The long awaited final instalment of “The Hobbit” trilogy has hit the screens along with the expected fanfare, marketing tie-ins and the like. So what is the movie like. In two words, very good. But in fact there are realms that are explored in the movie that, although alluded to in the book, are further developed by Jackson and his creative team.
The first point that should be made is that the hobbit of the title – Bilbo Baggins – is something of a bit player on a much wider and more dramatic canvas. In fact if we were to look at the main story line it is about the tragedy of Thorin Oakenshield and tragedy it is – of almost Euripidean proportions.
Tragedy is an examination of the doom of man and his shortcomings. The form was first developed by the Greeks and even today, from a distance of two and a half thousand years, the Greek realisation of the formula is still seen as the epitome of tragedy, a formula from which there has been little departure over the ages. But the tragic-form has not been the exclusive property of the ancient Greeks. The tragic awareness occurs in the literature of many peoples and is demonstrated in many of the heroic sagas, such as the Edda, the Icelandic sagas, the Kalevala, even to the soul-searching tragic realisation of Sir Gawain in his second encounter with the Green Knight. The tragic awareness in the heroic sagas is demonstrated by a conquering glorious hero, possessed of skill in
arms and special weaponry, engaging in great and important acts. Yet “he appears against the sombre background of inevitable death, a death which will tear him away from his joys and plunge him into nothingness; or, a fate no better, into a mouldering world of shadows”. (Albin Lesky, Greek Tragedy 1978) The tragic man (or tragic hero) carries within himself the seeds of his own downfall.
His humanity, at times a blessing and a virtue, can be a curse. His good acts are magnified, demonstrating him as the epitome of the potential goodness in man. His failings are enlarged, heightening the contrast and making his fall that much more poignant. And fall he must, for fall is the essence of tragedy. And the tragedy is that one so demonstrably noble and so potentially great must fall, not as a result of external influences, but as a result of the failings or shortcomings of the man within. It is, however, impossible to devise a short formula or definition for tragedy. This has been recognised by all who attempt so formidable a task. The best that one can do is point out the essential ingredients of tragedy.
As a result of certain actions by one of the protagonists of the tragedy, who may even be the tragic hero, the balance of the various conflicting forces of nature has been upset. The forces of nature represent order and harmony. The upsetting of the natural order results in chaos. The resolution of the conflict must be the restoration of order. Consequently in tragic drama, the murder of a King, or an incestuous relationship, or usurpation, or an abandonment of filial duty are all seen as actions contrary to an established order of things. The tragic hero may be responsible for upsetting the order or he may be the character through whom order must be re-established, but who, at the same time, may have to be sacrificed that the balance may be restored.
Tragedy is often presented to us in the tales of the heroes. The protagonists are frequently kings, statesmen, princes or warriors of great renown which makes more poignant the depth of their fall. Macbeth, formerly a doughty warrior and faithful subject, recognises the depth of his own fall with the words:
I am in blood
Stepped in so far, that should I wade no more,
Returning were as tedious as go o’er
But the tragedy must mean something to us, the audience or readers. The fall of the tragic hero must affect us, come close to us, have meaning for us, become something that we recognise and which must have relevance. The tragedy must be something to which we can react and which affects us emotionally. This is what is known as catharsis. To make the tragedy even more meaningful, the tragic hero must be fully aware of his situation. He must suffer, know that he is suffering and know why he is suffering. He cannot complain by asking, ‘Why must all these things happen to me?’ He is master of himself and of his fortunes and misfortunes. He may berate himself for committing a certain act which led to a certain consequence, but he cannot question why the consequence has befallen him. Of course, in tragedy there can be only one end for the character who has captured our imagination by his nobility and has heightened our dismay by his fall, and that is death. By his death, the tragic hero returns the balance to nature, whether he was responsible for the upset or not. His death is the final action in a number of actions that he must undertake to dispel disorder.
A further element of tragedy is that it deals with an essential ingredient of the human condition in that it inevitably raises questions of a moral nature. It need not be a purely moral failure which causes the tragic fall. The tragic hero must fall into moral error which contributes to his fall. As a consequence of this the tragic hero, like Oedipus, must carry with him a moral guilt. The tragic hero suffers both the external consequences of his fall and an awareness of his downfall and of the events which led to it.
Thorin’s objective is to restore the balance that was upset when his grandfather Thror fell under the spell of the Arkenstone and when Smaug expelled the Dwarves from the Lonely Mountain. As is the case in so many “hero quests” Thorin undergoes a period of wandering until the “chance meeting” (see “Unfinished Tales”) sets him on the Quest of Erebor. “Unfinished Tales” informs us of Gandalf’s hidden agenda – eliminate the dragon as a potential ally of the Evil One – but Thorin takes the opportunity to re-establish the Dwarvish kingdom under the Mountain.
In the book and in the movie Thorin is portrayed as a mercurial character, stubborn and one who does not tolerate being crossed. Once he has made his mind up, he will rarely shift, and these shortcomings become manifest once the Dwarves resume occupation of the Lonely Mountain. Thorin’s obsession with regaining his kingdom becomes an obsession to recover the Arkenstone and to gather together and protect the great horde of treasure that lies within the halls of the Mountain. Thorin’s obsession becomes destructive. The assumption of the crown of the Dwarves becomes symbolic of his fall, for he becomes an autocrat. His intolerance of any opinion other than his own, his gathering obsessions and his single-minded stubborness to acquire the Akenstone at any cost leaves Bilbo in a quandry, for, as we know, Bilbo has the great jewel. Bilbo sees Thorin’s fall and is unwilling to give him the Arkenstone. Perhaps he sees that possession of the gem will only magnify the nature of the decline. And so it is for, once he is aware of Bilbo’s treachery – so it is in Thorin’s eyes – he ignores the fact that it was through Bilbo’s efforts that they got into the Mountain – and he declares him anathema. He will tolerate no difference even from his loyal Dwarvish followers. Their consternation becomes clear. And so it is, as the armies gather and the negotiations and parleys fail, that Thorin isolates himself behind walls of stone.
Yet it is this final isolation that Thorin obtains insight. In a wonderful scene in the Dwarvish hall where Smaug was drowned in gold, Thorin realises what he has become. The scene is beautifully realised and could well become a classic of the tragic hero’s understanding of the nature of fall.
Thorin has a chance to redeem himself and does so. The crown which he assumed and which symbolised his fall is cast aside. He is a Dwarvish prince, now coming to the aid of his fellows, leading his followers in a last desperate sally forth to confront the age-old enemy. It is in the chapter “The Clouds Burst” that “The Hobbit” becomes a saga in the grand style. Tolkien’s language and style becomes that of the saga signers and chroniclers of old.
Part of the wall, moved by levers, fell outward with a crash into the pool. Out leapt the King under the Mountain, and his companions followed him. Hood and cloak were gone; they were in shining armour, and red light leapt from their eyes. In the gloom, the great dwarf gleamed like gold in a dying fire…..”To me! To me! Elves and Men! To me! O my kinsfolk” he cried and his voice shook like a horn in the valley”
Stirring stuff and wonderfully realised as Thorin returns to expunge the stain of his fall. But die he must and he does at the hands of the Orc Azog in a to and fro duel on a frozen mountain river. But, as is the case in the book, Thorin does one last act before he passes. He reconciles with Bilbo. The circle is complete. The tragic hero has rebalanced the ledger.
And that was it. And that was disappointing because Jackson could have done one last thing to redeem the tragic hero, Thorin. It is in the book and it may be in an extended DVD version when that is finally released. The scene is this:
“They buried Thorin deep beneath the Mountain, and Bard laid the Arkenstone upon his breast.
“There let it lie till the Mountain falls!” he said. “May it bring good fortune to all his folk that dwell here after!”
Upon his tomb the Elvenking then laid Orcrist, the elvish sword that had been taken from Thorin in captivity. It is said in songs that it gleamed ever in the dark if foes approached, and the fortress of the dwarves could not be taken by surprise.”
Another aspect of the movie which Jackson deals with, which is not a part of the book and references to which are made in “The Silmarillion”, “Unfinished Tales” and other collected works is the conflict between the White Council and the Necromancer at Dol Guldur. Although there are only hints in the various texts, Jackson develops the conflict and in doing so develops the character of Galadriel as one of the few beings able to confront the pure evil that is Sauron. The members of the White Council – Galadriel, Elrond, and Saruman arrive at Dol Guldur to liberate Gandalf and confront the Nine Ringwraiths – the mortal men doomed to die of the Ring verse. It is not clear – at least from a first viewing – whether the confrontation escalates through the Ringwraiths, who are dispersed, to Lord of the Nine or to Sauron himself. I believe that it was the Dark Lord himself – not at the full measure of his power – who was challenged by Galadriel. In this challenge Jackson draws upon Tolkien’s writings to present a true High Elven Queen. In the Lord of the Rings (The Fellowship of the Ring, Many Meetings), Gandalf refers to the High Elves – “the Elven-wise, lords of the Eldar from beyond the furthest seas. They do not fear the Ringwraiths, for those who have dwelt in the Blessed Realm live at once in both worlds, and against the Seen and Unseen they have great power.”
Frodo then says that he saw a white figure that shone and did not grow dim like the others, asking whether or not that was Glorfindel. Galdalf replies:
“Yes you saw him for a moment as he is on the other side: One of the mighty of the First-born. He is an Elf-lord of a house of princes.”
And thus is Galadriel portrayed, in her full power as a Noldorian princess. Yet there is another element, for it must be remembered that Galadriel is the holder of one of the three Rings for the Elevn Kings under the sky, Nenya, the Ring of Adamant. In the conflict with Sauron, it is Galadriel who confronts the Dark Lord and Jackson visualises this in that eathereal half-world into which Frodo and Bilbo venture when they don the Ring. Which leads one to wonder whether or not Jackson envisaged Galadriel as using the power of one of the Elven Rings in the battle at Dol Guldur. We know, from what she says in Lord of the Rings, that she contests with Sauron – “I say to you, Frodo, that even as I speak to you, I perceive the Dark Lord and know his mind, or all of his mind that concerns the Elves. And he gropes ever to see me and my thought. But the door is closed.”
As a whole, the film works. There has been criticism of the 40 plus minute battle scene but that is an ill-informed and inaccurate criticism, for the conflict varies between armies and individuals – between Thranduil and the orcs in Erebor, Thorin and Azog on the frozen river, Legolas and Bolg in the mountains in the midst of mouldering masonry, and then the vast sweep of the main battle before the gates of the Mountian. There were times when I thought I was seeing a re-run of the Siege of Gondor and the Battle of the Pelennor Fields and the sally forth of Thorin from the Mountain was rather similar to the ride of the tragic hero Theoden – but without the rousing:
Arise, arise, Riders of Theoden
Fell deeds awake: fire and slaughter
spear shall be shaken, shield be splintered
a sword day, a red day, ere the sun rises!
Ride now; ride now! Ride to Gondor!
And at the end, the circle, like a Ring, is closed, for the film closes with the opening of The Lord of the Rings: The Fellowship of the Ring.
The Court of Appeal decision in Watchorn v R  NZCA 493 was another case involving property in digital data. The accused had been convicted on three charges alleging breaches of s 249 of the Crimes Act in that he had access to his employers computer system and dishonestly or by deception and without claim of right obtain property.
Mr Watchorn was an employee of TAG, an oil and gas exploration company, which was engaged in both prospecting and the production of oil and gas. There was no question that on the 7th June 2012 Mr Watchorn downloaded extensive and sensitive geoscience data from TAG’s computer system onto a portable hard drive. An executive of TAG described the geoscience folder as holding the “secret recipe” because it contained data relating to the discovery of sites of oil and gas. The information had a very high value to TAG. Had it been disclosed to a competitor it would have been extremely damaging to the company and beneficial to that competitor.
On the day after the download took place Mr Watchorn and his family went to Canada for four weeks so that he could visit his mother who was ill. Whilst he was in Canada he met a representative from a company called New Zealand Energy Corporation Limited (NZEC) based in Canada but which carries on business in New Zealand. NZEC is a competitor of TAG. Following this meeting Mr Watchorn was offered a job with NZEC.
On 31 July 2012 Mr Watchorn down loaded similar TAG information to that which he had downloaded on the 7th June and downloaded it on to a USB memory stick. On the same day he gave notice of his intention to resign from TAG and commence employment with NZEC.
TAG was very concerned about material being downloaded from its computer system and the day after Mr Watchorn gave notice, TAG’s solicitors sent a letter to Mr Watchorn reminding him of his obligations for confidentiality and inviting him to return an apparently missing hard drive.
Mr Watchorn responding by stating that the only thing he had on his personal hard drive was relating to some of the things that he had helped put in place as well as technical data and work from previous employment.
On 28 August 2012 the police executed search warrants including one at the premises of NZEC. Mr Watchorn was initially interviewed by the police, then re-interviewed on the 7th December 2012 and arrested. There was some disparity between the various explanations that Mr Watchorn had given to the police relating to whether or not he had taken the portable hard drive with him to Canada. However there was no evidence indicating any disclosure of information to NZEC while Mr Watchorn was in Canada, when he later accessed the down loaded material at NZEC’s premises or at any other time. In fact the evidence was that the data down loaded on the 7th June was not disclosed at any time to any person.
