216 Oxford English Dictionary, Available online at:
http://www.oxforddictionaries.com/definition/english/cyberspace [Accessed 22nd July 2017]. 217
ISO/IEC 27032 (2012), Information Technology -- Security techniques -- Guidelines for cybersecurity http://www.iso.org/iso/iso_catalogue/catalogue_tc/catalogue_detail.htm?csnumber=44375 [Accessed 22nd January 2018].
218
Rajnovic, D. (2012), ‘Cyberspace – What is it?’ Cisco blog, security: What is it? Found online at: https://blogs.cisco.com/security/cyberspace-what-is-it/[Accessed 7th March 2018].
219
International Strategy for Cyberspace 2011:
https://www.whitehouse.gov/sites/default/files/rss_viewer/international_strategy_for_cyberspace.pdf [Assessed 8th December 2017].
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From the above elements, this thesis finds most relevant ingredients:
1. The claimant and the defendant - tangible elements 2. The place of upload and download - intangible elements 3. The ISPs and the content providers - network-related elements
The elements identified by this thesis are the required components for both the internet and cyberspace or social media, as listed in Table-2.
Table-2: Important Elements
# INTERNET CYBERSPACE FOR THIS THESIS
1
Tangible Humans and computers The claimant and the defendant
2
Intangibles Electromagnetic pulses and binary data
The place of upload and download 3 Network Related Telecommunication and physical infrastructures
The ISPs and the content providers
So the internet and cyberspace can be interchangeable terms. However, technological differences exist, which are critical to understand because cyber-law literature argues that the outcome of many cyberspace issues depends on the court’s perspective of the internet and how it operates220 (see Table-3).
220
Frischmann, B. M., (2003), ‘The prospect of reconciling internet and cyberspace’, Loyola University of Chicago Law Journal, Vol 35, Issue 1, pp 205.
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Table-3221: Cyberspace Perspective View
Perspective Cyberspace Users Judges Perception
Traditional view: It is based on external perspective of Internet
The social media user who is logged in and accepts cyberspace as a virtual reality
Online user, exists in the
physical world and
communicates with others using the local network
Internet view:
It is based on internal perspective
A computer with internet connection provides a link to virtual world which is roughly analogous to the physical world of real space.
The user uses a
keyboard/mouse/finger to go shopping.
The internet is a network of computers located around the world and connected by wires
and cables. The hardware sends, stores, and receives
communications; using protocols. Keyboards/mouse input sources to the network and monitors are a destination
for the output.
This is what this thesis is trying to achieve by applying traditional laws to two different realities, two existing worlds. One is the actual world and the other is the virtual world. The virtual reality is only accessible via human interactions. Therefore, if the laws are applied to ‘human behaviour’ rather than the technology, there will be no need for a new set of law.
2.2.3.: The internet or cyberspace:
The internet is a physical infrastructure because computers, network cables, routers, switches all make up the internet. Its elements can be seen, touched, unplugged or
221
This table is inspired from the authors who observed that the two dominant perspectives of the Internet are the internal perspective and the external perspective: Kerr, S., (2003), ‘The Problem of Perspective in Internet Law’, GEO. Law Journal, Vol 91, pp 357 and Frischmann, B. M., (2003), ‘The prospect of reconciling internet and cyberspace’, Loyola University of Chicago Law Journal, Vol 35, Issue 1, pp 205.
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moved222. Whereas cyberspace is not real. It is a virtual concept which is created by the existence of the internet223. It is the place where social media users can communicate with each other.
2.3.: Cyberspace: An internet metaphor:
Cyberspace, also known as ‘the internet’, has become a conventional means to describe anything associated with internet culture224. However, cyberspace should not be confused with the internet because it refers to objects (modems, routers, cables and computers) which exist within the communication network225. For instance, a website might be metaphorically said to exist in cyberspace226, but the activities performed on the internet are not happening at the physical location of the user or a server but in cyberspace, which is a conceptual place without any physical dimensions227. It is debatable, whether all internet communications traverse jurisdictional borders; however, this thesis presumes that a significant proportion of all internet communications are characteristically trans-border228.
