The law of the horse | Non-Commercial Use

One of my favourite US judges is Frank Easterbrook ? which is no surprise, given that he?s a Posner padawan. One of his more notable contributions is his famous speech on the ?law of the horse?; the idea that the internet does not need specialised law or specialised lawyers, and that general-purpose law should apply ? claiming that the internet should have its own legal concepts was considered analogous to ?law for horses?.

Easterbrook?s rationale was essentially that the internet, or indeed any new field, is not going to be correctly understood by lawyers, at least initially. Turning it into a dedicated field, in terms of both study and practical enforcement, would lead to the people tasked with making decisions and the people tasked with keeping them honest getting the wrong end of the stick, with injustice being the net outcome. Instead, people should study and practise general-purpose law, and applythat to the internet.

This argument was brought up and then sadfaced by Ian Cram, a Professor of Comparative Constitutional Law and Guardian writer commenting on the judgment in the ?twitter joke trial? (spoiler alert: they found him not guilty). Cram wrote that:

the route by which the court reached its decision is worthy of closer attention to see what it tells us about the courts? attitudes to internet speech. Noting that the 2003 Act predated the launch of Twitter and that the statutory reference to ?menacing? was itself based on a previous Act of 1935 which had first employed the term, the court took the view that English law had long been tolerant of satirical, iconoclastic, rude and even distasteful opinion about serious and trivial matters before the 2003 Act and would continue to be so in the era of social media.

On one view this stance may seem reassuring. Upon further reflection however, a more troubling analysis of the ruling is possible. Our high court is declaring alongside Easterbrook that there is no law of cyberspace; there is no law of the horse. Its disinclination to evaluate the appropriateness of legal concepts and criminal offences developed in the pre-Twitter era is disappointing, even if largely to be expected.

I disagree with this in several ways. First, I don?t agree that this is what the judgment indicates. Secondly, I don?t agree that what the judgment indicates is a bad thing. Third, I kinda agree with Easterbrook. Kinda.

What the judiciary was saying in this case was not ?there should be no dedicated field of cyberlaw?. What they were saying was ?We are not creating dedicated cyberlaw in this case?, and I think that was the right move. The case itself does not justify creating the field ? whether this man had posted what he wrote on Twitter, Facebook or in the Letters to the Editor page of the Times, the outcome should have been precisely the same. Cyberlaw is, by definition, the special treatment of things due to their presence on the internet, or the treatment of things that are unique to the internet. This is not a cyberlaw issue. This is a legal issue that happened to occur on the internet.

There are far more interesting cases out there that actually would make good cyberlaw, and answer new questions. Take the extradition of Richard O?Dwyer to the US; he?s accused of hosting a website (TVShack) that linked to pirated content. He hosted this in the UK, but pirated US content. That is an interesting case. If his actions were a crime under UK law, why not prosecute him here? If his actions were not a crime, how far does national law go in an age where things are essentially hosted in a societal, international gestalt? How do you calculate damages in copyright cases? What constitutes a ?mere conduit? under SI 2002/2013, and how does the US equivalent (S.230 of the CDA) apply if you?re prosecuting under US law? His domain names were seized, because most domains are US-hosted ? how do we reconcile an international attitude to servers and the content on them with an Americo-centric approach to the internet?s underlying infrastructure?

These are questions that need debate and answers (and probably have them already ? it?s not exactly a specialist area of mine). These are questions that would benefit from a long judgment that waxes lyrical on the role of law in society, and how society has altered due to the internet?s presence, and how law should adjust to compensate.

If we were dealing with that case, these would be questions that could be answered ? but we?re not, and even if we were, ?could be? is not the same as ?should be?. As said above, I think the courts were saying ?we?re not creating this field?, not ?this field shouldn?t be created? and they?re right to do so. We live in a constitutional democracy where Parliament is sovereign; for the courts to create an entirely new field of law or substantially pervert the meaning of existing legislation, which is what Cram is asking for, the fundamental principles the UK?s legal systems are based on would have to be entirely swept away. It?s sad that his study of comparative systems has led to him neglecting his own constitution so much.

Whether we need internet-specific law as Cram suggests, or for the internet to influence how we think about general-purpose law instead as Easterbrook would want, we definitely need change. The Computer Misuse Act, the Copyright, Designs and Patents Act, the Contempt of Court Act ? there are a myriad pieces of law that aren?t adapted to the internet age. But most of these are either legislative in nature or descended from legislation, and unless we want a nation in which the judiciary is the primary legal mover, we have to wait for Parliament to act.

Source: http://quominus.org/archives/917

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