The Court of Appeal noted its decision in Dixon v R where it was held that digital CCTV footage stored on a computer was not “property” as defined in the Crimes Act and so the obtaining of such data by accessing a computer system could not amount to “obtaining property” within the meaning of s 249(1)(a) of the Crimes Act. The Court accepted that that analysis must apply to the kind of data obtained by Mr Watchorn and observed that it was bound to follow Dixon. However the issue was whether or not the Court would follow the approach adopted in Dixon and substitute convictions based upon an alternative charge of obtaining a benefit.
The first thing the Court did was to consider whether or not there had to be a “dishonest purpose” for obtaining a benefit. Despite the fact that the heading to s 249 states “accessing the computer system for dishonest purpose” the Court held that that was not an accurate summary of the offence itself. It observed that the ingredients of s 249(1) do not include a dishonest purpose. What the Crown must prove is that the accused “accessed a computer system and thereby dishonestly or by deception or and without claim of right obtained a benefit.” In light of the definition of “dishonestly” in s 217 of the Crimes Act all the Crown had to prove was that Mr Watchorn did not have TAG’s authorisation to down load the data that he down loaded to his hard drive on the 7th June.
“Dishonestly” in s 217 states “In relation to an act or omission means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority”.
The Supreme Court in R v Hayes  2 NZLR 321;  NZSC 3 stated that dishonestly requires an absence of belief that there was consent or authority and that it is not necessary to prove that the belief was reasonable.
The Court of Appeal observed that if Mr Watchorn actually believed he was authorised to download the data then the element of “dishonestly obtaining” that data would not be proven. Whether he downloaded the data for the purpose of taking it with him to Canada or alternatively to make a backup actually did not address the question as to whether he believed he was authorised to do it. The evidence before the Court was that the TAG Executives said that Mr Watchorn had no authority implied or otherwise to take TAG geoscience data or the material contained with the TAG drilling and TAG electronic site and well files. Mr Watchorn’s claim that he thought that he was authorised to download the files and take them to Canada was contrary to his version of events when interviewed by the police.
The Court then went on to consider the issue of “claim of right”, differentiating the concepts of “dishonesty” and “claim of right” by noting that dishonesty addresses whether Mr Watchorn believed he was authorised to download the data. Claim of right addressed whether or not he believed even if he wasn’t authorised that downloading was permissible. Mr Watchorn argued that he had a defence of claim of right because he believed there was an industry wide practice in the oil and gas field of employees transferring from one firm to another downloading data relevant to the employees work before leaving the employ of the owner of the data. There was no evidence in Watchorn’s case that implied entitlement did exist and no evidence that Mr Watchorn believed that it did. The fact that he had downloaded data from previous employers did not provide a proper foundation for a finding that he was lawfully entitled to do so.
After considering some other issues the Court went on to consider whether or not it should substitute the convictions against Mr Watchorn for convictions based on obtaining a benefit. In Dixon the benefit had been the opportunity to sell a digital CCTV footage that had been obtained by accessing his employer’s computer. In this case there was no evidence that Mr Watchorn had tried to sell the data but the issue was whether or not the word “benefit” was limited to a financial advantage or something wider.
The Court referred to a High Court decision of Police v Leroy (HC Wellington CRI 2006-485-58, 12 October 2006 Gendall J) where a District Court Judge had held that the term benefit meant a benefit that could result in the advancement of a person’s material situation and was limited to a benefit of a financial nature.
Gendall J held otherwise. He said that a non-monetary advantage may nevertheless comprise a benefit. The advantage might be the acquisition of knowledge or information to which one was not otherwise entitled. An advantage might be an invasion of another’s privacy. It might be knowledge or information that could be used to exploit another person. He gave the example of wrongful access of email communications of another for the advantage of disclosure or for use for political purposes or the purposes of embarrassment. He held that information obtained might also be used for the benefit or advantage of a wrong doer enacting in such a way as to harass another in breach of the Harassment Act 1997 or be used to assist in the breach of a protection order under the Domestic Violence Act 1995. It was noted that the words property, pecuniary advantage and valuable consideration relate to matters financial but the same is not necessarily true of benefit, privilege or service and the Court concluded that it was not necessary to confine the concept of benefit to financial benefits.
However that conclusion did not necessarily resolve Mr Watchorn’s case. The Court considered the legislative history of the computer and other provisions of Part 10 of the Crimes Act 1961 in considering whether or not the scope of the word “benefit” was limited to a financial advantage and concluded that it did not. However it concluded that the issue of what constituted a benefit in Watchorn’s case was more nuanced than that of Dixon. The Court considered that it was arguable on the facts of Watchorn’s case that the advantage that he gained was his ability to access the data outside his work environment and without the supervision of his colleagues including after he had left the employment of TAG. Indeed the Court said that it could be argued that he did not in fact exploit the advantage given to him by selling the data or making it available to his new employer. It did not in fact reduce the ability that he had to do any of those things.
However the problem was that the Crown did not actually formulate the nature of the benefit that Mr Watchorn might have received. The failure of articulating such a benefit meant that Mr Watchorn did not have any notice of that allegation that he could properly contest. The Court held that he was entitled to such notice. The Court considered that the evidence that could be adduced might include whether or not there was in fact any advantage to him in having possession or control of the data and because the prosecution had restricted its theory of the case to obtaining property the entitlement that Mr Watchorn had to prior notice of the benefit was not present.
The Court distinguished Watchorn from Dixon where in the latter case the Court was able to identify the benefit Mr Dixon hoped to obtain from the facts proven at trial. Accordingly the Court was not prepared to substitute new verdicts and indeed the grounds for substituting such verdicts were not meet.
This case is helpful because it demonstrates the importance of bringing a proper charge under the Computer Crimes sections of the Crimes Act. The case of Police v Robb  DCR 388 demonstrated the need for a prosecuting authority to exercise considerable care in drafting the charge that it brings. In Robb the allegation arose pursuant to s 250(2)(a) of the Crimes Act in that it was contended that the accused deleted files the property of his employer without authorisation. Part of the problem facing the Court was the mental element in the offence. The Judge held that “deletion” in and of itself did not amount to damaging or interfering of the computer system contrary to s 250. To establish a criminal offence of damaging or interfering with a computer system it was necessary to exclude innocent or accidental data deletion. The Judge observed that wiping a file required an additional conscious decision over and above simple deletion. Forensic evidence could not determine whether a file was deliberately deleted or not.
It is quite clear from both the decisions in Dixon and Watchorn that any charge suggesting the obtaining of property where what in fact has been obtained is digital material cannot be sustained and one of the alternatives in s. 249 must be considered. For this reason the Court’s exposition of the nature of a benefit and the crystallisation of that benefit must be undertaken by a prosecuting authority.
However the final paragraph of the decision of the Court of Appeal in Watchorn is instructive. The Court said “the decisions of this Court in Dixon and the present case have identified some drafting issues and inconsistencies in some Crimes Act provisions. We respectfully suggest that consideration be given to remedial legislation.”
Obviously the question of the nature of any property in digital data must be considered but at the same time it must be carefully thought out. Although it might be attractive for the definition of property simply to include digital data the problem that arises is that what amounts to copyright infringement within the digital space could well become a criminal offence and the presently incorrect adage advanced by copyright owners that “copyright infringement is theft” could well become a reality.
This is a paper that I presented to the 14th International Criminal Law Congress in Melbourne on 11 October 2014. In brief it argues that new information technologies should be employed more widely in the Court system to enhance fact finding by juries and judges. It suggests that what are traditional means of evidence presentation, whilst still relevant, may be enhanced by technology use. In particular the paper questions whether the “confrontation right” requires physical presence and suggests that technology can allow virtual presence. It also points to new developments in 3D rendering and 3D printing which may enhance evidential integrity and improve presentation and consideration of evidence. The paper also questions whether some of the ritual aspects of the trial process enhance or impede proper and effective fact finding, or whether they have relevance to the primary function of the Court at all.
In an earlier post I discussed the decision of Courtney J in Wishart v Murray and dealt specifically with the issue of whether the “owner” of a Facebook page was the “publisher” of defamatory comments made on that page by third parties. The case was appealed to the Court of Appeal (Murray v Wishart  NZCA 461). The judges unanimously held that a third party publisher – that is the owner of the Facebook page that contains comments by others – was not liable as publisher of those comments. They rejected the suggestion liability should attach because the owner of the page “ought to have known” that there was defamatory material, even if he or she was unaware of the actual content of the comment. The Court adopted a more restrictive approach, holding that the host of a Facebook page would only be liable as a publisher if there was actual knowledge of the comments and that there was a failure to remove them in a reasonable time in circumstances which could give rise to an inference that responsibility was being taken for the comments.
However, the approach of the Court, and its apparent recognition of some of the problems posed by the new Digital Paradigm, is of particular interest. In addition the decision leaves open other aspects of publication on platforms other than Facebook such as blogs.
The Background to the Case
Mr Wishart was the author of a book called Breaking Silence, about a woman named Macsyna King. Ms King collaborated with him on the book. Ms King was the mother of Chris and Cru Kahui, who were twins. They died at the age of three months in 2006 from non-accidental injuries. Their father, Chris Kahui, was charged with their murder but acquitted. During his trial, he suggested that Ms King had inflicted the fatal injuries. A subsequent coroner’s report found that the twins had died while in Mr Kahui’s sole care. Nevertheless, suggestions implicating Ms King retained some currency in the public arena. The trial of Chris Kahui for the murder of the twins generated considerable public interest.
Mr Murray learned of the impending publication of Mr Wishart’s book in June 2011. He established a Facebook page called “Boycott the Macsyna King book.” He used his Twitter account to publicise the Facebook page. He posted comments on Twitter and on the Facebook page criticising both Mr Wishart and Ms King. Mrs Murray posted comments on the Facebook page, as did numerous other people.
Mr Wishart commenced proceedings for defamation. He alleged a number of instances but one cause of action related to a claim against Mr Murray in relation to third party statements made by persons posting comments on the Facebook page. This post will be restricted to the way in which the Court dealt with that cause of action.
In the High Court Mr. Murray applied to strike out this cause of action. He was unsuccessful for the extensive reasons and analysis given by Courtney J and discussed in an earlier post. Hence, he appealed.
The Approach of the Court
The Court started by considering the following test applied by Courtney J and articulated by her as follows:
Those who host Facebook pages or similar are not passive instruments or mere conduits of content posted on their Facebook page. They will [be] regarded as publishers of postings made by anonymous users in two circumstances. The first is if they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary. The second is where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory. (Para 117)
This holding identified two tests – the “actual knowledge” test and the “ought to know” test. It was argued for Mr Murray that the actual knowledge test should be the only test for publication. As a first stet the Court considered how the Facebook page worked. This is an important and necessary first step in determining the proper application of existing rules. The Court said (at para 84)
An analysis of the positions taken by the parties requires a careful consideration of exactly what happened in relation to the Facebook page and on what basis it is pleaded that Mr Murray became the publisher of the statements made by third parties on the Facebook page. Although Courtney J described those posting messages on the Facebook page as “anonymous users”, that was not correct on the evidence. In fact, most of the users who posted allegedly defamatory statements identified themselves by name, are named in the statement of claim and could be traced by Mr Wishart if he wished to take action against them. So his action against Mr Murray is not the only potential avenue for redress available to him, though it was obviously more practical to sue Mr Murray for all the offending comments rather than sue many of those commenting for their respective comments.
The Court went on to discuss the way in which the page was set up and operated by Mr Murray. It noted that Courtney J had noted that Mr Murray not only could, but did, take frequent and active steps to remove postings that he considered defamatory or otherwise inappropriate, and also blocked particular individuals whose views he considered unacceptable. She found that he could not, therefore, be perceived as a “passive instrument”. Furthermore, Courtney J found that Mr Murray blocked Mr Wishart and his supporters from the Facebook page, which made it more difficult for Mr Wishart to identify and complain about potentially defamatory material. This impacted upon whether Mr Murray ought to have known of the defamatory postings.
The Use of Analogy
After considering the factual background to Courtney J’s finding, the Court went on to consider the legal path by which she reached her conclusion, her reliance upon the decision in Emmens v Pottle (1885) 16 QBD 354 (CA) and discussed at length the various decisions to which she referred. The Court then made the following significant comment (para 99):
The analysis of the cases requires the Court to apply reasoning by strained analogy, because the old cases do not, of course, deal with publication on the internet. There is a question of the extent to which these analogies are helpful. However, we will consider the existing case law, bearing in mind that the old cases are concerned with starkly different facts.
The Court then went on to consider the factual background to a number of cases that had been discussed by Courtney J. (paras 100 – 123) and the decision in Oriental Press Group Ltd v Fevaworks Solutions Ltd  HKCFA 47 which was decided after Courtney J’s decision. That case considered whether a host of an internet discussion forum is a publisher of defamatory statements posted by users of the forum. Although the main focus of the decision was on the availability of the innocent dissemination defence, the Court also considered whether the forum host was a publisher. It rejected the analogy with the notice board or graffiti cases, because in those cases the person posting or writing the defamatory comment was a trespasser. Since the forum host played an active role in encouraging and facilitating the postings on its forum, they were participants in the publication of postings by forum users and thus publishers.
