
section 7 29, 35
section 8 29
section 8(1) 37
section 8(2) 37
section 9 29, 39
section 9(1) 40, 80
section 10 29, 47
section 11 29
section 11(1) 52
section 11(2) 53
section 11(3) 54
section 11(4) 53
section 12 29
section 13 29, 55, 56, 61, 249
section 14 29
section 14(1) 62
section 14(2) 62
section 15 29
Electronic Transactions (Northern Territory) Regulations
regulation 2 33
Evidence Act (NT)
section 26D 302
Information Act 2002 (NT) 227
Law of Property Act 2000 (NT)
section 62 39
Limitation Act 2005 (NT)
section 12(2)(b) 210
section 44A(2) 210
Imperial
Civil Evidence Act 1995 (UK) 306
section 8 307
Electronic Communications Act 2000 (UK) 29, 30
section 7(2)(3) 30
Freedom of Information (Scotland) Act 2002 (UK) 233
Freedom of Information Act 2000 (UK) 233
Land Registration Act 2002 (UK) 29, 30
Part 8 29
section 91 29, 30
section 91(10) 30
Licensing Act of 1662 (Imp) 90
Statute of Anne 1702 (Imp) 90
Statute of Frauds 1677 (Imp) 36, 39, 42, 78, 80, 297
45
Preamble 297
section 4 36, 42, 75, 78, 297
section 17 36
Trade Marks Act 1994 (UK) 149
section 10 147
Canada
Electronic Transactions Act 2001 (Canada) 51
section 4 51
Uniform Electronic Commerce Act 1999 (Canada) 52
Europe
Directive 1999/93/Ec of the European Parliament and of the
Council 86
Directive 96/9/EC of the European Parliament 115
European Patent Convention
article 52(1) 120
Privacy and Electronic Communications Directive 2003 290
India
Indian Evidence Act 1872 (India) 307
section 22 307
section 61 307
section 62 308
section 63 308
section 64 307
section 65 307
Information Technology Act 2000 (India) 179
Right to Information Act 2005 (India) 233
Trade Marks Act 1999 (India)
section 2(zb) 150
section 29 147
New Zealand
Copyright Act 1994 (NZ) 90
section 16 91
section 22 91
section 42 98
section 43 98
section 176 98
Crimes Act 1961 (NZ) 276
Part 11 281
section 248 277
section 249 276
section 250(1) 277
section 250(2) 277
46
section 251 277
section 252 277
section 253 277
section 254 277
Crimes Amendment Act 2003 (NZ) 276
Electronic Transactions Act 2002 (NZ) 28, 34, 35, 63, 82, 306
Schedule 34
section 1 29
section 2 29
section 3 29
section 4 29
section 5 46, 82
sections 5–6 29
section 6 28
section 7 29
section 8 29, 35
sections 9–13 29
section 10(1) 56
section 11 57
sections 12–13 61
section 14 29, 34
section 18 39
sections 18–21 29
section 22 45
sections 22–24 29
section 23 46
section 23(1)(b) 46
section 24 46
section 25 52, 53
sections 25–26 29
sections 26–27 53
sections 28–29 29
section 29 47, 48
section 30 63
section 36 29
Electronic Transactions Regulations 2003 (NZ) 28
Evidence Act 2006 (NZ) 306
section 137(1) 306
section 137(2) 306
Subpart 8 302
Layout Designs Act 1994 (NZ) 123
Limitation Act 1950 (NZ)
section 4 210
47
Official Information Act 1982 (NZ) 233
Privacy Act 1993 (NZ) 240
Trade Marks Act 2002 (NZ) 111
section 89(1)(d) 147, 149
Unsolicited Electronic Messages Act 2007 (NZ) 283, 284, 289
section 32 290
section 45 290
Singapore
Electronic Transactions Act 1998 (Singapore) 44, 82
section 2 44, 83, 84
Trade Marks Act 1998 (Singapore) 149
section 27(3)(d) 149
United States
Anti-Cybersquatting Consumer Protection Act 1999 (US) 147, 148
section 1129 148
Business Method Patent Improvement Act (US) 120
CAN-SPAM Act 2003 (US) 290
Communications Decency Act 1996 (US) 272, 317
section 203(c)(1) 209
Computer Matching and Privacy Protection Act 1988 (US) 241
Copyright Act 1976 (US) 102
section 107 103
Electronic Signatures in Global and National Commerce Act 2000
(US) 51
section 101(c)(1)(C)(ii) 51
Federal Uniform Rules of Evidence 307
article X
rule 1001 307
rule 1002 307
rule 1003 307
Freedom of Information Act 1966 (US) 233
Lanham (Trademark) Act (US) 148
section 43 148
PATRIOT Act 2001 (US) 235, 241, 257
Privacy Act 1974 (US) 233, 241
section 552a 241
Single Publication Act (Idaho)
section 6-702 212
Telecom Reform Act 1996 (US) 14
Trademark Dilution Act 1995 (US) 147
Uniform Electronic Transactions Act 1999 (US) 26, 29, 51
section 5 51
section 5(b) 51
48
section 14 73
Uniform Single Publication Act (US) 212
International Conventions
Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation 1971 264
Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation 1988 (Rome) 264
Convention for the Suppression of Unlawful Seizure of Aircraft
1970 (Hague Convention) 263
Convention on Offences and Certain Other Acts Committed on
Board Aircraft 1963 (Tokyo Convention) 263
Convention on the Physical Protection of Nuclear Material 1980
(Nuclear Materials Convention) 265
Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons 1973 264
Council of Europe Convention on Cybercrime 268, 276
European Patent Convention
article 52(1) 120
International Convention against the Taking of Hostages 1979
(Hostages Convention) 265
International Convention for the Marking of Plastic Explosives
for the Purposes of Detection 1991 (Montreal) 266
International Convention for the Suppression of Terrorist
Bombings (New York, 1997) 265
International Convention for the Suppression of the Financing of
Terrorism 1999 (New York) 265
