What are the key challenges to governance of Internet commerce by law? What should the key objectives of a conflict of laws system for governing internet commerce be? How successful have U.S. and European approaches so far been in achieving such objectives?

by dxb625 (student)

The key challenges to governance of Internet commerce by law is due to the globalization that the Internet has brought about, the egalitarian culture of the Interne and its decontextuallizing effects, and finally the speed of its evolution.[1]

The Internet has been an essential tool in the globalization of the world as it has brought down the barriers between nations leading to an increase of global mobility for information and interaction causing the Internet to be one big “cybernation”. This poses a difficulty for law regulation, as there are different rules in each nation, as well as cultural norms that effect local laws. It would pose as a challenge to merge all those global ideologies under one umbrella for a uniform law system. Another related issue is the matter of anonymity on the Internet. Users are able to download and post things under pseudonyms or disguise their IP addresses making it difficult to be tracked down, and hence even more difficult to be held accountable for their actions.[2]

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The egalitarian culture of the Internet poses a challenge to legal regulation because the Internet is a communal space; it is not owned by any one person and all users are equal. It is difficult to gage the users intentions and their ethical backgrounds, since all users are equal, there is no control over any particular persons or what they could post online. Also, the ability to hide behind a screen has decontextualized interactions with one another and can lead to the dissolution of communities; this threatens laws as laws are derived from culture.[3]

The Internet is developing ...

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The Internet is developing at warp speed, and it has been growing in unexpected ways. This rapid growth makes it difficult for laws to keep up with the changes. It takes years to develop laws and even longer for them to be read and approved; by the time laws have been passed they may possibly be obsolete. Without any expectations of how the Internet may change, there is no possible way for lawmakers to account for the future.[4]

Although creating a conflict of laws system for governing Internet commerce would have to overcome a number of challenges, the drafting of these laws must aim to break down the grand theme of the Internet into more manageable parts. The new laws should be flexible to keep up with the ever-changing online world. “Basically, the law has three options: it can supervise substance; it can regulate organization and procedure; and it can modify the framework conditions for private ordering.”[5] The key objectives should be to create a communal set of laws applicable to the use of the Internet, make it so the laws are malleable to be able to quickly adapt to the changes arising from globalization and the egalitarian culture of the Internet, and create realistic procedures of enforcement that can be upheld equally in all nations.

Europe has no distinct law to regulate Internet commerce yet employs the Brussels I Regulation in online matters using jurisdiction as the main manner of designation of law. Where jurisdiction is not determined in an e-contract, people domiciled in a member state shall be sued in the courts of that state regardless of nationality in general matters. In cases of special jurisdiction, the case can be tried in the place of performance of the obligation. This model has not been wildly successful as in many cases the place of performance is not physical and the exchange or purchase may be in relation to intangible digitized products making it difficult to determine the right jurisdiction for the case.[6]

The US approach to Internet law has been more successful than that of Europe, and thus far it is the most developed. The two forms of jurisdiction in the US are general jurisdiction, which is “jurisdiction over the defendant for any cause of action, whether or not related to the defendant’s contacts with the forum state [while] special jurisdiction [is when] the underlying claims arise out of, or are directly related to a defendant’s contacts with the forum state.”[7] They employ minimum jurisdiction on a sliding scale dubbed the Zippo effect to determine the interactivity of the user with the site to determine his or her personal jurisdiction.[8] They also have an effects test which exercises jurisdiction over defendants who harm forum residents intentionally.[9]

Both the US and European approaches have a long way to go in achieving a comprehensive conflict of laws systems to regulate Internet use and need to examine the role of jurisdiction within that spectrum.

Bibliography

C. Engel “The role of law in the governance of the internet” (2008) 20 (1) International Review of Law, Computers & Technology 201.

F.F. Wang “Obstacles and Solutions to Internet Jurisdiction. A Comparative Analysis of the EU and US laws” (2008) 3 Journal of International Commercial Law and Technology 233.

[1] Cristoph Engel “The role of law in the governance of the internet” (2008) 20 (1) International Review of Law, Computers & Technology 204.

[2] Ibid.

[3] Ibid 206.

[4] Ibid 205.

[5] Ibid 209.

[6] Faye Fangfei Wang “Obstacles and Solutions to Internet Jurisdiction. A Comparative Analysis of the EU and US laws” (2008) 3 Journal of International Commercial Law and Technology 235.

[7] Ibid 238.

[8] Ibid 239.

[9] Ibid 239.