The Court of Appeal then considered the various authorities that had been referred to by Courtney J and found that they provided limited guidance because the particular factual situation before the Court had to be the subject of focus. The reason for this was that the Court’s analysis of the authorities showed how sensitive the outcome may be to the particular circumstances of publication, and the fact that many of the authorities related to publication in one form or another on the internet did not provide any form of common theme, because of the different roles taken by the alleged publisher in each case.
The Court went on to examine the drawing of analogies , especially from authorities which did not involve the Internet. While noting that analogy is a helpful form of reasoning they may not be useful in particular cases. The Court observed that it was being asked to consider third party Facebook comments as analagous with:
the posting of a notice on a notice board (or a wall on which notices can be affixed) without the knowledge of the owner of the notice board/wall;
the writing of a defamatory statement on a wall of a building without the knowledge of the building owner;
a defamatory comment made at a public meeting without the prior knowledge or subsequent endorsement or adoption by the organiser of the meeting
The Court then considered the circumstances in Emmens v Pottle which established that a party can be a publisher even if they did not know of the defamatory material. The holding in that case was that a news vendor who does not know of the defamatory statement in a paper he or she sells is a publisher, and must rely on the innocent dissemination defence to avoid liability.
The Court of Appeal considered that news vendor in Emmens v Pottle did not provide an apposite analogy with a Facebook page host. It observed that a news vendor is a publisher only because of the role taken in distributing the primary vehicle of publication, the newspaper itself. This contrasts with the host of a Facebook page which is providing the actual medium of publication, and whose role in the publication is completed before publication occurs. The Facebook page is in fact set up before any third party comments are posted.
So was the Facebook page more like the “notice on the wall” situation described in Byrne v Deane  1 KB 818 (CA)? This analogy was not perfect either. In Oriental Press Group the Court found that posting a notice on a wall on the facts in Byrne v Deane was a breach of club rules and therefore amounted to a trespass. The Court of Appeal did not consider that the breach of the club rules was a factor affecting the outcome but rather that the club and its owners had not posted the defamatory notice and, until they became aware of it, were in no position to prevent or bring to an end the publication of the defamatory message. If a case arose where the defamatory message was posted on a community notice board on which postings were welcomed from anyone, the same analysis would apply. Furthermore, in Byrne v Deane the post was truly anonymous. There was no way by which the person posting the notice could be identified. In the case of the Facebook host, posting messages in response to an invitation to do so is lawful; and solicited by the host. Similarly, the Facebook host is not the only potential defendant whereas in Byrne v Deane, as has been observed, the poster of the notice could not be identified.
The Court also considered that drawing an analogy between a Facebook page and graffiti on a wall was also unhelpful. The owner of the wall on which the graffiti is written is not intending that the wall be used for posting messages. A Facebook host is.
One argument that had been advanced was that an analogy could be drawn with a public meeting – although there is a danger in equating the physical world with the virtual. It was argued that if Mr Murray had convened a public meeting on the subject of Mr Wishart’s book, Mr Murray would have been liable for his own statements at the meeting but not for those of others who spoke at the meeting, unless he adopted others’ statements himself. The court felt the analogy was useful because it incorporated a factor that neither of the other two analogies do: the fact that Mr Murray solicited third party comments about Mr Wishart’s book. In addition speakers at a public meeting could be identified (and sued) if they made defamatory statements just as many contributors to the Facebook page could be. However, the public meeting analogy is not a perfect one in that statements at a meeting would be oral and therefore ephemeral unlike the written comments on the Facebook page but it did illustrate a situation where even if a person incites defamation, he or she will not necessarily be liable for defamatory statements made by others. That is the case even if he or she ought to have known that defamatory comments could be made by those present at the meeting.
Problems with the “Ought to Know” Test
The Court then expressed its concerns about the “ought to know” test and Facebook hosts. First, an “ought to know” test put the host in a worse position than the “actual knowledge” test. In the “actual knowledge” situation the host has an opportunity to remove the content within a reasonable time and will not be a publisher if this is done. In the “ought to know” case publication commences the moment the comment is posted.
What happens when a Facebook page host who ought to know of a defamatory comment on the page actually becomes aware of the comment? On the “actual knowledge” test, he or she can avoid being a publisher by removing the comment in a reasonable time. But removal of the comment in a reasonable time after becoming aware of it will not avail him or her if, before becoming aware of the comment, he or she ought to have known about it, because on the “ought to know” test he or she is a publisher as soon as the comment is posted.
Another concern was that the “ought to know” test makes a Facebook page host liable on a strict liability basis, solely on the existence of the defamatory comment. Once the comment is posted the host cannot do anything to avoid being treated as a publisher.
A further concern involved the need to balance the right of freedom of expression affirmed in s 14 of the NZ Bill of Rights Act 1990 against the interests of a person whose reputation is damaged by another. The Court considered that the imposition of the “ought to know” test in relation to a Facebook page host gives undue preference to the latter over the former.
A fourth issue concerning the Court was that of the uncertainty of the test in its application. Given the widespread use of Facebook, it is desirable that the law defines the boundaries with clarity and in a manner that Facebook page hosts can regulate their activities to avoid unanticipated risk.
Finally the innocent dissemination test provided in s. 21 of the Defamation Act would be difficult to apply to a Facebook page host, because the language of the section and the defined terms used in it are all aimed at old media and appear to be inapplicable to internet publishers.
Thus the Court concluded that the actual knowledge test should be the only test to determine whether a Facebook page host is a publisher.
Thus the decision clarifies the position for Facebook page hosts and the test that should be applied in determining whether such an individual will be a publisher of third party comments. But there are deeper aspects to the case that are important in approaching cases involving new technologies and new communications technologies in particular.
The Deeper Aspects of the Case
The first is the recognition by the Court of the importance of understanding how the technology actually works. It is necessary to go below the “content layer” and look at the medium itself and how it operates within the various taxonomies of communication methods. In this regard, it is not possible to make generalisations about all communications protocols or applications that utilise the backbone that is the Internet.
Similarly it would be incorrect to refer to defamation by Facebook or using a blog or a Google snippet as “Internet defamation” because the only common factor that these application have is that they bolt on to and utilise the transport layer provided by the Internet. An example in the intellectual property field where an understanding of the technology behind Google adwords was critical to the case was Intercity Group (NZ) Limited v Nakedbus NZ Limited  NZHC 124.. Thus, when confronted with a potentially defamatory communication on a blog, the Court will have to consider the way in which a blog works and also consider the particular blogging platform, for there may well be differences between platforms and their operation.
The second major aspect of the case – and a very important one for lawyers – is the care that must be employed in drawing analogies particularly with earlier communications paradigms. The Court did not entirely discount the use of analogy when dealing with communication applications utilising the Internet. However it is clear that the use of analogies must be approached with considerable care. The Digital Paradigm introduces new and different means of communication that often have no parallel with the earlier paradigm other than that a form of content is communicated. What needs to be considered is how that content is communicated and the case demonstrates the danger of looking for parallels in earlier methods of communication. While a Facebook page may “look like” a noticeboard upon which “posts” are placed, or has a “wall” which may be susceptible to scrawling graffiti it is important not to be seduced by the language parallels of the earlier paradigm. A Facebook “page” or a “web page” are not pages at all. Neither have the physical properties of a “page”. It is in fact a mixture of coded electronic impulses rendered on a screen using a software and hardware interface. The word “page” is used because in the transition between paradigms we tend to use language that encodes our conceptual understanding of the way in which information is presented. A “website” is a convenient linguistic encoding for the complex way in which information is dispersed across a storage medium which may be accessible to a user. A website is not in fact a discrete physical space like a “building site”. It has no separate identifiable physical existence.
The use of comfortable encoding for paradigmatically different concepts; the resort often to a form of functional equivalence with an earlier paradigm means that we may be lured in considering other analogous equivalencies as we attempt to try to make rules which applied to an old paradigm fit into a new one.
The real deeper subtext to Murray v Wishart is that we must all be careful to avoid what appears to be the comfortable route and carefully examine and understand the reality of the technology before we start to determine the applicable rule.
Under the law in New Zealand a digital file cannot be stolen. This follows from the Court of Appeal decision in Dixon v R  NZCA 329 and depends upon the way in which various definitions contained in the Crimes Act coupled with the nature of the charge were interpreted by the Court.
Mr. Dixon, the appellant, had been employed by a security firm in Queenstown. One of the clients of the firm was Base Ltd which operated the Altitude Bar in Queenstown. Base had installed a closed circuit TV system in the bar.
In September 2011 the English rugby team was touring New Zealand as part of the Rugby World Cup. The captain of the team was Mr Tindall. Mr Tindall had recently married the Queen’s granddaughter. On 11 September, Mr Tindall and several other team members visited Altitude Bar. During the evening there was an incident involving Mr Tindall and a female patron, which was recorded on Base’s CCTV.
Mr Dixon found out about the existence of the footage of Mr Tindall and asked one of Base’s receptionists to download it onto the computer she used at work. She agreed, being under the impression that Mr Dixon required it for legitimate work purposes. The receptionist located the footage and saved it onto her desktop computer in the reception area. Mr Dixon subsequently accessed that computer, located the relevant file and transferred it onto a USB stick belonging to him.
Mr Dixon attempted to sell the footage but when that proved unsuccessful he posted it on a video-sharing site, resulting in a storm of publicity both in New Zealand and in the United Kingdom. At his trial the judge Phillips found that Mr Dixon had done this out of spite and to ensure that no one else would have the opportunity to make any money from the footage.
A complaint was laid with the Police and Mr Dixon was charged under s. 249(1)(a) of the Crimes Act 1961.
That section provides as follows:
249 Accessing computer system for dishonest purpose
(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—
(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration;
The indictment against Mr Dixon alleged that he had “accessed a computer system and thereby dishonestly and without claim of right obtained property.”
The issue before the Court was whether or not digital footage stored on a computer was “property” as defined in the Crimes Act.
“Property” is defined in section 2 of the Crimes Act in the following way:
property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.
The Court considered the legislative history of the definition, noting that in the Bill that introduced the new computer crimes a separate definition of property specifically for those crimes had been provided. The definition was discarded by the Select Committee which rejected the suggestion that there should be different definitions of the word property for different offences.
The Court also noted that in the case of Davies v Police  1 NZLR 638 (HC) it was held that internet usage (the consumption of megabytes in the transmission of electronic data) is “property” but in that case the Judge specifically distinguished internet usage from the information contained in the data. Thus, Dixon was the first case where the Court had to consider “property” as defined in the context of “electronically stored footage or images”.
In considering the decision of the trial Judge, the Court was of the view that he had been influenced by the very wide definition of property and the inclusion of intangible things, and that the footage in question seemed to have all the normal attributes of personal property. The Court also observed that Base Ltd who operated the CCTV system did not lose the file. What it lost was the right to exclusive possession and control of it. The Court considered the trial judge’s holding that the files were within the scope of the definition of property reflected “an intuitive response that in the modern computer age digital data must be property.” (para 20)
The Court concluded otherwise and held that digital files are not property within section 2, and therefore Mr Dixon did not obtain property and was charged under the wrong part of section 249(1)(a). Rather, held the Court, he should have been charged with accessing a computer and dishonestly and without claim of right obtaining a benefit.
The Court referred to the English decision of Oxford v Moss (1979) 68 Cr App R 183 which involved a University student who unlawfully acquired an examination paper, read its contents and returned it. The Court held that was not theft. The student had obtained the information on the paper – confidential it may have been, but it was not property, unlike the medium upon which it was written.
The Court of Appeal noted that Oxford v Moss was not a closely reasoned decision but it remained good law in England and had been followed by the Supreme Court of Canada in Stewart v R  1 SCR 963. Oxford v Moss had also been followed in New Zealand. In Money Managers Ltd v Foxbridge Trading Ltd (HC Hamilton CP 67/93 15 December 1993) Hammond J noted that traditionally the common law had refused to treat information as property, and in Taxation Review Authority 25  TRNZ 129 Judge Barber had to consider whether computer programs and software constituted goods for the purpose of the Goods and Services Tax Act 1985. He drew a distinction between the medium upon which information or data was stored – such as computer disks – and the information itself.
The Court considered the nature of confidential information and a line of cases that held that it was not property. The traditional approach had been to rely on the equitable cause of action for breach of confidence.
The Court went on to consider whether or not the digital footage might be distinguishable from confidential information. Once again it noted the distinction between the information or data and the medium, observing that a computer disk containing the information was property whilst the information contained upon it was not. It observed that a digital file arguably does have a physical existence in a way that information (in non-physical form) does not, citing the decision in R v Cox (2004) 21 CRNZ 1 CA at . Cox was a case about intercepted SMS messages. The relevant observation was directed to the issue of whether or not an electronic file could be the subject of a search. The Court in Cox noted
“Nor do we see anything in the argument that the electronic data is not “a thing”. It has a physical existence even if ephemeral and that in any event the computer componentry on which it was stored was undoubtedly “a thing”.