Optional Protocol on the Sale of Children, Child Prostitution and
Child Pornography (UNICEF) 277
Protocol for the Suppression of Unlawful Acts Against the Safety
of Fixed Platforms Located on the Continental Shelf 1988
(Rome) (Supplementary to the Convention for the Suppression
of Unlawful Acts Against the Safety of Maritime Navigation
1988 (Rome)) 264
Supplementary Protocol for the Suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation
1988 (Montreal) 264
UNCITRAL Model Law of Electronic Commerce 1996 9, 25–7, 28,
29, 31, 34, 35, 36, 40, 45, 48, 49, 51, 54, 56, 62, 63, 64, 82,
86, 305, 331, 332, 334, 357–64
article 1 31, 357
article 2 306, 358
article 3 358
article 4 358
49
article 5 31, 35, 358
article 5bis 35, 358
articles 5–15 27
article 6 359
article 7 333, 334, 359
article 8 63, 359
article 9 306, 360
article 9(2) 306
article 10 360
article 11 35, 49, 360
article 12 360
article 13 361
article 14 361
article 15 362
article 16 363
article 17 363
Official Guide 26, 34, 36, 40, 44, 48, 49, 333
UNCITRAL Model Law of Electronic Signatures 82, 84, 86, 331,
332, 333, 334
article 2 82
United Nations Convention on the Rights of the Child 277, 278, 316
United Nations International Covenant on Civil and Political Rights
(ICCPR) 196, 204, 232
article 17 197, 232
artilce 19 196
Universal Declaration of Human Rights 217, 232
article 12 232
50
1 The law of electronic commerce
Electronic commerce refers to all commercial transactions based on the electronic
processing and transmission of data, including text, sound and images. This
involves transactions over the internet, plus electronic funds transfers and
Electronic Data Interchange (EDI).
On one level, electronic commerce began in the mid-1800s, when the first
contract was entered into using the telegraph or telephone. However, the expression
‘electronic commerce’ is typically used in connection with the expansion of
commerce using computers and modern communications, most notably the internet
and cyberspace. The development of security protocols has aided the rapid
expansion of electronic commerce by substantially reducing commercial risk
factors.
The advantages of electronic commerce to commercial parties include ease of
access, anonymous browsing of products, larger choice, the convenience of
shopping from the computer and enormous efficiencies. The disadvantages include
the potential for invasion of privacy and security risks. There are also questions
regarding jurisdiction, standards, protection of intellectual property, taxation, trade
law and many other issues. Nevertheless, acceptance of electronic products and
services has grown substantially.
Security is of paramount importance in electronic commerce. Public key
cryptology was invented in response to security concerns and has revolutionised
electronic commerce. Communications are now relatively secure: digital signatures
or certificates permit the authentication of the sender of a message or of an
electronic commerce product.
This book addresses legal issues relating to the introduction and adoption of
various forms of electronic commerce. Whether it is undertaking a commercial
transaction on the World Wide Web, sending electronic communications to enter
into commercial arrangements, downloading material subject to copyright or
privacy concerns about our digital personas, there are legal considerations. Parties
must consider the risks of electronic commerce, whether electronic writing and
signatures are equivalent to paper writing or wet ink signatures; which jurisdiction
and which law governs a dispute between parties, if the parties are in different
countries from the servers. This book addresses intellectual property, cybercrime,
surveillance and domain name usage and disputes.
Electronic commerce law
An examination of the law of electronic commerce must begin with a fundamental
51
understanding of the law and its role in society as it has evolved over the centuries.
It necessitates understanding terrestrial norms, social behaviour and the application
of the rule of law. These principles must be applied to new circumstances,
infrastructure and contexts, even if this challenges such foundations of society as
sovereignty and human rights. It is an exciting time to be charting the course and
watching as legislators, courts, merchants and the populace wrestle with this new
epoch. In the 18th and 19th centuries there may have been a similar opportunity to
observe principles evolving, as there were new developments in relation to
consideration (in contract law) and the postal acceptance rule (also in contract
law), and as principles of equity matured. But such development was at a snail’s
pace compared with the eruption of the law of electronic commerce over the last
two decades.
The majority of legal problems arising through the use of electronic commerce
can be answered satisfactorily by the application of standard legal principles.
Contract law, commercial law and consumer law, for example, all apply to the
internet, email communications, electronic banking and cyberspace generally.