For this study, to adjust the legal complexities surrounding jurisdiction, it is pivotal to differentiate between the internet and cyberspace because communication or the entities of a networking system, in fact, exist in cyberspace (see Table-4). Besides, courts have seen cyberspace as a ‘metaphor’ to eliminate the perception of treating the internet 'just
222
It is easy to put constraint on infrastructure because users may avoid legal constraints but they cannot avoid technological restraints; Lessig, L., (1999), ‘Code and Other Laws of Cyberspace’, (Routedge Publishers, London), pp 233-239.
223
Kleve, P., & Mulder, R., (2008), ‘Code is Murphy's Law’, International Review of Law, Computers and Technology, Vol 19, Issue 3, pp 95-107.
224
Damayanti, M., & Yuwono, E., (2013), ‘Avatar, identitas dalam cyberspace’, Nirmana, Vol 15, issue 1, pp 13-18; Stockl, A., (2003), ‘The Internet, Cyberspace, and Anthropology’, Cambridge Anthropology, Vol 23, Issue 3, pp 67-78; Lessig, L., (1999), ‘Code and other Laws of Cyberspace’, (Basic Books Publication, New-York), pp 108.
225 The internet is a physical reality but cyberspace is an experience of being online, using the physical Internet. It is the sense of space generated within the mind while interacting through computer technology.
226 Graham, M., (2013), Geography/Internet: Ethereal Alternate Dimensions of Cyberspace or Grounded Augmented Realities, The Geographical Journal, Vol 179, No 2, pp 177-188.
227
Strate, L., (1999), ‘The Varieties of Cyberspace: Problems in Definition and Delimitation’, Western Journal of Communication, Vol 63, Issue 3, pp 385; Edwards, L., & Waelde, C., (1997), ‘Law & the Internet: Regulating Cyberspace ’, (Hart Publication, Oxford), pp 18.
228
Meltzer, J. P., (2015), ‘The Internet, Cross‐Border Data Flows and International Trade’, Asia & the Pacific Policy Studies, Vol 2, Issue 1, pp 90-102.
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like' the physical world229. It is one of the reasons the traditional legal system is unable to adopt the social changes brought about by the internet230.
Table 4231: Cyberspace versus Internet
# CYBERSPACE INTERNET
DEFINITION The local/domestic/notional environment which allows users to communicate using a computer network
A global computer network providing a variety of information and
communication facilities, consisting of interconnected networks using standardised communication protocols DESCRIPTION It is the symbolic space or
plane that is created by the Internet
It is a global network that is created out of smaller
networks made from
computers. It allows the
transfer of data and
information
1st USED 1960 1969
DATA All data is transferred within
the cyberspace
Allows the transfer of data
Conversely, if the internet is different from the real world, then physical world policies should be different for the internet232. Whereas, this thesis is analysing whether physical
229 Alfred, C., (2000), ‘Western Frontier or Feudal Society?: Metaphors and Perceptions of Cyberspace’, Berkeley Technology Law review, Vol 17, pp 1207-1231; cyberspace as a metaphor is descriptively accurate but the normative question of whether to regulate cyberspace as a place is a different issue. However, courts have been unable to settle on the appropriate analogy and cause of action reflecting one or more specific policies.
230
Hua, W., (2017), ‘Cybermobs, civil conspiracy, and tort liability’, Fordham Urban Law Journal, Vol 44, Issue 4, pp 1217.
231
Lingel, J., (2019), ‘The gentrification of the internet’; online Url www.culturedigitally.org [Assessed 14th Jun 2019].