Any doubt on this particular issue has been resolved by the Search and Surveillance Act 2012. However, as I will discuss below, although a digital file does have a physical existence, it is not in coherent form. One of the subtexts to the Court of Appeal’s observations of the “electronically stored footage” was that, when stored electronically it has a continuity similar to film footage. For reason that I will discuss later, this is not the case.
The Court then went on to discuss the nature of information in the electronic space. The Court stated at :
It is problematic to treat computer data as being analogous to information recorded in physical form. A computer file is essentially just a stored sequence of bytes that is available to a computer program or operating system. Those bytes cannot meaningfully be distinguished from pure information. A Microsoft Word document, for example, may appear to us to be the same as a physical sheet of paper containing text, but in fact is simply a stored sequence of bytes used by the Microsoft Word software to present the image that appears on the monitor.
Having reviewed the background to the extension of the definition of “property’ following the decision in the case of R v Wilkinson  1 NZLR 403 (CA) where it was held that credit extended by a bank was not capable of being stolen because the definition of things capable of being stolen was limited to moveable, tangible things, and the fact that although the definition of document extended to electronic files the word “document” – thereby extending the definition of property to include electronic files – did not appear in the definition of “property”, along with the fact that the Law Commission in its hastily produced and somewhat flawed report Computer Misuse (NZLC R54 1999) referred to a possible redefinition of information as a property right, the Court took what it described as the orthodox approach. Parliament was taken to be aware of the large body of authority regarding the status of information and had it intended to change the legal position, it would have expressly said so by including a specific reference to computer-stored data.
This holding did not make section 249(1) of the Crimes Act meaningless. The section would still extend to cases where, for example, a defendant accesses a computer and uses, for example, credit card details to unlawfully obtain goods. In this case, the Court observed, Mr. Dixon had been charged under the wrong part of the section.
It is clear that prosecuting authorities will have to move with care in future. Under the Dixon holding, someone who unlawfully obtains an e-book for a Kindle or other reader could not be charged with theft, because an e-book is information in digital form. If the same book in hard copy form were taken without payment and with the requisite intention from a bookstore, a charge of theft could follow.
There can be no doubt that the decision of the Court of Appeal is correct technologically and in law and, although I do take a few minor points with the way in which the technological realities have been articulated.
The issue of where the property lies within medium\information dichotomy has been with us for a considerable period of time. I can own the book, but I do not “own” the content and do with it as I wish because it is the “property” of the author. The particular property right – the “copy right” gives the author the control over the use of the content of the book – the author may lose possession and control of the medium but he or she does not lose control of the message.
But the “copy right” has its own special statute and those legislatively created special property rights do not extend to the provisions of the Crimes Act – even although copyright owners frequently mouth the mantra that copyright infringement is “theft”. Clearly the decision in Dixon emphasising the principle that information is not property for the purposes of theft must put that myth to rest.
Information or Data in the Digital Space
To clearly understand the import of the decision in Dixon it is necessary to understand the nature of information or data in the digital space. The Court of Appeal refers to “information” because that is the basis of the “orthodox” conclusion that it reached. Information implies a certain continuity and coherence that derives from the way in which it was communicated in the pre-digital paradigm. Lawyers are so used to obtaining information that is associated primarily with paper, the medium takes second place to the message. Lawyers focus upon the “content layer” – an approach that must be reconsidered in the Digital Paradigm. For reasons which I shall develop, the word “data” can (and perhaps should) be substituted.
The properties of electronic and digital technologies and their product require a review of one’s approach to information. The nature of the print and paper based medium as a means of recording and storing information, and the digital equivalent are radically different. Apart from occasional incidents of forgery, with paper-based documents, what you saw was what you got. There was no underlying information embedded or hidden in the document, as there is with meta-data in the digital environment. The issue of the integrity of the information contained on the static medium was reasonably clear.
Electronic data is quite different to its predigital counterpart. Some of those differences may be helpful. Electronic information may be easily copied and searched but it must be remembered that electronic documents do pose some challenges.
Electronic data is dynamic and volatile. It is often difficult to ensure it has been captured and retained in such a way as to ensure its integrity. Unintentional modifications may be made simply by opening and reading data. Although the information that appears on the screen may not have been altered, some of the vital meta-data which traces the history of the file (and which can often be incredibly helpful in determining its provenance and which may be of assistance in determining the chronology of events and when parties knew what they knew) may have been changed.
To understand the difficulty that the electronic paradigm poses for our conception of data it is necessary to consider the technological implications of storing information in the digital space. It is factually and paradigmatically far removed from information recorded on a medium such as paper.
If we consider data as information written upon a piece of paper it is quite easy for a reader to obtain access to that information long after it was created. The only thing necessary is good eye sight and an understanding of the language in which the document is written. It is information in that it is comprehensible and the content informs. Electronic data in and of itself does not do that. It incoherent and incomprehensible, scattered across the sectors of the medium on which it is contained. In that state it is not information in that it does not inform.
Data in electronic format is dependent upon hardware and software. The data contained upon a medium such as a hard drive requires an interpreter to render it into human readable format. The interpreter is a combination of hardware and software. Unlike the paper document, the reader cannot create or manipulate electronic data into readable form without the proper hardware in the form of computers.
There is a danger in thinking of electronic data as an object ‘somewhere there’ on a computer in the same way as a hard copy book is in a library. Because of the way in which electronic storage media are constructed it is almost impossible for a complete file of electronic information be stored in consecutive sectors of a medium. An electronic file is better understood as a process by which otherwise unintelligible pieces of data are distributed over a storage medium, are assembled, processed and rendered legible for a human user. In this respect the “information” or “file” as a single entity is in fact nowhere. It does not exist independently from the process that recreates it every time a user opens it on a screen.
Computers are useless unless the associated software is loaded onto the hardware. Both hardware and software produce additional evidence that includes, but is not limited to, information such as metadata and computer logs that may be relevant to any given file or document in electronic format.
This involvement of technology and machinery makes electronic information paradigmatically different from traditional information where the message and the medium are one. It is this mediation of a set of technologies that enables data in electronic format – at its simplest, positive and negative electromagnetic impulses recorded upon a medium – to be rendered into human readable form. This gives rise to other differentiation issues such as whether or not there is a definitive representation of a particular source digital object. Much will depend, for example, upon the word processing program or internet browser used.
The necessity for this form of mediation for information acquisition and communication explains the apparent fascination that people have with devices such as smart phones and tablets. These devices are necessary to “decode” information and allow for its comprehension and communication.
Thus, the subtext to the description of the electronically stored footage which seems to suggest a coherence of data similar to that contained on a strip of film cannot be sustained. The “electronically stored footage” is meaningless as data without a form of technological mediation to assemble and present the data in coherent form. The Court made reference to the problem of trying to draw an analogy between computer data and non-digital information or data and referred to the example of the Word document. This is part of an example of the nature of “information as process” that I have described above. Nevertheless there is an inference of coherence of information in a computer file that is not present in the electronic medium – references to “sequence of bytes” are probably correct once the assembly of data prior to presentation on a screen has taken place – but the reality is that throughout the process of information display on a screen there is constant interactivity between the disk or medium interpreter, the code of the word processing program and the interpreter that is necessary to display the image on the screen.
In the final analysis there are two approaches to the issue of whether or not digital data is property for the purposes of theft. The first is the orthodox legal position taken by the Court of Appeal. The second is the technological reality of data in the digital space. Even although the new definition of property extends to intangibles such as electricity it cannot apply to data in the digital space because of the incoherence of the data. Even although a file may be copied from one medium to another, it remains in an incoherent state. Even although it may be inextricably associated with a medium of some sort or another, it maintains that incoherent state until it is subjected to the mediation of hardware and software that I have described above. The Court of Appeal’s “information” based approach becomes even sharper when one substitutes the word “data” for “information”. Although there is a distinction between the medium and the data, the data requires a storage medium of some sort. And it is this that is capable of being stolen
Although Marshall McLuhan intended an entirely different interpretation of the phrase, ‘the medium is the message,’ it is a truth of information in digital format.
 Burkhard Schafer and Stephen Mason, chapter 2 ‘The Characteristics of Electronic Evidence in Digital Format’ in Stephen Mason (gen ed) Electronic Evidence (3rd edn, LexisNexis Butterworths, London 2012) 2.05.
 Burkhard Schafer and Stephen Mason, chapter 2 ‘The Characteristics of Electronic Evidence in Digital Format’ 2.06.
 Marshall McLuhan, Understanding Media : The Extensions of Man (Massachusetts Institute of Technology Cambridge 1994) Ch 1
The various theories on internet regulation can be placed within a taxonomy structure . In the centre is the Internet itself. On one side are the formal theories based on traditional “real world” governance models. These are grounded in traditional concepts of law and territorial authority. Some of these model could well become a part of an “uber-model” described as the “polycentric model” – a theory designed to address specific issues in cyberspace. Towards the middle are less formal but nevertheless structured models. Largely technical or “code-based” in nature that are less formal but nevertheless exercise a form of control over Internet operation.
On the other side are informal theories that emphasise non-traditional or radical models. These models tend to be technically based, private and global in character.
What I would like to do is briefly outline aspects of each of the models. This will be a very “once over lightly” approach and further detail may be found in Chapter 3 of my text internet.law.nz. This piece also contains some new material on Internet Governance together with some reflections on how traditional sovereign/territorial governance models just won’t work within the context of the Digital Paradigm and the communications medium that is the Internet.
The Formal Theories
The Digital Realists
The “Digital Realist” school has been made famous by Judge Easterbrook’s comment that “there [is] no more a law of cyberspace than there [is] a ‘Law of the Horse.’” Easterbrook summed the theory up in this way:
“When asked to talk about “Property in Cyberspace,” my immediate reaction was, “Isn’t this just the law of the horse?” I don’t know much about cyberspace; what I do know will be outdated in five years (if not five months!); and my predictions about the direction of change are worthless, making any effort to tailor the law to the subject futile. And if I did know something about computer networks, all I could do in discussing “Property in Cyberspace” would be to isolate the subject from the rest of the law of intellectual property, making the assessment weaker.
This leads directly to my principal conclusion: Develop a sound law of intellectual property, then apply it to computer networks.”
Easterbrook’s comment is a succinct summary of the general position of the digital realism school: that the internet presents no serious difficulties, so the “rule of law” can simply be extended into cyberspace, as it has been extended into every other field of human endeavour. Accordingly, there is no need to develop a “cyber-specific” code of law.
Another advocate for the digital realist position is Jack Goldsmith. In “Against Cyberanarchy” he argues strongly against those whom he calls “regulation sceptics” who suggest that the state cannot regulate cyberspace transactions. He challenges their opinions and conclusions, arguing that regulation of cyberspace is feasible and legitimate from the perspective of jurisdiction and choice of law — in other words he argues from a traditionalist, conflict of laws standpoint. However, Goldsmith and other digital realists recognise that new technologies will lead to changes in government regulation; but they believe that such regulation will take place within the context of traditional governmental activity.
Goldsmith draws no distinction between actions in the “real” world and actions in “cyberspace” — they both have territorial consequences. If internet users in one jurisdiction upload pornography, facilitate gambling, or take part in other activities that are illegal in another jurisdiction and have effects there then, Goldsmith argues, “The territorial effects rationale for regulating these harms is the same as the rationale for regulating similar harms in the non-internet cases”. The medium that transmitted the harmful effect, he concludes, is irrelevant.
The digital realist school is the most formal of all approaches because it argues that governance of the internet can be satisfactorily achieved by the application of existing “real space” governance structures, principally the law, to cyberspace. This model emphasises the role of law as a key governance device. Additional emphasis is placed on law being national rather than international in scope and deriving from public (legislation, regulation and so on) rather than private (contract, tort and so on) sources. Digital realist theorists admit that the internet will bring change to the law but argue that before the law is cast aside as a governance model it should be given a chance to respond to these changes. They argue that few can predict how legal governance might proceed. Given the law’s long history as society’s foremost governance model and the cost of developing new governance structures, a cautious, formal “wait and see” attitude is championed by digital realists.
The Transnational Model – Governance by International Law
The transnational school, although clearly still a formal governance system, demonstrates a perceptible shift away from the pure formality of digital realism. The two key proponents of the school, Burk and Perritt, suggest that governance of the internet can be best achieved not by a multitude of independent jurisdiction-based attempts but via the medium of public international law. They argue that international law represents the ideal forum for states to harmonise divergent legal trends and traditions into a single, unified theory that can be more effectively applied to the global entity of the internet.
The transnationalists suggest that the operation of the internet is likely to promote international legal harmonisation for two reasons.
First, the impact of regulatory arbitrage and the increased importance of the internet for business, especially the intellectual property industry, will lead to a transfer of sovereignty from individual states to international and supranational organisations. These organisations will be charged with ensuring broad harmonisation of information technology law regimes to protect the interests of developed states, lower trans-border costs to reflect the global internet environment, increase opportunities for transnational enforcement and resist the threat of regulatory arbitrage and pirate regimes in less developed states.
Secondly, the internet will help to promote international legal harmonisation through greater availability of legal knowledge and expertise to legal personnel around the world.