However, cyberspace gives rise to unique and unusual circumstances, rights,
privileges and relationships that are not adequately dealt with by traditional law.
This has necessitated legislation, international agreements and a plethora of cases
before the courts to resolve myriad questions. The expression ‘electronic
commerce law’ is used to describe all changes and additions to the law that are a
result of the electronic age.
Justice Fryberg,1 in an address to the Australian Conference on the Law of
Electronic Commerce, asked, ‘Is there such a thing as Electronic Commerce Law? I
suggest there is not’,2 although he acknowledged that he had completed a keynote
address on precisely that topic. Joseph Sommer3 argued that ‘cyberlaw’ was nonexistent as a separate body of law, and that cyberspace ‘is a delightful new
playground for old games’:
[N]ot only is ‘cyberlaw’ nonexistent, it is dangerous to pretend that it
exists. A lust to define the future can be very dangerous, especially when
we cannot even agree on the present. A lust to define the law of the future
is even worse, since law tends to evolve through an inductive accretion
of experience. It is much safer to extract first principles from a mature
body of law than to extract a dynamic body of law from timeless first
principles. An overly technological focus can create bad taxonomy and
bad legal analysis, at least. At worst, it can lock us into bad law,
crystallizing someone’s idea of a future that will never be.4
Judge Frank Easterbrook5 initiated the debate with his article ‘Cyberspace and the
law of the horse’. Easterbrook argued that cyberlaw is unimportant because it
invokes no first principles.6 He made reference to the comment of a former Dean of
the University of Chicago Law School that a course in the law of the horse was not
52
offered: ‘Lots of cases deal with sales of horses; others deal with people kicked by
horses; still more deal with the licensing and racing of horses, or with the care
veterinarians give to horses, or with prizes at horse shows.’ Nevertheless there is
no discrete body of horse law. 7 Judge Easterbrook argued that there was no reason
to teach the ‘law of cyberspace’, any more than there was reason to teach the ‘law
of the horse’, because neither, he suggested, would ‘illuminate the entire law’. By
analogy he proclaimed that cyberlaw did not exist.8
In his article ‘The law of the horse: What cyberlaw might teach’, Lawrence
Lessig9 responded to Easterbrook’s assertions. Through a series of examples he
demonstrated that cyberlaw or electronic commerce law, however described,
forms a unique area of legal discourse. Lessig referred to privacy and spam in
cyberspace. He argued that any lesson about cyberspace requires an understanding
of the role of law, and that in creating a presence in cyberspace, we must all make
choices about whether the values we embed there will be the same values we
espouse in our real space experience. Understanding how the law applies in
cyberspace in conjunction with demands, social norms and mores, and the rule of
cyberspace, will be valuable in understanding and assessing the role of law
everywhere.
Easterbrook and Lessig’s disquisitions are now dated by a decade in a field
which has advanced more quickly than any other field of law. The law of electronic
commerce has increasingly become a distinct class of study, with legal specialists,
dedicated monographs and courses in every law school. Legislation has been
deemed necessary for several cyber issues. Those who scorned words like
‘cyberlaw’ and ‘cybercrime’ perhaps winced at the introduction of the Australian
Cybercrime Act 2001 (Cth). Traditional laws proved inadequate, necessitating
legislation on computer-related crime, credit card fraud, bank card fraud, computer
forgery, computer sabotage, unauthorised access to computer systems, unauthorised
copying or distribution of computer programs, cyber stalking, theft of intellectual
property and identity theft.
Spam has become a real economic waste for virtually all business, resulting in
legislation and international agreements.10 The digitalisation of data results in real
privacy concerns. In response to this the Australian Privacy Act 1988 (Cth) was
overhauled in 2000 to make the private sector accountable. The Australian Law
Reform Commission (ALRC) is currently undertaking a further review, with
recommendations to expand privacy laws so that they deal with technological
developments.
Domain names are valuable business identifiers, traded in the millions of dollars
and subject to numerous disputes. Most national domain name administrators have
introduced dispute resolution procedures. The courts have dramatically expanded
the tort of passing off, in a manner not contemplated until recently, in an attempt to
provide remedies.
Conflict of laws principles in cyberspace have been inadequately served by
53
traditional principles established over centuries. The courts have formed new
approaches. Online defamation, for instance, is unlike the static occurrences. Now,
a defamation statement can be published continuously worldwide 24 hours a day.
The courts have had to reconsider the single publication rule, and the applicability
of local laws to a website intended for another jurisdiction, but with global reach.
Child pornography, terrorism, suicide materials, spyware and censorship are
issues on which laws vary dramatically internationally, and yet each website is
typically available globally. Nations have different ages at which a person is no
longer regarded as a child; freedom of speech issues arise with terrorism issues
(plans to make a bomb) and suicide information, but the law must address the easy
reach of such material in the digital age, in ways that in other contexts may be
considered draconian. Censorship laws for print and television are ineffective for
online materials. What is electronic writing, and an electronic signature? The range
of issues related to electronic contracting has resulted in the Electronic
Transactions Acts internationally. Evidentiary issues arise in relation to digitising
paper documents and printing out electronic documents. The internet raises a range
of intellectual property issues, such as peer-to-peer file sharing (music and videos
in particular), digital rights management, time shifting and format shifting.