232 The perception of cyberspace as separate from real space also tends to encourage a belief that cyberspace is an actual jurisdiction separate from the polities that exist in real space and, therefore, should be governed in ways that traditional political processes cannot be trusted to handle; Jonathan J., (2000), ‘Cyberspace and the "Devil's Hatband’, Seatile U. L. Rev., Vol 24, pp 577- 592.
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world regulations can also be implemented to the internet. Thereby, it is imperative to understand the concept of ‘virtual-physical presence’.
2.3.: Social presence via cyberspace:
The concept of jurisdiction is internally based, which in turn, shapes the social construction of a country. The social concept of countries becomes irrelevant in cyberspace because it is an open space233. Consequently, once the social concept of the country is changed in cyberspace, the concept of jurisdiction must also be changed234 (see-2.1). Even so, in England, traditional laws still apply to social media disputes, which makes judges analyse two distinct sets of facts for online communicational conflicts (see Table-3):
1. Based on the external perspective 2. Based on the internal perspective235
This thesis will not further evaluate this difference because traditional laws are based on physical presence. As detailed above, a user (defendant) cannot be physically present in cyberspace; however, his actions can affect someone (victim) in the real world, by (metaphorically) being in cyberspace (see-2.2.). Besides, the defendant’s presence on the internet cannot be separated from their life in the physical world because there is interconnectedness between virtual and real space236. For instance, Tom Cruise reputation can still be damaged physically, even when the publisher chooses to limit his course of conduct solely to cyberspace.
2.3.1.: Physical presence:
A statement against the royal family may be acceptable in Pakistan but it is illegal in England237. Similarly, religious remarks are ‘freedom of speech’ in England but they
233
Goldsmith, J., L., (1998), ‘The Internet and the Abiding Significance of Territorial Sovereignty, Ind. J. Global Legal Study, Vol 5, pp 475.
234
Berman, P. S., (2002), ‘The Globalization of Jurisdiction’, University of Pennsylvania Law Review, Vol 151, pp 311.
235 Kerr, O. S., (2003), ‘The Problem of Perspective in Internet Law’, GEO., Law Journal, Vol 91, pp 357. 236
Hua, W., (2017), ‘Cybermobs, civil conspiracy, and tort liability’, Fordham Urban Law Journal, Vol 44, Issue 4, pp 1217.
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may be blasphemous in Pakistan. Both states regulate the same act’s local effects differently but legitimately. It does not make any unilateral regulation illegitimate; however, this multi regulative scenario causes disharmony when the result becomes multi-jurisdictional (e.g. when a Pakistani makes remarks against the English royal family). In this scenario, English regulation requires extraterritorial effects, which depend on a physical presence (see-7.3).
2.3.1: Extraterritoriality:
The concept of extraterritoriality238 means that a nation uses the threat of force against local persons or property to punish, and thus regulate, extraterritorial acts that cause domestic harm. It does not (usually) mean that a nation enforces its law abroad239. The law of extraterritorial activity is efficacious only to the extent that the defendant has a local presence. It can also be useful if the agent of the act owns local property against which local laws can be enforced240. From the above example, physical presence (of Pakistani defendant) is compulsory to serve a writ in England (CPR r3.6). If court documents can be served on this Pakistani defendant in England, it establish English court’s jurisdiction. This service can be to property, business or personal address (see- 2.12). Similarly, the presence of a foreign defendant in English territory also denotes acceptance of the jurisdiction of English courts (see-4.5.2, 6.9).
2.3.1.1.: The concept of physical presence:
Physical presence241, as a basis of jurisdiction is a long-standing precedent of common law242. For the individuals ‘presence’ is defined in a literal sense. In the case of
238 Extraterritoriality is not merely a transition, but an original feature of the global legal order, arising out of modern imperialism and imperial rivalry and yet conducive to the forging of new instruments of international law and governance: Todd, D., (2018), ‘Beneath sovereignty: Extraterritoriality and imperial internationalism in nineteenth-century Egypt’, Law and History Review, Vol 36, Issue 1, pp 105- 137.