The transnational school represents a shift towards a less formal model than the digital realism because it is a move away from national to international sources of authority. However, it still clearly belongs to the formalised end of the governance taxonomy on three grounds:
1. its reliance on law as its principal governance methodology;
2. the continuing public rather than private character of the authority on which governance rests; and
3. the fact that although governance is by international law, in the final analysis, this amounts to delegated authority from national sovereign states.
National and UN Initiatives – Governance by Governments
This discussion will be a little lengthier because there is some history the serves to illustrate how governments may approach Internet governance.
In 2011 and 2012 there were renewed calls for greater regulation of the Internet. These were driven by the events in the Middle East early in 2011 which became known as the “Arab Spring” seems more than co-incidental. The “Arab Spring” is a term that refers to anti-government protests that spread across the Middle East. These followed a successful uprising in Tunisia against former leader Zine El Abidine Ben Ali which emboldened similar anti-government protests in a number of Arab countries. The protests were characterised by the extensive use of social media to organise gatherings and spread awareness. There has, however, been some debate about the influence of social media on the political activism of the Arab Spring. Some critics contend that digital technologies and other forms of communication–videos, cellular phones, blogs, photos and text messages– have brought about the concept of a ‘digital democracy’ in parts of North Africa affected by the uprisings. Other have claimed that in order to understand the role of social media during the Arab Uprisings there is context of high rates of unemployment and corrupt political regimes which led to dissent movements within the region. There is certainly evidence of an increased uptake of Internet and social media usage over the period of the events, and during the uprising in Egypt, then President Mubarak’s State Security Investigations Service blocked access to Twitter and Facebook and on 27 January 2011 the Egyptian Government shut down the Internet in Egypt along with SMS messaging.
The G8 Meeting in Deauville May 2011
In May 2011 at G8 meeting in France, President Sarkozy issued a provocative call for stronger Internet Regulation. M. Sarkozy convened a special gathering if global “digerati” in Paris and called the rise of the Internet a “revolution” as significant as the age of exploration and the industrial revolution. This revolution did not have a flag and M. Sarkozy acknowledged that the Internet belonged to everyone, citing the “Arab Spring” as a positive example. However, he warned executives of Google, Facebook, Amazon and E-Bay who were present : “The universe you represent is not a parallel universe. Nobody should forget that governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to risk democratic chaos and anarchy.”
Mr. Sarkozy was not alone in calling existing laws and regulations inadequate to deal with the challenges of a borderless digital world. Prime Minister David Cameron of Britain stated that he would ask Parliament to review British privacy laws after Twitter users circumvented court orders preventing newspapers from publishing the names of public figures who are suspected of having had extramarital affairs but he did not go as far as M. Sarkozy who was pushing for a “civilized Internet” implying wide regulation.
However, the Deauville Communique did not go as far as M. Sarkozy may have like. It affirmed the importance of intellectual property protection, the effective protection of personal data and individual privacy, security of networks a crackdown on trafficking in children for their sexual exploitation. But it did not advocate state control of the Internet but staked out a role for governments. The communique stated:
“We discussed new issues such as the Internet which are essential to our societies, economies and growth. For citizens, the Internet is a unique information and education tool, and thus helps to promote freedom, democracy and human rights. The Internet facilitates new forms of business and promotes efficiency, competitiveness, and economic growth. Governments, the private sector, users, and other stakeholders all have a role to play in creating an environment in which the Internet can flourish in a balanced manner. In Deauville in 2011, for the first time at Leaders’ level, we agreed, in the presence of some leaders of the Internet economy, on a number of key principles, including freedom, respect for privacy and intellectual property, multi-stakeholder governance, cyber-security, and protection from crime, that underpin a strong and flourishing Internet. The “e-G8″ event held in Paris on 24 and 25 May was a useful contribution to these debates….
The Internet and its future development, fostered by private sector initiatives and investments, require a favourable, transparent, stable and predictable environment, based on the framework and principles referred to above. In this respect, action from all governments is needed through national policies, but also through the promotion of international cooperation……
As we support the multi-stakeholder model of Internet governance, we call upon all stakeholders to contribute to enhanced cooperation within and between all international fora dealing with the governance of the Internet. In this regard, flexibility and transparency have to be maintained in order to adapt to the fast pace of technological and business developments and uses. Governments have a key role to play in this model.
We welcome the meeting of the e-G8 Forum which took place in Paris on 24 and 25 May, on the eve of our Summit and reaffirm our commitment to the kinds of multi-stakeholder efforts that have been essential to the evolution of the Internet economy to date. The innovative format of the e-G8 Forum allowed participation of a number of stakeholders of the Internet in a discussion on fundamental goals and issues for citizens, business, and governments. Its free and fruitful debate is a contribution for all relevant fora on current and future challenges.
We look forward to the forthcoming opportunities to strengthen international cooperation in all these areas, including the Internet Governance Forum scheduled next September in Nairobi and other relevant UN events, the OECD High Level Meeting on “The Internet Economy: Generating Innovation and Growth” scheduled next June in Paris, the London International Cyber Conference scheduled next November, and the Avignon Conference on Copyright scheduled next November, as positive steps in taking this important issue forward.”
The ITU Meeting in Dubai December 2012
The meeting of the International Telecommunications Union (ITU) in Dubai provided the forum for further consideration of expanded Internet regulation. No less an authority than Vinton Cerf, the co-developer with Robert Kahn of the TCP/IP protocol which was one of the important technologies that made the Internet possible, sounded a warning when he said
“But today, despite the significant positive impact of the Internet on the world’s economy, this amazing technology stands at a crossroads. The Internet’s success has generated a worrying desire by some countries’ governments to create new international rules that would jeopardize the network’s innovative evolution and its multi-faceted success.
This effort is manifesting itself in the UN General Assembly and at the International Telecommunication Union – the ITU – a United Nations organization that counts 193 countries as its members, each holding one vote. The ITU currently is conducting a review of the international agreements governing telecommunications and it aims to expand its regulatory authority to include the Internet at a treaty summit scheduled for December of this year in Dubai. ….
Today, the ITU focuses on telecommunication networks, radio frequency allocation, and infrastructure development. But some powerful member countries see an opportunity to create regulatory authority over the Internet. Last June, the Russian government stated its goal of establishing international control over the Internet through the ITU. Then, last September, the Shanghai Cooperation Organization – which counts China, Russia, Tajikistan, and Uzbekistan among its members – submitted a proposal to the UN General Assembly for an “international Code of Conduct for Information Security.” The organization’s stated goal was to establish government-led “international norms and rules standardizing the behavior of countries concerning information and cyberspace.” Other proposals of a similar character have emerged from India and Brazil. And in an October 2010 meeting in Guadalajara, Mexico, the ITU itself adopted a specific proposal to “increase the role of ITU in Internet governance.”
As a result of these efforts, there is a strong possibility that this December the ITU will significantly amend the International Telecommunication Regulations – a multilateral treaty last revised in 1988 – in a way that authorizes increased ITU and member state control over the Internet. These proposals, if implemented, would change the foundational structure of the Internet that has historically led to unprecedented worldwide innovation and economic growth.”
The ITU, originally the International Telegraph Union, is a specialised agency of the United Nations and is responsible for issues concerning information and communication technologies. It was originally founded in 1865 and in the past has been concerned with technical communications issues such as standardisation of communications protocols (which was one of its original purposes) that management of the international radio-frequency spectrum and satellite orbit resources and the fostering of sustainable, affordable access to ICT. It took its present name in 1934 and in 1947 became a specialised agency of the United Nations.
The position of the ITU approaching the 2012 meeting in Dubai was that, given the vast changes that had taken place in the world of telecommunications and information technologies, the International Telecommunications Regulations (ITR)that had been revised in 1988 were no longer in keeping with modern developments. Thus, the objective of the 2012 meeting was to revise the ITRs to suit the new age. After a controversial meeting in Dubai in December 2012 the Final Acts of the Conference were published. The controversial issue was that there was a proposal to redefine the Internet as a system of government-controlled, state supervised networks. The proposal was contained in a leaked document by a group of members including Russia, China, Saudi Arabia, Algeria, Sudan, Egypt and the United Arab Emirates. However, the proposal was withdrawn. But the governance model defined the Internet as an:
“international conglomeration of interconnected telecommunication networks,” and that “Internet governance shall be effected through the development and application by governments,” with member states having “the sovereign right to establish and implement public policy, including international policy, on matters of Internet governance.”
This wide-ranging proposal went well beyond the traditional role of the ITU and other members such as the United States, European countries, Australia, New Zealand and Japan insisted that the ITU treaty should apply to traditional telecommunications systems. The resolution that won majority support towards the end of the conference stated that the ITU’s leadership should “continue to take the necessary steps for ITU to play an active and constructive role in the multi-stakeholder model of the internet.” However, the Treaty did not receive universal acclaim. United States Ambassador Kramer of the announced that the US would not be signing the new treaty. He was followed by the United Kingdom. Sweden said that it would need to consult with its capital (code in UN-speak for “not signing”). Canada, Poland, the Netherlands, Denmark, Kenya, New Zealand, Costa Rica, and the Czech Republic all made similar statements. In all, 89 countries signed while 55 did not.
Quite clearly there is a considerable amount of concern about the way in which national governments wish to regulate or in some way govern and control the Internet. Although at first glance this may seem to be directed at the content layer, and amount to a rather superficial attempt to embark upon the censorship of content passing through a new communications technology, the attempt to regulate through a technological forum such as the ITU clearly demonstrates that governments wish to control not only content but the various transmission and protocol layers of the Internet and possibly even the backbone itself. Continued attempts to interfere with aspects of the Internet or embark upon an incremental approach to regulation have resulted in expressions of concern from another Internet pioneer, Sir Tim Berners-Lee who, in addition to claiming that governments are suppressing online freedom has issued a call for a Digital Magna Carta.
Clearly the efforts described indicate that some form of national government or collective government form of Internet Governance is on the agenda. Already the United Nations has become involved in the development of Internet Governance policy with the establishment of the Internet Governance Forum.
The Internet Governance Forum
The Internet Governance Forum describes itself as bringing
“people together from various stakeholder groups as equals, in discussions on public policy issues relating to the Internet. While there is no negotiated outcome, the IGF informs and inspires those with policy-making power in both the public and private sectors. At their annual meeting delegates discuss, exchange information and share good practices with each other. The IGF facilitates a common understanding of how to maximize Internet opportunities and address risks and challenges that arise.
The IGF is also a space that gives developing countries the same opportunity as wealthier nations to engage in the debate on Internet governance and to facilitate their participation in existing institutions and arrangements. Ultimately, the involvement of all stakeholders, from developed as well as developing countries, is necessary for the future development of the Internet.”
The Internet Governance Forum is an open forum which has no members. It was established by the World Summit on the Information Society in 2006. Since then, it has become the leading global multi-stakeholder forum on public policy issues related to Internet governance.
Its UN mandate gives it convening power and the authority to serve as a neutral space for all actors on an equal footing. As a space for dialogue it can identify issues to be addressed by the international community and shape decisions that will be taken in other forums. The IGF can thereby be useful in shaping the international agenda and in preparing the ground for negotiations and decision-making in other institutions. The IGF has no power of redistribution, and yet it has the power of recognition – the power to identify key issues.
A small Secretariat was set up in Geneva to support the IGF, and the UN Secretary-General appointed a group of advisers, representing all stakeholder groups, to assist him in convening the IGF. The United Nations General Assembly agreed in December 2010 to extend the IGF’s mandate for another five years. The IGF is financed through voluntary contributions.”
Zittrain describes the IGF as “diplomatically styled talk-shop initiatives like the World Summit on the Information Society and its successor, the Internet Governance Forum, where “stakeholders” gather to express their views about Internet governance, which is now more fashionably known as “the creation of multi-stakeholder regimes.”
Less Formal Yet Structured
The Engineering and Technical Standards Community
The internet governance models under discussion have in common the involvement of law or legal structures in some shape or form or, in the case of the cyber anarchists, an absence thereof.
Essentially internet governance falls within two major strands:
1. The narrow strand involving the regulation of technical infrastructure and what makes the internet work.
2. The broad strand dealing with the regulation of content, transactions and communication systems that use the internet.
The narrow strand regulation of internet architecture recognises that the operation of the internet and the superintendence of that operation involves governance structures that lack the institutionalisation that lies behind governance by law.
The history of the development of the internet although having its origin with the United States Government has had little if any direct government involvement or oversight. The Defence Advanced Research Projects Administration (DARPA) was a funding agency providing money for development. It was not a governing agency nor was it a regulator. Other agencies such as the Federal Networking Council and the National Science Foundation are not regulators, they are organisations that allow user agencies to communicate with one another. Although the United States Department of Commerce became involved with the internet, once potential commercial implications became clear it too has maintained very much of a hands-off approach and its involvement has primarily been with ICANN with whom the Department has maintained a steady stream of Memoranda of Understanding over the years.
Technical control and superintendence of the internet rests with the network engineers and computer scientists who work out problems and provide solutions for its operation. There is no organisational charter. The structures within which decisions are made are informal, involving a network of interrelated organisations with names which at least give the appearance of legitimacy and authority. These organisations include the Internet Society (ISOC), an independent international non-profit organisation founded in 1992 to provide leadership and internet-related standards, education and policy around the world. Several other organisations are associated with ISOC. The Internet Engineering Taskforce (IETF), is a separate legal entity, which has as its mission to make the internet work better by producing high quality, relevant technical documents that influence the way people design, use and manage the internet.