Electronic commerce by its nature does not recognise borders and it raises
questions regarding security of transactions, standards and protection, legally and
otherwise, in an international context.
Many international organisations have spent considerable time and resources on
resolving legal issues and difficulties in electronic commerce: the UN Commission
on International Trade Law (UNCITRAL), the International Chamber of Commerce
(ICC), the Asia-Pacific Economic Cooperation (APEC), the Organisation for
Economic Cooperation and Development (OECD) and the World Trade
Organization (WTO) are some examples.11
The law of electronic commerce (or cyberlaw) has emerged as a new, disparate
and coherent body of law.
Internet use in Australia
According to the Australian Bureau of Statistics (ABS), as at the end of the March
quarter 2007, there were 6.43 million active internet subscribers in Australia,
comprised of 761 000 business and government subscribers and 5.67 million
household subscribers. The number of non dial-up subscribers was 4.34 million;
the number of dial-up subscribers was 2.09 million. Non dial-up subscribers
increased by 16 per cent between September 2006 and March 2007, while dial-up
dropped by 16 per cent. The growth in non dial-up was driven mainly by household
subscribers. Non dial-up subscribers represented 67 per cent of total internet
subscribers in Australia at the end of March 2007, compared with 60 per cent at the
end of September 2006. Digital Subscriber Line (DSL) continued to be the
54
dominant access technology used by non dial-up subscribers (3.36 million or
almost 78 per cent of total non dial-up subscribers were connected this way).
Connections with download speeds of 1.5Mbps or greater had increased by 43 per
cent by March 2007 to 1.56 million (there were 1.09 million at the end of
September 2006).
Home internet access across Australia reached 67 per cent in 2007, up from 35
per cent in 2001. In 2006, 66 per cent of homes in major cities had internet access,
compared with 42 per cent for very remote Australia. Broadband was used by 46
per cent of homes in major cities and 24 per cent in very remote Australia.12
The ABS report also found that income and education were key factors in
people’s internet access. Households with an income of $2000 or more per week
were three times more likely to have broadband than households on less than $600
per week. Families with children under 15 (or dependant students) were three to
four times more likely to have internet access than other families. People in lowskill occupations were about a quarter less likely to have broadband than those
with higher skills. People not in the labour force were 18 per cent less likely to
have broadband than those in the labour force. Unemployed people were 12 per
cent less likely to have broadband than employed people. Indigenous households
are about half as likely to have broadband as non-indigenous households.
Judicial consideration in Australia
The High Court of Australia has had few opportunities to consider the impact of
electronic commerce, cyberspace and the operation of the internet. Dow Jones v
Gutnick13 in 2002 was one such opportunity. The court considered defamation on
the World Wide Web and whether it was appropriate for the Supreme Court of
Victoria to exercise jurisdiction over a US-based website. This was the first real
opportunity for the court to consider its role in law making and the common law in
the context of cyberspace and electronic commerce.
The nature and essence of the common law makes it amenable to development,
subject to the Constitution and statute.14 The judiciary, scholars and commentators
debate the length and breadth of acceptable developments using various forms of
legal reasoning to justify their individual approaches. Whether the approach is
principle-based, a coherence-based incremental method or policy-based,
development is an integral part of the common law and of our socio-legal
structure.15
In a joint majority judgment Gleeson CJ, McHugh, Gummow and Hayne JJ
accepted the evidence before the judge at first instance, Hedigan J, regarding ‘the
unusual features of publication on the internet and the World Wide Web’ . The
majority accepted that the internet is ‘a telecommunications network that links other
telecommunication networks…[that] enables inter-communication using multiple
55
data-formats…among an unprecedented number of people using an unprecedented
number of devices [and] among people and devices without geographic
limitation’.16 The majority expressed concern regarding the lack of evidence
adduced to reveal what electronic impulses pass or what electronic events happen
in the course of passing or storing information on the internet. Nevertheless the
majority took the opportunity to define a broad range of internet terms:
14. The World Wide Web is but one particular service available
over the Internet. It enables a document to be stored in such a
way on one computer connected to the Internet that a person
using another computer connected to the Internet can request
and receive a copy of the document…the terms conventionally
used to refer to the materials that are transmitted in this way
are a ‘document’ or a ‘web page’ and a collection of web
pages is usually referred to as a ‘web site’. A computer that
makes documents available runs software that is referred to as
a ‘web server’; a computer that requests and receives
documents runs software that is referred to as a ‘web
browser’.
15. The originator of a document wishing to make it available on the
World Wide Web arranges for it to be placed in a storage area
managed by a web server. This process is conventionally
referred to as ‘uploading’. A person wishing to have access to
that document must issue a request to the relevant server
nominating the location of the web page identified by its
‘uniform resource locator (URL)’. When the server delivers
the document in response to the request the process is
conventionally referred to as ‘downloading’.