239
Szigeti, P. D., (2017), ‘The illusion of territorial jurisdiction’, Texas International Law Journal, Vol 52, Issue 3, pp 369-399; There is a general uncertainty in what counts as "territorial" and what counts as "extraterritorial" jurisdiction, and this is the result of the almost complete lack of geographical information in jurisdictional discourse. This phenomenon is demonstrated by the impossibility of the cartographic-mapping of jurisdiction. The lack of a geographical connection means that most jurisdictional conflicts are better described as conflicts between communities and their legal orders, without a territorial connection.
240
Goldsmith, J., L., (1998), ‘The Internet and the Abiding Significance of Territorial Sovereignty, Ind. J. Global Legal Study, Vol 5, pp 475.
241
A claimant who sights his/her defendant within the territory of the English court can serve the writ on the defendant and the court is automatically seized of the matter.
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Wildenstein243 case, both the claimant and the defendant were foreign nationals. The court exercised its jurisdiction because the writ was served on the defendant when he came to visit England. The defendant argued that it was an abuse of the court’s process because it was frivolous and vexatious (see-2.3.1.2). The judge decided that the claimant had properly served the writ and invoked the English court’s jurisdiction. Traditionally, a weak link with England may be enough for the courts to assume jurisdiction because serving the ‘summons’ to the defendant in England produces enough connection, albeit a tenuous one244.
The Sarlie245 case set this precedent for English courts to assume jurisdiction if there is only a limited connection with England, but the writ is served in England (see-6.6.2). However, where a defendant is enticed, fraudulently lured or kidnapped to the jurisdiction of the court so a writ can be served on him, the court may invalidate such service246. Executives of a foreign company who visit England do not bring the company within the jurisdiction of the court247. However, if the defendant is an organisation/corporation/industry, they are considered ‘present’ in England if trading, directly or indirectly, in England (see-6.8.1.1).
2.3.1.2.: The English ‘writ-rule’:
This rule may not be adaptable to social media technology and remoteness of the data (see-2.3.2). It has been criticised by legal writers, both within and outside the common law jurisdiction, long before the advent of the internet248:
1. Graveson249 noted that the service as a ground for jurisdiction is exorbitant;
243
Maharanee of Baroda v Wildenstein [1972] 2QB 283; it is a classic example to explain the English approach because this case involves a French resident who bought a painting from another French resident. However, the English court assumed jurisdiction because the writ/warrant/summon was served on English soil.
244 South India Shipping v Bank of Korea [1985] 1 Lloyds Rep 413; English court assumed jurisdiction over Korean company despite very little connection in England.
245
Colt Industries v Sarlie [1996] 1 ALL ER 673; a short visit to England was sufficient to serve the foreign defendant.
246 Watkins v North American Timber [1904] 20 T.L.R. 534; a service of writ by a fraudulent act will be void.
247
If the defendant, individual or corporate, is not present in England but has agreed that solicitors located in England can accept documents on the defendant’s behalf, then the service of writ to the solicitors will be sufficient to invoke the English court’s jurisdiction over the foreign defendant. 248
McCLean, D., &Nigm, R.A, (2012), ‘Morris: The Conflict of Laws’, (8th Ed, Sweet & Maxwell, London), pp 112-114.
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2. Minor250 stated that this rule is more akin to robbery than justice;
3. North and Fawcett 251 are of the view that this rule may lead to a situation where the English court exercise jurisdiction over a case, which may be foreign regarding subject matter and parties.
This thesis disputes this criticism because despite applying traditional jurisdictional laws to exercise jurisdiction over an overseas defendant, English law is not by-default applicable (see-4.3.3). The court will have to implement ‘choice of law principles’ to identify appropriate applicable law. It does not matter if an overseas defendant/claimant is before an English court because the judge may apply ‘foreign law’ if that is the proper law (see-6.4.2). Not only that, English court can exercise its discretion to stay/decline its jurisdiction if it forms the opinion that the action should have been brought elsewhere (see-4.5.4).