The Internet Architecture Board (IAB) is an advisory body to ISOC and also a committee of IETF, which has an oversight role. Also housed within ISOC is the IETF Administrative Support Activity, which is responsible for the fiscal and administrative support of the IETF Standards Process. The IETF Administrative Support Activity (IASA) has a committee, the IETF Administrative Oversight Committee (IAOC), which carries out the responsibilities of the IASA supporting the Internet Engineering Steering Group (IESG) working groups, the Internet Architecture Board (IAB), the Internet Research Taskforce (IRTF) and Steering Groups (IRSG). The IAOC oversees the work of the IETF Administrative Director (IAD) who has the day-to-day operational responsibility of providing the fiscal and administrative support through other activities, contractors and volunteers.
The central hub of these various organisations is the IETF. This organisation has no coercive power, but is responsible for establishing internet standards, some of which such as TCP/IP are core standards and are non-optional. The compulsory nature of these standards do not come from any regulatory powers, but because of the nature of the critical mass of network externalities involving internet users. Standards become economically mandatory and there is an overall acceptance of IETF standards which maintain core functionality of the internet.
A characteristic of IETF, and indeed all of the technical organisations involved in internet functionality, is the open process that theoretically allows any person to participate. The other characteristic of internet network organisations is the nature of the rough consensus by which decisions are made. Proposals are circulated in the form of a Request for Comment to members of the internet, engineering and scientific communities and from this collaborative and consensus-based approach a new standard is agreed.
Given that the operation of the internet involves a technical process and the maintenance of the technical process depends on the activities of scientific and engineering specialists, it is fair to conclude that a considerable amount of responsibility rests with the organisations who set and maintain standards. Many of these organisations have developed a considerable power structure them without any formal governmental or regulatory oversight – an issue that may well need to be addressed. Another issue is whether these organisations have a legitimate basis to do what they are doing with such an essential infrastructure as the internet. The objective of organisations such IETF is a purely technical one that has little if any public policy ramifications. Its ability to work outside government bureaucracyenables greater efficiency.
However, the internet’s continued operation depends on a number of interrelated organisations which, while operating in an open and transparent manner in a technical collaborative consensus-based model, have little understanding of the public interest ramifications of their decisions. This aspect of internet governance is often overlooked. The technical operation and maintenance of the internet is superintended by organisations that have little or no interactivity with any of the formalised power structures that underlie the various “governance by law” models of internet governance. The “technical model” of internet governance is an anomaly arising not necessarily from the technology, but from its operation.
Of those involved in the technical sphere of Internet governance, ICANN is perhaps the best known. Its governance of the “root” or addressing systems makes it a vital player in the Internet governance taxonomy and for that reason requires some detailed consideration.
ICANN is the Internet Corporation for Assigned Names and Numbers (ICANN). This organisation was formed in October 1998 at the direction of the Clinton Administration to take responsibility for the administration of the Internet’s Domain Name System (DNS). Since that time ICANN has been dogged by controversy and criticism from all sides. ICANN wields enormous power as the sole controlling authority of the DNS, which has a “chokehold” over the internet because it is the only aspect of the entire decentralised, global system of the internet that is administered from a single, central point. By selectively editing, issuing or deleting net identities ICANN is able to choose who is able to access cyberspace and what they will see when they are there. ICANN’s control effectively amounts, in the words of David Post, to “network life or death”. Further, if ICANN chooses to impose conditions on access to the internet, it can indirectly project its influence over every aspect of cyberspace and the activity that takes place there.
The obvious implication for governance theorists is that the ICANN model is not a theory but a practical reality. ICANN is the first indigenous cyberspace governance institution to wield substantive power and demonstrate a real capacity for effective enforcement. Ironically, while other internet governance models have demonstrated a sense of purpose but an acute lack of power, ICANN has suffered from excess power and an acute lack of purpose. ICANN arrived at its present position almost, but not quite, by default and has been struggling to find a meaningful raison d’être since. In addition it is pulled by opposing forces all anxious to ensure their vision of the new frontier prevails
ICANN’s “democratic” model of governance has been attacked as unaccountable, anti-democratic, subject to regulatory capture by commercial and governmental interests, unrepresentative, and excessively Byzantine in structure. ICANN has been largely unresponsive to these criticisms and it has only been after concerted publicity campaigns by opponents that the board has publicly agreed to change aspects of the process.
As a governance model, a number of key points have emerged:
1. ICANN demonstrates the internet’s enormous capacity for marshalling global opposition to governance structures that are not favourable to the interests of the broader internet community.
2. Following on from point one, high profile, centralised institutions such as ICANN make extremely good targets for criticism.
3. Despite enormous power and support from similarly powerful backers, public opinion continues to prove a highly effective tool, at least in the short run, for stalling the development of unfavourable governance schemes.
4. ICANN reveals the growing involvement of commercial and governmental interests in the governance of the internet and their reluctance to be directly associated with direct governance attempts.
5. ICANN, it demonstrates an inability to project its influence beyond its core functions to matters of general policy or governance of the internet.
ICANN lies within the less formal area of governance taxonomy in that it operates with a degree of autonomy it retains a formal character. Its power is internationally based (and although still derived from the United States government, there is a desire by the US to “de-couple” its involvement with ICANN). It has greater private rather than public sources of authority, in that its power derives from relationships with registries, ISPs and internet users rather than sovereign states. Finally, it is evolving towards a technical governance methodology, despite an emphasis on traditional decision-making structures and processes.
The Polycentric Model of Internet Governance
The Polycentric Model embraces, for certain purposes, all of the preceding models. It does not envelop them, but rather employs them for specific governance purposes.
This theory is one that has been developed by Professor Scott Shackelford. Shackelford in his article “Toward Cyberpeace: Managing Cyberattacks Through Polycentric Governance” and locates Internet Governance within a special context of cybersecurity and the maintenance of cyberpeace He contends that the international community must come together to craft a common vision for cybersecurity while the situation remains malleable. Given the difficulties of accomplishing this in the near term, bottom-up governance and dynamic, multilevel regulation should be undertaken consistent with polycentric analysis.
While he sees a role for governments and commercial enterprises he proposes a mixed model. Neither governments nor the private sector should be put in exclusive control of managing cyberspace since this could sacrifice both liberty and innovation on the mantle of security, potentially leading to neither.
The basic notion of polycentric governance is that a group facing a collective action problem should be able to address it in whatever way they see fit, which could include using existing or crafting new governance structures; in other words, the governance regime should facilitate the problem-solving process.
The model demonstrates the benefits of self-organization, networking regulations at multiple levels, and the extent to which national and private control can co-exist with communal management. A polycentric approach recognizes that diverse organizations and governments working at multiple levels can create policies that increase levels of cooperation and compliance, enhancing flexibility across issues and adaptability over time.
Such an approach, a form of “bottom-up” governance, contrasts with what may be seen as an increasingly state-centric approach to Internet Governance and cybersecurity which has become apparent in for a such as the G8 Conference in Deauville in 2011 and the ITU Conference in Dubai in 2012. The approach also recognises that cyberspace has its own qualities or affordances, among them its decentralised nature along with the continuing dynamic change flowing from permissionless innovation. To put it bluntly it is difficult to forsee the effects of regulatory efforts which a generally sluggish in development and enactment, with the result that the particular matter which regulation tried to address has changed so that the regulatory system is no longer relevant. Polycentric regulation provides a multi-faceted response to cybersecurity issues in keeping with the complexity of crises that might arise in cyberspace.
So how should the polycentric model work. First, allies should work together to develop a common code of cyber conduct that includes baseline norms, with negotiations continuing on a harmonized global legal framework. Second, governments and CNI operators should establish proactive, comprehensive cybersecurity policies that meet baseline standards and require hardware and software developers to promote resiliency in their products without going too far and risking balkanization. Third, the recommendations of technical organizations such as the IETF should be made binding and enforceable when taken up as industry best practices. Fourth, governments and NGOs should continue to participate in U.N. efforts to promote global cybersecurity, but also form more limited forums to enable faster progress on core issues of common interest. And fifth, training campaigns should be undertaken to share information and educate stakeholders at all levels about the nature and extent of the cyber threat.
Code is Law
Located centrally within the taxonomy and closely related to the Engineering and Technology category of governance models is the “code is law” model, designed by Harvard Professor, Lawrence Lessig, and, to a lesser extent, Joel Reidenberg. The school encompasses in many ways the future of the internet governance debate. The system demonstrates a balance of opposing formal and informal forces and represents a paradigm shift in the way internet governance is conceived because the school largely ignores the formal dialectic around which the governance debate is centred and has instead developed a new concept of “governance and the internet”. While Lessig’s work has been favourably received even by his detractors, it is still too early to see if it is indeed a correct description of the future of internet governance, or merely a dead end. Certainly, it is one of the most discussed concepts of cyberspace jurisprudence.
Lessig asserts that human behaviour is regulated by four “modalities of constraint”: law, social norms, markets and architecture. Each of these modalities influences behaviour in different ways:
1. law operates via sanction;
2. markets operate via supply and demand and price;
3. social norms operate via human interaction; and
4. architecture operates via the environment.
Governance of behaviour can be achieved by any one or any combination of these four modalities. Law is unique among the modalities in that it can directly influence the others.
Lessig argues that in cyberspace, architecture is the dominant and most effective modality to regulate behaviour. The architecture of cyberspace is “code” — the hardware and software — that creates the environment of the internet. Code is written by code writers; therefore it is code writers, especially those from the dominant software and hardware houses such as Microsoft and AOL, who are best placed to govern the internet. In cyberspace, code is law in the imperative sense of the word. Code determines what users can and cannot do in cyberspace.
“Code is law” does not mean lack of regulation or governmental involvement, although any regulation must be carefully applied. Neil Weinstock Netanel argues that “contrary to the libertarian impulse of first generation cyberspace scholarship, preserving a foundation for individual liberty, both online and off, requires resolute, albeit carefully tailored, government intervention”. Internet architecture and code effectively regulate individual activities and choices in the same way law does and that market actors need to use these regulatory technologies in order to gain a competitive advantage. Thus, it is the role of government to set the limits on private control to facilitate this.
The crux of Lessig’s theory is that law can directly influence code. Governments can regulate code writers and ensure the development of certain forms of code. Effectively, law and those who control it, can determine the nature of the cyberspace environment and thus, indirectly what can be done there. This has already been done. Code is being used to rewrite Copyright Law. Technological Protection Measures (TPMs) allow content owners to regulate the access and/or use to which a consumer may put digital content. Opportunities to exercise fair uses or permitted uses can be limited beyond normal user expectations and beyond what the law previously allowed for analogue content. The provision of content in digital format, the use of TPMs and the added support that legislation gives to protect TPMs effectively allows content owners to determine what limitations they will place upon users’ utilisation of their material. It is possible that the future of copyright lies not in legislation (as it has in the past) but in contract.
Informal Models and Aspects of Digital Liberalism
Digital liberalism is not so much a model of internet governance as it is a school of theorists who approach the issue of governance from roughly the same point on the political compass: (neo)-liberalism. Of the models discussed, digital liberalism is the broadest. It encompasses a series of heterogeneous theories that range from the cyber-independence writings of John Perry Barlow at one extreme, to the more reasoned private legal ordering arguments of Froomkin, Post and Johnson at the other. The theorists are united by a common “hands off” approach to the internet and a tendency to respond to governance issues from a moral, rather than a political or legal perspective.
Regulatory Arbitrage – “Governance by whomever users wish to be governed by”
The regulatory arbitrage school represents a shift away from the formal schools, and towards digital liberalism. “Regulatory arbitrage” is a term coined by the school’s principal theorist, Michael Froomkin, to describe a situation in which internet users “migrate” to jurisdictions with regulatory regimes that give them the most favourable treatment. Users are able to engage in regulatory arbitrage by capitalising on the unique geographically neutral nature of the internet. For example, someone seeking pirated software might frequent websites geographically based in a jurisdiction that has a weak intellectual property regime. On the other side of the supply chain, the supplier of gambling services might, despite residing in the United States, deliberately host his or her website out of a jurisdiction that allows gambling and has no reciprocal enforcement arrangements with the United States.
Froomkin suggests that attempts to regulate the internet face immediate difficulties because of the very nature of the entity that is to be controlled. He draws upon the analogy of the mythological Hydra, but whereas the beast was a monster, the internet may be predominantly benign. Froomkin identifies the internet’s resistance to control as being caused by the following two technologies:
1. The internet is a packet-switching network. This makes it difficult for anyone, including governments, to block or monitor information originating from large numbers of users.
2. Powerful military-grade cryptography exists on the internet that users have access to that can, if used properly, make messages unreadable to anyone but the intended recipient.
As a result of the above, internet users have access to powerful tools which can be used to enable anonymous communication. This is unless, of course, their governments have strict access control, an extensive monitoring programme or can persuade its citizens not to use these tools by having liability rules or criminal law.