In the same case Kirby J was more philosophical in discussing the ramifications of
technological developments, quoting Lord Bingham of Cornhill, who said that the
impact of the internet on the law of defamation will require ‘almost every concept
and rule in the field…to be reconsidered in the light of this unique medium of
instant worldwide communication’.17
In any reformulation of the common law, Kirby J continued, many factors would
need to be balanced: the economic implications of any change, valid applicable
legislation, the pros and cons of imposing retrospective liability on persons, and
social data and public consultation.18 Most significantly, reform is the purvey of
government; it is not the primary role of the courts. Nevertheless, as Kirby J
pointed out, courts have reversed long-held notions of common law principle when
‘stimulated by contemporary perceptions of the requirements of fundamental human
rights’.19
56
As they have recognised the enormity of the impact of the internet as a
revolutionary communications giant, courts all over the world have been forced to
reconsider basic principles. Kirby J appropriately quoted noted US jurist Billings
Learned Hand:
The respect all men feel in some measure for customary law lies deep in
their nature; we accept the verdict of the past until the need for change
cries out loudly enough to force upon us a choice between the comforts of
further inertia and the irksomeness of action.20
Of this passage Brennan J, in Theophanous v Herald and Weekly Times Limited ,21
remarked, ‘Other judges find the call to reform more urgent.’22 To varying degrees
the judiciary acknowledges its role in the law-making process, balancing
consistency, cohesion and precedent in an analytical ballet of deductive, inductive
and abductive reasoning. On the one hand, the common law is the rock and the
foundation of modern English and colonial law (including Australia’s law). On the
other hand, it has remained sufficiently flexible to adapt to modern developments.
And so it should. With the advent of new and novel factual circumstances the
judiciary must find solutions for the benefit, stability and protection of society and
commerce. This has been described as the ‘genius of the common law’: that the
courts may adapt principles of past decisions, by analogical reasoning, ‘to the
resolution of entirely new and unforeseen problems’.23 When the new problem is as
novel, complex and global as Gutnick’s case, an opportunity – indeed a duty –
arises to fashion and build the common law.24
Two examples illustrate the best and worst of judicial malleability. The common
law crime of larceny dictates that the prosecution must prove certain elements of
the crime to elicit a conviction. One key element is to prove that the accused
intended to deprive another of property. This is problematic for intangibles. Where
a person accesses a computer and ‘steals’ a computer file a curious thing happens:
the information is both stolen and left behind. The development of common law
larceny failed to predict or consider this. Attempts at prosecution failed. The courts
could not or would not modify the well-established common law offence of larceny
to accommodate this development. It was left to the legislature to enact cybercrime
legislation to encompass offences that could not be imagined only a matter of years
earlier.25 A reading of the US Supreme Court decision of Reno v American Civil
Liberties Union26 provides a similar missed opportunity in the US context. On the
other hand, the English Court of Appeal, in the domain name case Marks &
Spencer v One in a Million,27 moulded, twisted and interpreted the five
established elements of the tort of passing off to provide a remedy where one
previously did not exist. The result is such a departure from traditional passing off
that it is referred to as ‘domain name passing off’.28
This extension of principle when faced with domain name piracy is to be
57
applauded. In the words of Kirby J, ‘When a radically new situation is presented to
the law it is sometimes necessary to think outside the square.’29 Kirby J reflected
on the specific issue of defamation in the Dow Jones appeal and theorised a reevaluation and formation of a new ‘paradigm’, and a ‘common sense’ approach to
change. His Honour questioned the wisdom of refusing to find a new remedy in new
circumstances, describing it as ‘self-evidently unacceptable’.30 Change is not new.
T he lex mercatoria, for example, emerged from the customs and practices of
merchants from the Middle Ages. Rules governing bills of exchange and letters of
credit were crafted by commercial parties long before the law makers had the
opportunity to legislate. Their aim was commerce, but the result was that
commercial customs and practice became recognised by the courts and then the
legislature, both institutions responding to commercial realities.
In the context of reconceptualisation, Kirby J (in Gutnick’s case) dabbles with
new rules for a ‘unique technology’ and the ‘urgency’ of considering such changes:
To wait for legislatures or multilateral international agreement to provide
solutions to the legal problems presented by the Internet would abandon
those problems to ‘agonizingly slow’ processes of lawmaking.
Accordingly, courts throughout the world are urged to address the
immediate need to piece together gradually a coherent transnational law
appropriate to the ‘digital millennium’. The alternative, in practice, could
be an institutional failure to provide effective laws in harmony, as the
Internet itself is, with contemporary civil society – national and
international. The new laws would need to respect the entitlement of each
legal regime not to enforce foreign legal rules contrary to binding local
law or important elements of local public policy. But within such
constraints, the common law would adapt itself to the central features of
the Internet, namely its global, ubiquitous and reactive characteristics. In
the face of such characteristics, simply to apply old rules, created on the
assumptions of geographical boundaries, would encourage an
inappropriate and usually ineffective grab for extra-territorial
jurisdiction…
Generally speaking, it is undesirable to express a rule of the common
law in terms of a particular technology. Doing so presents problems
where that technology is itself overtaken by fresh developments. It can
scarcely be supposed that the full potential of the Internet has yet been
realised. The next phase in the global distribution of information cannot
be predicted. A legal rule expressed in terms of the Internet might very
soon be out of date.31
In some instances, such as electronic banking and finance, commercial parties have
embraced electronic commerce, forging new paths and boldly leading the way,
even in the absence of any adequate laws. In other instances the law makers have
58
taken the initiative: the UN Commission on International Trade Law (UNCITRAL)
in 1996, with the Model Law of Electronic Commerce, is an important example.32
There are many pitfalls, warnings and surprises in the regulation of electronic
commerce, both practical and legal. These voyages are examined in this book. The
law relating to electronic commerce, the internet and cyberspace requires careful
management by legislators and structured application and development of existing
legal principles by the courts.