The analysis of the internet versus cyberspace indicates that the dimensions of jurisdiction may change253 because in the absence of online-physical presence, different rules are required for both physical and virtual defendants (see-2.3.2). Here is why the internet is a computer network whereas cyberspace is that ‘imaginary network’ visualised as a virtual space254. For instance: Consider a book as the internet. It provides information similar to the way in which the internet transfers data. A reader reads a story from the book and imagines the characters and dialogues played out in the story. This virtual reality is called cyberspace on the internet. That is how internet users imagine the information they read on the internet. These terms are interchangeable. Before anything, there is a difference between physical presence of human behaviour and the data used online. It depends on the storage of the data whether it is stored via Icloud or on a physical server?
249 Graveson, R.H., (1977), ‘Comparative Conflict of Laws, Selected Essays’, (Vol I, North Holland Publishing, Oxford), pp 9.
250
Minor, R., (1901), ‘Conflict of Laws’ (1st Ed, Boston), pp 283.
251 North, P., Fawcett, J., (1999), ‘Cheshire and North Private International Law’, (13th Ed, OUP, Oxford), pp 32.
253
A user may be present in the internet via computer or network cable whereas in cyberspace he cannot be physically present because it is a digital realm, so law cannot be applied in absence of presence.
254
Cyberspace is nothing more than a symbolic and figurative space that exists within the scope of internet; it may be considered a subdivision of the internet.
62 2.3.2.: Physical location of data:
The internet may be a network of networks, but cyberspace includes software, hardware, internet protocols, standards, biometrics and privately controlled governance structures255. The ‘design of software’, ‘infrastructure of hardware’ and other elements form cyberspace within which social media users communicate with each other. Therefore, every component of cyberspace architecture has the potential to be regulated by law256.
In the context of this chapter, cyberspace or the internet is a collection of inter- networked systems of computers, which spans the entire earth257. The focus will be on identifying where the internet is or, in fact, where the internet programs, data or files are saved (see-2.4). The location, the data is stored in, will determine the applicable law258. Before the internet era, information could only be stored in one physical place, but in cyberspace, the data is stored in an anonymous location (iCloud259).
Notwithstanding, the storage of information in the modern era does not affect the retrieval of data as long as it is consistent with Article 19260 (see-7.21). It allows freedom to receive and impart information and ideas through any media, regardless of frontiers. For instance, considering the stats in Picture-1, the following users use cyberspace for a variety of purposes. The head offices of most of these sites operate from the US but the relevant information is available to everyone regardless of geographical difference261.
255
Marton, E., (2017), ‘Violations of personality rights through the Internet: jurisdictional issues under European law (Nomos, e-library.com), Ch. 2, pp 55-70.
256
Callamard, A., (2017), ‘Are courts re-inventing internet regulation?’, International Review of Law, Computers & Technology, Vol 31, Issue 3, pp 323.
257
Graham, M., (2012), Geography/Internet: Ethereal Alternate Dimensions of Cyberspace or Grounded Augmented Realities, The Geographical Journal, Vol 179, No 2, pp177-188.
258
Bellovin, S. M., (2017), ‘Jurisdiction and the internet’, IEEE Security & Privacy, Vol 15, Issue3, pp 96. 259 Cloud based storage is a computing model where storing, processing and use of data takes place on remotely located computers accessible over the Internet and controlled by third party; Irion, K., (2015), ‘Your digital home is no longer your castle: how cloud computing transforms the (legal) relationship between individuals and their personal records’, International Journal of Law and Information Technology, Vol 23, Issue 4, pp 348–371.
260
Universal Declaration of Human Rights (1948); states that everyone has the right to freedom of expression and this includes the right to ‘impart information and ideas through any media’; Article 19(2) of the International Covenant on Civil and Political Rights protects freedom of opinion and expression.