Froomkin’s theory is principally informal in character. Private users, rather than public institutions are responsible for choosing the governance regime they adhere to. The mechanism that allows this choice is technical and works in opposition to legally based models. Finally, the model is effectively global as users choose from a world of possibilities to decide which particular regime(s) to submit to, rather than a single national regime. While undeniably informal.
Unlike digital liberalists who advocate a separate internet jurisdiction encompassing a multitude of autonomous self-regulating regimes within that jurisdiction, Froomkin argues that the principal governance unit of the internet will remain the nation-state. He argues that users will be free to choose from the regimes of states rather than be bound to a single state, but does not yet advocate the electronic federalism model of digital liberalism.
Digital Libertarianism – Johson and Post
Digital liberalism is the oldest of the internet governance models and represents the original response to the question: “How will the internet be governed?” Digital liberalism developed in the early 1990s as the internet began to show the first inklings of its future potential. The development of a Graphical User Interface together with web browsers such as Mosaic made the web accessible to the general public for the first time. Escalating global connectivity and a lack of understanding or reaction by world governments contributed to a sense of euphoria and digital freedom that was reflected in the development of digital liberalism.
In its early years digital liberalism evolved around the core belief that “the internet cannot be controlled” and that consequently “governance” was a dead issue. By the mid-1990s advances in technology and the first government attempts to control the internet saw this descriptive claim gradually give way to a competing normative claim that “the internet can be controlled but it should not be”. These claims are represented as the sub-schools of digital liberalism — cyberanarchism and digital libertarianism.
In “And How Shall the Net be Governed?” David Johnson and David Post posed the following questions:
Now that lots of people use (and plan to use) the internet, many — governments, businesses, techies, users and system operators (the “sysops” who control ID issuance and the servers that hold files) — are asking how we will be able to:
(1) establish and enforce baseline rules of conduct that facilitate reliable communications and trustworthy commerce; and
(2) define, punish and prevent wrongful actions that trash the electronic commons or impose harm on others.
In other words, how will cyberspace be governed, and by what right?
Post and Johnson point out that one of the advantages of the internet is its chaotic and ungoverned nature. As to the question of whether the net must be governed at all they use the example of the three-Judge Federal Court in Philadelphiathat “threw out the Communications Decency Act on First Amendment grounds seemed thrilled by the ‘chaotic’ and seemingly ungovernable character of the net”. Post and Johnson argue that because of its decentralised architecture and lack of a centralised rule-making authority the net has been able to prosper. They assert that the freedom the internet allows and encourages, has meant that sysops have been free to impose their own rules on users. However, the ability of the user to choose which sites to visit, and which to avoid, has meant the tyranny of system operators has been avoided and the adverse effect of any misconduct by individual users has been limited.
Johnson and Post propose the following four competing models for net governance:
1. Existing territorial sovereigns seek to extend their jurisdiction and amend their own laws as necessary to attempt to govern all actions on the net that have substantial impacts upon their own citizenry.
2. Sovereigns enter into multilateral international agreements to establish new and uniform rules specifically applicable to conduct on the net.
3. A new international organisation can attempt to establish new rules — a new means of enforcing those rules and of holding those who make the rules accountable to appropriate constituencies.
4. De facto rules may emerge as the result of the interaction of individual decisions by domain name and IP registries (dealing with conditions imposed on possession of an on-line address), by system operators (local rules to be applied, filters to be installed, who can sign on, with which other systems connection will occur) and users (which personal filters will be installed, which systems will be patronised and the like).
The first three models are centralised or semi-centralised systems and the fourth is essentially a self-regulatory and evolving system. In their analysis, Johnson and Post consider all four and conclude that territorial laws applicable to online activities where there is no relevant geographical determinant are unlikely to work, and international treaties to regulate, say, ecommerce are unlikely to be drawn up.
Johnson and Post proposed a variation of the third option — a new international organisation that is similar to a federalist system, termed “net federalism”.
In net federalism, individual network systems rather than territorial sovereignty are the units of governance. Johnson and Post observe that the law of the net has emerged, and can continue to emerge, from the voluntary adherence of large numbers of network administrators to basic rules of law (and dispute resolution systems to adjudicate the inevitable inter-network disputes), with individual users voting with their electronic feet to join the particular systems they find most congenial. Within this model multiple network confederations could emerge. Each may have individual “constitutional” principles — some permitting and some prohibiting, say, anonymous communications, others imposing strict rules regarding redistribution of information and still others allowing freer movement — enforced by means of electronic fences prohibiting the movement of information across confederation boundaries.
Digital liberalism is clearly an informal governance model and for this reason has its attractions for those who enjoyed the free-wheeling approach to the internet in the early 1990s. It advocates almost pure private governance, with public institutions playing a role only in so much as they validate the existence and independence of cyber-based governance processes and institutions. Governance is principally to be achieved by technical solutions rather than legal process and occurs at a global rather than national level. Digital liberalism is very much the antithesis of the digital realist school and has been one of the two driving forces that has characterised the internet governance debate in the last decade.
Cyberanarchism – John Perry Barlow
In 1990, the FBI were involved in a number of actions against a perceived “computer security threat” posed by a Texas role-playing game developer named Steve Jackson. Following this, John Perry Barlow and Mitch Kapor formed the Electronic Freedom Foundation. Its mission statement says that it was “established to help civilize the electronic frontier; to make it truly useful and beneficial not just to a technical elite, but to everyone; and to do this in a way which is in keeping with our society’s highest traditions of the free and open flow of information and communication”.
One of Barlow’s significant contributions to thinking on internet regulation was the article, “Declaration of the Independence of Cyberspace”, although idealistic in expression and content, eloquently expresses a point of view held by many regarding efforts to regulate cyberspace. The declaration followed the passage of the Communications Decency Act. In “The Economy of Ideas: Selling Wine without Bottles on the Global Net”,Barlow challenges assumptions about intellectual property in the digital online environment. He suggests that the nature of the internet environment means that different legal norms must apply. While the theory has its attractions, especially for the young and the idealistic, the fact of the matter is that “virtual” actions are grounded in the real world, are capable of being subject to regulation and, subject to jurisdiction, are capable of being subject to sanction. Indeed, we only need to look at the Digital Millennium Copyright Act (US) and the Digital Agenda Act 2000 (Australia) to gain a glimpse of how, when confronted with reality, Barlow’s theory dissolves.
In understanding how regulators approach the control of internet content, one must first understand some of the assumptions that appear to underlie any system of data network regulation.
First and foremost, sovereign states have the right to regulate activity that takes place within their own borders. This right to regulate is moderated by certain international obligations. Of course there are certain difficulties in identifying the exact location of certain actions, but the internet only functions at the direction of the persons who use it. These people live, work, and use the internet while physically located within the territory of a sovereign state and so it is unquestionable that states have the authority to regulate their activities.
A second assumption is that a data network infrastructure is critical to the continued development of national economies. Data networks are a regular business tool like the telephone. The key to the success of data networking infrastructure is its speed, widespread availability, and low cost. If this last point is in doubt, one need only consider that the basic technology of data networking has existed for more than 20 years. The current popularity of data networking, and of the internet generally, can be explained primarily by the radical lowering of costs related to the use of such technology. A slow or expensive internet is no internet at all.
The third assumption is that international trade requires some form of international communication. As more communication takes place in the context of data networking, then continued success in international trade will require sufficient international data network connections.
The fourth assumption is that there is a global market for information. While it is still possible to internalise the entire process of information gathering and synthesis within a single country, this is an extremely costly process. If such expensive systems represent the only source of information available it will place domestic businesses at a competitive disadvantage in the global marketplace.
The final assumption is that unpredictability in the application of the law or in the manner in which governments choose to enforce the law will discourage both domestic and international business activity. In fashioning regulations for the internet, it is important that the regulations are made clear and that enforcement policies are communicated in advance so that persons have adequate time to react to changes in the law.
Governance and the Properties of the Digital Paradigm
Regulating or governing cyberspace faces challenges that lie within the properties or affordances of the Digital Paradigm. To begin with, territorial sovereignty concepts which have been the basis for most regulatory or governance activity rely on physical and defined geographical realities. By its nature, a communications system like the Internet challenges that model. Although the Digital Realists assert that effectively nothing has changed, and that is true to a limited extent, the governance functions that can be exercised are only applicable to that part of cyberspace that sits within a particular geographical space. Because the Internet is a distributed system it is impossible for any one sovereign state to impose its will upon the entire network. It is for this reason that some nations are setting up their own networks, independent of the Internet, although the perception is that the Internet is controlled by the US, the reality is that with nationally based “splinternets” sovereigns have greater ability to assert control over the network both in terms of the content layer and the various technical layers beneath that make up the medium. The distributed network presents the first challenge to national or territorially based regulatory models.
Of course aspects of sovereign power may be ceded by treaty or by membership of international bodies such as the United Nations. But does, say, the UN have the capacity to impose a worldwide governance system over the Internet. True, it created the IGF but that organisation has no power and is a multi-stakeholder policy think tank. Any attempt at a global governance model requires international consensus and, as the ITU meeting in Dubai in December 2012 demonstrated, that is not forthcoming at present.
Two other affordances of the Digital Paradigm challenge the establishment of tradition regulatory or governance systems. Those affordances are continuing disruptive change and permissionless innovation. The very nature of the legislative process is measured. Often it involves cobbling a consensus. All of this takes time and by the time there is a crystallised proposition the mischief that the regulation is trying to address either no longer exists or has changed or taken another form. The now limited usefulness (and therefore effectiveness) of the provisions of s.122A – P of the New Zealand Copyright Act 1994 demonstrate this proposition. Furthermore, the nature of the legislative process involving reference to Select Committees and the prioritisation of other legislation within the time available in a Parliamentary session means that a “swift response” to a problem is very rarely possible.
Permissionless innovation adds to the problem because as long as this continues, and there is no sign that the inventiveness of the human mind is likely to slow down, developers and software writers will continue to change the digital landscape meaning that the target of a regulatory system may be continually moving, and certainty of law, a necessity in any society that operates under the Rule of Law, may be compromised. Again, the example of the file sharing provisions of the New Zealand Copyright Act provide an example. The definition of file sharing is restricted to a limited number of software applications – most obviously Bit Torrent. Work arounds such as virtual private networks and magnet links, along with anonymisation proxies fall outside the definition. In addition the definition addresses sharing and does not include a person who downloads but does not share by uploading infringing content.
Associated with disruptive change and permissionless innovation are some other challenges to traditional governance thinking. Participation and interactivity, along with exponential dissemination emphasise the essentially bottom up participatory nature of the Internet ecosystem. Indeed this is reflected in the quality of permissionless innovation where any coder may launch an app without any regulatory sign-off. The Internet is perhaps the greatest manifestation of democracy that there has been. It is the Agora of Athens on a global scale, a cacophony of comment, much of it trivial but the fact is that everyone has the opportunity to speak and potentially to be heard. Spiro Agnew’s “silent majority” need be silent no longer. The events of the Arab Spring showed the way in which the Internet can be used in the face of oppressive regimes in motivating populaces. It seems unlikely that an “undemocratic” regulatory regime could be put in place absent the “consent of the governed” and despite the usual level of apathy that occurs in political matters, it seems unlikely that, given its participatory nature, netizens would tolerate such interference.
Perhaps the answer to the issue of Internet Governance is already apparent – a combination of Lessig’s Code is Law and the technical standards organisations that actually make the Internet work, such as ISOC, ITEF and ICANN. Much criticism has been levelled at ICANN’s lack of accountability, but in many respects similar issues arise with the IETF and IAB, dominated as they are by groups of engineers. But in the final analysis, perhaps this is the governance model that is the most suitable. The objective of engineers is to make systems work at the most efficient level. Surely this is the sole objective of any regulatory regime. Furthermore, governance by technicians, if it can be called that, contains safeguards against political, national or regional capture. By all means, local governments may regulate content. But that is not the primary objective of Internet governance. Internet governance addresses the way in which the network operates. And surely that is an engineering issue rather than a political one.
The Last Word
Perhaps the last word on the general topic of internet regulation should be left to Tsutomu Shinomura, a computational physicist and computer security expert who was responsible for tracking down the hacker Kevin Mitnick which he recounted in the excellent book Takedown:
The network of computers known as the internet began as a unique experiment in building a community of people who shared a set of values about technology and the role computers could play in shaping the world. That community was based on a shared sense of trust. Today, the electronic walls going up everywhere on the Net are the clearest proof of the loss of that trust and community. It’s a great loss for all of us.
Arising from the pre-digital paradigm are two concepts that had important implications for privacy. Their continued validity as a foundation for privacy protection has been challenged by the digital paradigm. The terms are practical and partial obscurity which are both descriptive of information accessibility and recollection in the pre-digital paradigm and of a challenge imposed by the digital paradigm, especially for privacy. The terms, as will become apparent, are interrelated.
Practical obscurity refers to the quality of availability of information which may be of a private or public nature. Such information is usually in hard copy format, may be indexed, is in a central location or locations, is frequently location-dependent in that the information that is in a particular location will refer only to the particular area served by that location, requires interaction with officials or bureaucrats to locate the information and, finally, in terms of accessing the information, requires some knowledge of the particular file within which the information source lies. Practical obscurity means that information is not indexed on key words or key concepts but generally is indexed on the basis of individual files or in relation to a named individual or named location. Thus, it is necessary to have some prior knowledge of information to enable a search for the appropriate file to be made.