Further reading
Justice George Fryberg, Keynote Address to the Australian Conference on
the Law of Electronic Commerce, Brisbane 2003, Supreme Court of
Queensland
publications:
archive.sclqld.org.au/judgepub/2003/fry070403.pdf.
Billings Learned Hand, ‘The contribution of an independent judiciary to
civilisation’, in Irving Dillard (ed.), The spirit of liberty: Papers and
addresses of Learned Hand, 3rd edition, Alfred A Knopf, New York ,
1960.
Russell Hinchy, The Australian legal system: History, institutions and
method, Pearson Education Australia, Sydney, 2008, Part Three.
Neil MacCormick, Legal reasoning and legal theory, Clarendon Law
Series, Oxford University Press, Oxford, 1979.
1 Justice of the Supreme Court of Queensland.
2 Supreme Court of Queensland publications:
archive.sclqld.org.au/judgepub/2003/fry070403.pdf.
3 ‘Against cyberlaw’, (2000) 15 Berkeley Tech L J 1145.
4 Ibid.
5 Now Chief Judge of the US Court of Appeals for the Seventh Circuit.
6 ‘Cyberspace and the law of the horse’, (1996) U Chi Legal F 207.
7 Interestingly, the US law firm of Miller, Griffin and Marks advertises that it
specialises in ‘commercial, corporate and equine matters’.
8 See also James Boyle
, ‘Foucault in cyberspace: Surveillance, sovereignty, and hard-wired censors’,
(1997) University of Cincinnati Law Review 66, 177.
9 ‘The law of the horse: What cyberlaw might teach’, (1999) 113 Harv L Rev
501.
10 For example the Spam Act 2003 (Cth) and the Memoranda of
59
Understanding between Australia, South Korea and the US. See Chapter
16.
11 Other bodies include the Free Trade Agreement of the Americas, the
International Telecommunications Union and the International
Organisation for Standardisation. See Chapter 19.
12 In 2006 the ACT had the highest connection rate, with 75% of all homes
connected and 53% of these on broadband connections. Similar rates
were seen in New South Wales (63% total and 42% broadband),
Victoria (63% and 42%), Queensland (64% and 41%) and Western
Australia (65% and 41%). The lowest connection rate was in Tasmania
(55% and 28%).
13 Dow Jones v Gutnick [2002] HCA 56.
14 See Theophanous v Herald and Weekly Times Limited [1994] HCA 46,
especially Brennan J at para 4. See also D’Orta-Ekenaike v Victorian
Legal Aid [2005] HCA 12; (2005) 223 CLR 1 and Arthur J S Hall & Co
v Simmons [2000] UKHL 38; [2002] 1 AC 615.
15 For a considered and valuable discourse see Russell Hinchy
, The Australian legal system: History, institutions and method, Pearson
Education Australia, Sydney, 2008, in particular, Part Three.
16 Dow Jones v Gutnick [2002] HCA 56, para 13.
17 Matthew Collins
, The law of defamation and the internet, Oxford University Press, Oxford,
2001.
18 Dow Jones v Gutnick [2002] HCA 56, paras 75 and 76.
19 Dow Jones v Gutnick [2002] HCA 56, para 77.
20 Hand
, ‘The contribution of an independent judiciary to civilisation’, in Irving
Dillard
(ed.), The spirit of liberty: Papers and addresses of Learned Hand, 3rd edn,
Alfred A Knopf, New York, 1960.
21 [1994] HCA 46.
22 [1994] HCA 46, para 5.
23 Dow Jones v Gutnick [2002] HCA 56, para 91, per Kirby J.
24 For a view of the role and limitations of the judiciary see the judgment of
Brennan J in Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175
60
CLR 1.
25 See Chapter 16.
26 521 US 844 (1997). See also American Civil Liberties Union v Reno 929
F. Supp 824 (1996), particularly the joint judgment of Sloviter CJ,
Buckwalter and Dalzell JJ.
27 [1999] 1 WLR 903; [1998] EWCA Civ 1272.
28 See Chapter 9.
29 Dow Jones v Gutnick [2002] HCA 56, para 112.
30 Dow Jones v Gutnick [2002] HCA 56, para 115.
31 [2002] HCA 56, paras 119 and 125.
32 For details see Chapter 3.
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2 The rule of cyberspace
This chapter examines and contemplates law and culture in cyberspace. The role of
law and indeed the rule of law have different dynamics in cyberspace as a
consequence of the architecture of cyberspace and its anonymous, pseudonymous
and borderless features. The resultant structural balance among technology, law and
culture may be expressed as the ‘rule of cyberspace’. This spatial dimension,
economic influence on human culture and the role of law and regulation together
form a subculture which both impacts on and moulds electronic commerce.
First, the nature of cyberspace is examined. This is followed by consideration of
theoretical bases for law and order in cyberspace. The rule of cyberspace emerges,
by processes known as ‘spontaneous order’, from the environmental factors
fashioning cyberspace. It is spontaneous order which best describes and to a
limited extent predicts regulation for electronic commerce.
This chapter examines the juxtaposition of culture and cyberspace, a modern
application of spontaneous order, and then uses a discussion of libertarian and
classical approaches to predict the future of cyberspace.
Cultural and environmental juxtaposition with cyberspace
Human interaction tends towards order and has an aversion to chaos. Culture brings
about communities, law, order and stability. And so is it for cyberspace and the
rule of cyberspace.1
Cyberspace is infused with a kind of spontaneous order, and has thus evolved
protocols through public participation. No one controls cyberspace. There are
many stakeholders and users, all with their own agendas, impacts and influences.
Customs, usages and structure have emerged from human action and interaction, but
not human command. Organising bodies do not know the exigencies of the diverse
predilections and demands of the participants. The size, direction, extent and use of
cyberspace have challenged forecasters. By incalculable actions and inputs –
spontaneous order – cyberspace has gained structure and presence.
Through a process of exploration and learning humankind has begun to
understand the limits of its physical world. With curiosity and wonder we develop
an appreciation of real space as a home and vessel for life. Similarly, cyberspace
is a mystery; at least initially. Some dip their toe in and play in this new universe.
To many cyberspace is a nebulous, unsafe and ungoverned place. 2 Cyberspace
poses problems and challenges to visitors, and to owners, regulators, consumers,
merchants and tourists.
The legend of King Canute3 is of a king believed to be so powerful that he could
62
command the tides to stop. Concerned that his subjects believed him to be almighty
to the point of immortality, Canute undertook a practical demonstration at Thorney
Island and ordered the tide to stop. This was of course futile, and the tide
proceeded to disobey him. The demonstration merely confirmed the limits of his
sovereignty. The sea was beyond mere human governance. Many have drawn a
parallel with cyberspace: any attempt to regulate it would be equally futile.4
Cyberspace
Cyberspace is an illusion. It has no physical presence. Yet its users visit it, send
messages and transact business through it. Electrical, magnetic and optical forces
with storage facilities permit users to carry out steps that produce results in real
space. Whether users find information or goods and services via Google, listen
online to radio around the world, or send and receive email, every step is carefully
planned and choreographed. This is not new. Technology has fooled human senses
for years. The dot matrices on newspaper photographs give the illusion of people
and places. Tiny pixels on a television or computer screen give the illusion of
words, drawings and movement. Flashing still pictures 24 times a second gives the
illusion of movement. Users become as immersed in cyberspace as they are
engrossed in the narrative of television and movies. The illusion is real enough; it
takes on an ethereal quality and allows escape from terrestrial shackles. In the end,
though, it is all real people dealing with real people, and sometimes their
relationships and actions become convoluted and conflicted enough for them to
look to the law for resolution, to regulation or a form of rule in cyberspace.
In Reno v American Civil Liberties Union the US Supreme Court has defined
‘the internet’ and ‘cyberspace’ in the following terms:
The Internet is an international network of interconnected computers…
[which] now enable[s] tens of millions of people to communicate with
one another and to access vast amounts of information from around the
world…‘cyberspace’ – located in no particular geographical location but
available to anyone, anywhere in the world, with access to the Internet…
Cyberspace undeniably reflects some form of geography; chat rooms and
Web sites, for example, exist at fixed ‘locations’ on the Internet. Since
users can transmit and receive messages on the Internet without revealing
anything about their identities or ages…cyberspace is malleable. Thus, it
is possible to construct barriers in cyberspace and use them to screen for
identity, making cyberspace more like the physical world and,
consequently, more amenable to zoning laws. This transformation of
cyberspace is already underway.5
The High Court of Australia described the described the internet and cyberspace in
63
the following terms:
[A] decentralised, self-maintained telecommunications network. It is
made up of inter-linking small networks from all parts of the world. It is
ubiquitous, borderless, global and ambient in its nature. Hence the term
‘cyberspace’. This is a word that recognises that the interrelationships
created by the Internet exist outside conventional geographic boundaries
and comprise a single interconnected body of data, potentially amounting
to a single body of knowledge. The Internet is accessible in virtually all
places on Earth where access can be obtained either by wire connection
or by wireless (including satellite) links. Effectively, the only constraint
on access to the Internet is possession of the means of securing
connection to a telecommunications system and possession of the basic
hardware.6
Science fiction author William Gibson first coined the term ‘cyberspace’ in his
1982 novelette ‘Burning Chrome’ in Omni magazine.7 He depicts cyberspace as a
‘consensual hallucination experienced daily by billions of legitimate operators’.8
Michael Benedikt9 describes cyberspace as: ‘A new universe, a parallel universe
created and sustained by the world’s computers and communication lines…The
tablet become a page become a screen become a world, a virtual world…Its
corridors form wherever electricity runs with intelligence…The realm of pure
information.’ He believes that cyberspace, ‘like cityspace, can be inhabited,
explored, and designed’.10 Benedikt puts forward the notion that we drift into
cyberspace every time we speak on the telephone or become absorbed in a book.