Partial obscurity addresses information of a private nature which may earlier have been in the public arena, either in a newspaper, television or radio broadcast or some other form of mass media communication whereby the information communicated is, at a later date, recalled in part but where, as the result of the inability of memory to retain all the detail of all of the information that has been received by an individual, has become subsumed. Thus, a broad sketch of the information renders the details obscure, only leaving the major heads of the information available in memory, hence the term partial obscurity. To recover particulars of the information will require resort to film, video, radio or newspaper archives, thus bringing into play the concepts of practical obscurity. Partial obscurity may enable information which is subject to practical obscurity to be obtained more readily because some of the informational references enabling the location of the practically obscure information can be provided.
The Digital Paradigm and Digital Information Technologies challenge these concepts. I have written elsewhere about the nature of the underlying properties or qualities of the digital medium that sits beneath the content or the “message”. Peter Winn has made the comment “When the same rules that have been worked out for the world of paper records are applied to electronic records, the result does not preserve the balance worked out between the competing policies in the world of paper records, but dramatically alters that balance.”
A property present in digital technologies and very relevant to this discussion is that of searchability. Digital systems allow the retrieval of information with a search utility that can take place “on the fly” and may produce results that are more comprehensive than a mere index. The level of analysis that may be undertaken may be deeper than mere information drawn from the text itself. Writing styles and the use of language or “stock phrases” may be undertaken, thus allowing a more penetrating and efficient analysis of the text than was possible in print.
The most successful search engine is Google which has been available since 1998. So pervasive and popular is Google’s presence that modern English has introduced the verb “to Google” which means “To search for information about (a person or thing) using the Google search engine” or “To use the Google search engine to find information on the Internet”. The ability to locate information using search engines returns us to the print based properties of fixity and preservation and also enhances the digital property of “the document that does not die”
A further property presented by digital systems is that of accessibilty. If one has the necessary equipment – a computer, modem\router and an internet connection – information is accessible to an extent not possible in the pre-digital environment. In that earlier paradigm, information was located across a number of separate media. Some had the preservative quality of print. Some, such as television or radio, required personal attendance at a set time. In some cases information may be located in a central repository like a library or archive. These are aspects of partial and practical obscurity
The Internet and convergence reverses the pre-digital activity of information seeking to one of information obtaining. The inquirer need not leave his or her home or office and go to another location where the information may be. The information is delivered via the Internet. As a result of this, with the exception of the time spent locating the information via Google, more time can be spent considering, analysing or following up the information. Although this may be viewed as an aspect of information dissemination, the means of access is revolutionarily different.
Associated with this characteristic of informational activity is the way in which the Internet enhances the immediacy of information. Not only is the inquirer no longer required to leave his or her home of place of work but the information can be delivered at a speed that is limited only by the download speed of an internet connection. Thus information which might have involved a trip to a library, a search through index cards and a perusal of a number of books or articles before the information sought was obtained, now, by means of the Internet may take a few keystrokes and mouse clicks and a few seconds for the information to be presented on screen
This enhances our expectations about the access to and availability of information. We expect the information to be available. If Google can’t locate it, it probably doesn’t exist on-line. If the information is available it should be presented to us in seconds. Although material sought from Wikipedia may be information rich, one of the most common complaints about accessability is the time that it takes to download onto a user’s computer. Yet in the predigital age a multi-contributing information resource (an encyclopedia) could only be located at a library and the time in accessing that information could be measured in hours depending upon the location of the library and the efficiency of the transport system used.
Associated with accessibility of information is the fact that it can be preserved by the user. The video file can be downloaded. The image or the text can be copied. Although this has copyright implications, substantial quantities of content are copied and are preserved by users, and frequently may be employed for other purposes such as inclusion in projects or assignments or academic papers. The “cut and paste” capabilities of digital systems are well known and frequently employed and are one of the significant consequences of information accessibility that the Internet allows.
The “Google Spain” Decision and the “Right to Be Forgotten”
The decision of the European Court of Justice in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González, has the potential to significantly change the informational landscape enabled by digital technologies. I do not intend to analyse the entire decision but rather focus on one aspect of it – the discussion about the so-called “right to be forgotten.” The restrictions placed on Google and other search engines as opposed to the provider of the particular content demonstrates a significant inconsistency of approach that is concerning.
The complaint by Mr Gonzales was this. When an internet user entered Mr Costeja González’s name in the Google search engine of he or she would obtain links to two pages of the La Vanguardia’s newspaper, of 19 January and 9 March 1998 respectively In those publications was an announcement mentioning Mr Costeja González’s name related to a real-estate auction connected with attachment proceedings for the recovery of social security debts.
Mr González requested, first, that La Vanguardia be required either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data.
Second, he requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to La Vanguardia. Mr González stated in this context that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant.
The effect of the decision is that the Court was prepared to allow the particular information – the La Vanguardia report – to remain. The Court specifically did not require that material be removed even although the argument advanced in respect of the claim against Google was essentially the same – the attachment proceedings had been fully resolved for a number of years and that reference to them was now entirely irrelevant. What the Court did was to make it very difficult if not almost impossible for a person to locate the information with ease.
The Court’s exploration of the “right to be forgotten” was collateral to its main analysis about privacy, yet the development of the “right to be forgotten” section was as an aspect of privacy – a form of gloss on fundamental privacy principles. The issue was framed in this way. Should the various statutory and directive provisions be interpreted as enabling Mr Gonzales to require Google to remove, from the list of results displayed following a search made for his name, links to web pages published lawfully by third parties and containing true information relating to him, on the ground that that information may be prejudicial to him or that he wishes it to be ‘forgotten’ after a certain time? It was argued that the “right to be forgotten” was an element of Mr Gonzales’ privacy rights which overrode the legitimate interests of the operator of the search engine and the general interest in freedom of information.
The Court observed that even initially lawful processing of accurate information may, in the course of time, become incompatible with the privacy directive where that information is no longer necessary in the light of the purposes for which it was originally collected or processed. That is so in particular where the purposes appear to be inadequate, irrelevant or no longer as relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.
What the Court is saying is that notwithstanding that information may be accurate or true, it may no longer be sufficiently relevant and as a result be transformed into information which is incompatible with European privacy principles. The original reasons for the collection of the data may, at a later date, no longer pertain. It follows from this that individual privacy requirements may override any public interest that may have been relevant at the time that the information was collected.
In considering requests to remove links it was important to consider whether a data subject like Mr Gonzales had a right that the information relating to him personally should, at a later point in time, no longer be linked to his name by a list of results displayed following a search based on his name. In this connection, the issue of whether or not the information may be prejudicial to the “data subject” need not be considered. The information may be quite neutral in terms of effect. The criterion appears to be one of relevance at a later date.
Furthermore the privacy rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.
One has to wonder about the use of language in this part of the decision. Certainly, the decision is couched in a very formalised and somewhat convoluted style that one would associate with a bureaucrat rather than a judge articulating reasons for a decision. But what does the Court mean when it says “as a rule”? Does it have the vernacular meaning of “usually” or does it mean what it says – that the rule is that individual privacy rights override economic interests of the search engine operator and of the general public in being able to locate information. If the latter interpretation is correct that is a very wide ranging rule indeed.
However, the Court continued, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.
Thus if a person has a public profile, for example in the field of politics, business or entertainment, there may be a higher public interest in having access to information.
Finally the Court looked at the particular circumstances of Mr Gonzales. The information reflected upon Mr Gonzales private life. Its initial publication was some 16 years ago. Presumably the fact of attachment proceedings and a real estate auction for the recovery of social security debts was no longer relevant within the context of Mr Gonzales’ life at the time of the complaint. Thus the Court held that Mr Gonzales had established a right that that information should no longer be linked to his name by means of such a list.
“Accordingly, since in the case in point there do not appear to be particular reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information, a matter which is, however, for the referring court to establish, the Gonzales may, require those links to be removed from the list of results.”
There is an interesting comment in this final passage. The ECJ decision is on matters of principle. It defines tests which the referring Court should apply. Thus the referring Court still has to consider on the facts whether there are particular reasons that may substantiate a preponderant public interest in the information, although the ECJ stated that it did not consider such facts to be present.
There are a number of issues that arise from this decision. The reference to the “right to be forgotten” is made at an early stage in the discussion but the use of the phrase is not continued. It is developed as an aspect of privacy within the context of the continued use of data acquired for a relevant purpose at one point in time, but the relevance of which may not be so crucial at a later point in time. One of the fundamental themes underlying most privacy laws is that of collection and retention of data for a particular purpose. The ECJ has introduced an element of temporal relevance into that theme.
A second issue restates what I said before. The information about the attachment proceedings and real estate sale which Mr Gonzales faced in 1998 was still “at large” on the Internet. In the interests of a consistent approach, an order should have been made taking that information down. It was that information that was Mr Gonzales’ concern. Google was a data processor that made it easy to access that information. So the reference may not appear in a Google search, but the underlying and now “irrelevant” information still remains.
A third issue relates to access to historical information and to primary data. Historians value primary data. Letters, manuscripts, records, reports from times gone by allow us to reconstruct the social setting within which people carried out their daily lives and against which the great events of the powerful and the policy makers took place. One only has to attempt to a research project covering a period say four hundred years ago to understand the huge problems that may be encountered as a result of gaps in information retained largely if not exclusively in manuscript form, most of which is unindexed. A search engine such as Google aids in the retrieval of relevant information. And it is a fact that social historians relay on the “stories” of individuals to illustrate a point or justify an hypothesis. The removal of references to these stories, or the primary data itself will be a sad loss to historians and social science researchers. What is concerning is that it is the “data subject” that is going to determine which the historical archive will contain – at least from an indexing perspective.
A fourth issue presents something of a conundrum. Imagine that A had information published about him 20 years ago regarding certain business activities that may have been controversial. Assume that 20 years later A has put all that behind him and is a respected member of the community and his activities in the past bear no relevance to his present circumstances. Conceivably, following the approach of the ECJ, he might require Google to remove search results to those events from queries on his name. Now assume a year or so later that A once again gets involved in a controversial business activity. Searches on his name would reveal the current controversy, but not the earlier one. His earlier activities would remain under a shroud – at least as far as Google searches are concerned. Yet it could be validly argued that his earlier activities are very relevant in light of his subsequent actions. How do we get that information restored to the Google search results? Does a news media organisation which has its own information resources and thus may have some “institutional memory” of the earlier event go to Google and request restoration of the earlier results?
The example I have given demonstrates how relevance may be a dynamic beast and may be a rather uncertain basis for something as elevated as a right and certainly as a basis for allowing a removal of results from a search engine as a collateral element of a privacy right.
Another interesting conundrum is presented for Mr Gonzales himself. By instituting proceedings he has highlighted the very problem that he wished to have removed from the search results. To make it worse for Mr Gonzales and his desire for the information of his 1998 activities to remain private, the decision of the ECJ has been the subject of wide ranging international comment on the decision. The ECJ makes reference to his earlier difficulties, and given that the timing of those difficulties is a major consideration in the Court’s assessment of relevance, perhaps those activities have taken on a new and striking relevance in the context of the ECJ’s decision. If Mr Gonzales wanted his name and affairs to remain difficult to find his efforts to do so have had the opposite effect, and perhaps his business problems in 1998 have achieved a new and striking relevance in the context of the ECJ’s decision which would eliminate any privacy interest he might have had but for the case.
But there are other aspects of the decision that are more fundamental for the communication of information and the rights to receive and impart information which are aspects of freedom of expression. What the decision does is that it restores the pre-digital concepts of partial and practical obscurity. The right to be forgotten will only be countered with the ability to be remembered, and no less a person than Sir Edward Coke in 1600 described memory as “slippery”. One’s recollection of a person or an event may modify over a period of time. The particular details of an event congeal into a generalised recollection. Often the absence of detail will result in a misinterpretation of the event.
Perhaps the most gloomy observation about the decision is its potential to emasculate the promise of the Internet and one of its greatest strengths – searchability of information – based upon privacy premises that were developed in the pre-Internet age, and where privacy concerns involved the spectre of totalitarian state mass data collection on every citizen. In many respects the Internet presents a different scenario involving the gathering and availability of data frequently provided by the “data subject” and the properties and the qualities of digital technologies have remoulded our approaches to information and our expectations of it. The values underpinning pre-digital privacy expectations have undergone something of a shift in the “Information Age” although there are occasional outraged outbursts at incidence of state sponsored mass data gathering exploits. One wonders whether the ECJ is tenaciously hanging on to pre-digital paradigm data principles, taking us back to a pre-digital model or practical and partial obscurity in the hope that it will prevail for the future. Or perhaps in the new Information Age we need to think again about the nature of privacy in light of the underlying qualities and properties of the Digital Paradigm.
 The term “practical obscurity” was used in the case of US Department of Justice v Reporters Committee for Freedom of the Press. 489 US 749 (1989)
 Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, (2004)79 WASH. L. REV. 307, 315