It is not a precondition for living, working and engaging in commerce in real
space that its participants understand real space’s underlying physics. And so it is
for cyberspace. Users, vendors and consumers embrace cyberspace however it is
defined. The law of cyberspace emerges as a consequence of their actions. Yet real
space norms remain a starting point. Appreciating the difference gives meaning to
the application of law and regulation. The conservative approach is to apply all
real space laws, rules and behavioural norms in cyberspace. The libertarian view
is to remove the shackles of real space and create a utopia, free for any form of
regulation or encumbrance.
Author and artist John Perry Barlow falls into the latter group. He describes the
action of visiting cyberspace as ‘like having had your everything amputated’.11
Physical existence in cyberspace remains impossible. Nevertheless consciousness
becomes meshed and even lost in computer depictions. Barlow was an early
advocate of freedom of expression and freedom from regulation in cyberspace. His
response to the US Telecom Reform Act of 1996 was to write and issue a
‘Declaration of the Independence of Cyberspace’,12 in which he colourfully
proclaims that cyberspace cannot be ruled by terrestrial norms, legal or otherwise.
64
This declaration galvanised the growing anxiety regarding rights and liberties
within the cyberspace community:
A Declaration of the Independence of Cyberspace
Governments of the Industrial World, you weary giants of flesh and
steel, I come from Cyberspace, the new home of Mind. On behalf of the
future, I ask you of the past to leave us alone. You are not welcome
among us. You have no sovereignty where we gather.
We have no elected government, nor are we likely to have one, so I
address you with no greater authority than that with which liberty itself
always speaks. I declare the global social space we are building to be
naturally independent of the tyrannies you seek to impose on us. You have
no moral right to rule us nor do you possess any methods of enforcement
we have true reason to fear.
Governments derive their just powers from the consent of the
governed. You have neither solicited nor received ours. We did not
invite you. You do not know us, nor do you know our world. Cyberspace
does not lie within your borders. Do not think that you can build it, as
though it were a public construction project. You cannot. It is an act of
nature and it grows itself through our collective actions.
You have not engaged in our great and gathering conversation, nor did
you create the wealth of our marketplaces. You do not know our culture,
our ethics, or the unwritten codes that already provide our society more
order than could be obtained by any of your impositions.
You claim there are problems among us that you need to solve. You use
this claim as an excuse to invade our precincts. Many of these problems
don’t exist. Where there are real conflicts, where there are wrongs, we
will identify them and address them by our means. We are forming our
own Social Contract. This governance will arise according to the
conditions of our world, not yours. Our world is different.
Cyberspace consists of transactions, relationships, and thought itself,
arrayed like a standing wave in the web of our communications. Ours is a
world that is both everywhere and nowhere, but it is not where bodies
live.
We are creating a world that all may enter without privilege or
prejudice accorded by race, economic power, military force, or station
of birth.
We are creating a world where anyone, anywhere may express his or
her beliefs, no matter how singular, without fear of being coerced into
silence or conformity.
Your legal concepts of property, expression, identity, movement, and
context do not apply to us. They are based on matter. There is no matter
here.
65
Our identities have no bodies, so, unlike you, we cannot obtain order
by physical coercion. We believe that from ethics, enlightened selfinterest, and the commonweal, our governance will emerge. Our
identities may be distributed across many of your jurisdictions. The only
law that all our constituent cultures would generally recognize is the
Golden Rule. We hope we will be able to build our particular solutions
on that basis. But we cannot accept the solutions you are attempting to
impose.
In the United States, you have today created a law, the
Telecommunications Reform Act, which repudiates your own
Constitution and insults the dreams of Jefferson, Washington, Mill,
Madison, De Toqueville, and Brandeis. These dreams must now be born
anew in us.
You are terrified of your own children, since they are natives in a
world where you will always be immigrants. Because you fear them, you
entrust your bureaucracies with the parental responsibilities you are too
cowardly to confront yourselves. In our world, all the sentiments and
expressions of humanity, from the debasing to the angelic, are parts of a
seamless whole, the global conversation of bits. We cannot separate the
air that chokes from the air upon which wings beat.
In China, Germany, France, Russia, Singapore, Italy and the United
States, you are trying to ward off the virus of liberty by erecting guard
posts at the frontiers of Cyberspace. These may keep out the contagion
for a small time, but they will not work in a world that will soon be
blanketed in bit-bearing media.
Your increasingly obsolete information industries would perpetuate
themselves by proposing laws, in America and elsewhere, that claim to
own speech itself throughout the world. These laws would declare ideas
to be another industrial product, no more noble than pig iron. In our
world, whatever the human mind may create can be reproduced and
distributed infinitely at no cost. The global conveyance of thought no
longer requires your factories to accomplish.
These increasingly hostile and colonial measures place us in the same
position as those previous lovers of freedom and self-determination who
had to reject the authorities of distant, uninformed powers. We must
declare our virtual selves immune to your sovereignty, even as we
continue to consent to your rule over our bodies. We will spread
ourselves across the Planet so that no one can arrest our thoughts.
We will create a civilization of the Mind in Cyberspace. May it be
more humane and fair than the world your governments have made
before.
John Perry Barlow Cognitive Dissident, Co-Founder, Electronic Frontier
Foundation
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