Cyberlaw notes which give brief understanding of cyberlaw , cyberspace , jurisprudence

  

Date Posted: 11/14/2017 2:13:54 AM

Posted By: Lincy Kirui  Membership Level: Bronze  Total Points: 62

---

NTRODUCTION
Cyber" is a prefix used to describe a person, thing, or idea as part of the computer and information age. Taken from kybernetes, Greek for "steersman" or "governor," it was first used in cybernetics, a word coined by Norbert Wiener and his colleagues. Common usages include cyberculture, cyberpunk, and cyberspace.
CYBER JURISPRUDENCE
Law and Jurisprudence:
As we are talking about Cyber jurisprudence it is pertinent to note the inter-relation ship between law and jurisprudence
The term ‘law’ may be interpreted in many ways like, one may feel law as command of sovereign (Austin’s School of law), other may feel that as, it emerged from the customs, it should be flexible for the common usage The other perception is law is rightness (Ethics) of will, and this can never be enforced by external legislation. But must be the free choice of the individual.
The others say that law is the science of the totality of the rules for which an external legislation is possible. By reading this paragraph one should not jump to hasty conclusions like, law is vague and unscientific etc but instead, one should keep in mind that law is a ‘perceptual science’.
To put it in other way a notion, which has majority approval, would emerge as a ‘principle’ and set of such principles would thus form Jurisprudence. Therefore, jurisprudence is nothing but set of majority accepted principles of a given society. This analogy is proved in the case how jus civil and the jus gentium were merged into the broad stream of Roman law, destined to fertilize all the legal systems of the world
Law cannot function in vacuum it seeks a definite place and people voluntarily abiding to it
The technological inventions made so far have created and developed "products" whereas information technology has facilitated "processes" like process of buying, communicating, sharing

ideas so an and so forth. This technology enables people to meet, talk and live in cyberspace in the ways not possible in the real space. The cyberspace is more intimate, accurate and unceremonious. The internet as a medium of communication has grown exponentially with the high participation of individuals facilitating each other with mailing, shopping, sharing online news etc. The ability of online users to interact in sophisticated ways form "virtual communities".
The term ‘cyber society’ or ‘cyber community’ is used very insecurely by lawyers and research scholars to refer internet users. But to refer a group of individuals as society or community apart from many other commonalities, the interest (proprietary and personal) of the subjects over the field of operation should also be similar though not identical. Perhaps the reason for the tossing of the coin "cyber society" "cyber community" by the social thinkers is its accessibility to every individual. And this very accessibility paved the way for sharing of ideas, moods and for building of common interests and consensus. Now law has to be built on the premise of this consensus itself.
Law identifies the common principles on which the cyber society is working, what norms are governing them, and what customary practices are followed in cyber space, etc .
Therefore,out of such commonalities like customary practices, cultures, usages and the basic norms, law has to be formulated. In the words of Savigny " Law grows with the growth and strengthens with the strength of the people and its standard of excellence will generally be found at any given period to be in complete harmony with the prevailing ideas of the best class of citizens".
If this ‘prudence’, is not shown by the subjects of law (netizens/citizens) then such society will be put to nullity. This nurturing of society, whether virtual or physical, is the job of jurisprudence. Therefore every society has to know the philosophy of law governing it and abide to that. As far as physical society is concerned the jurists like Sir John Austin, Salmond, Sir Frederick Pollock etc have evolved many schools of thoughts and gave possible propositions to the jurisprudence, but for cyber society, jurisprudence is not yet formulated and is still in the realms of legal academia. But contrary to this the ‘cyber society’ is more of a reality today than it was ever before.
On the one hand the Internet has a stake in the economies of the world while on the other it has gripped popular imagination by providing easy communication, entertainment, leisure and relaxation. The Internet is continually changing the dynamics of the world.
The law needs to be alive to this change in society. Roscoe Pound once said, "Legal order must be flexible as well as stable. Law must be overhauled continuously and refitted continually to the change in social life which it is to govern". With that goal in mind, the Indian Parliament went about legislating the first cyber law and christened it the Information and Technology Act, 2000.

The Need of Law in Cyber Society
The purpose of law is in the conflict itself. Where there is no dispute or confrontation of interests there the need for law is nil. And "Conflicts arise when there is some thing to share" more so when the shared object is scarce. This is as much true of the family or neighborhood as the "Cyber Space". When conflicts arise in Cyber Space, we need "Cyber Laws" to restore order to the society. When we are discussing the emerging field of "Cyber Laws" we need therefore try to understand how and why conflicts arise in the "Cyber World". If the conflicts in cyberspace are not making any substantial difference with the conflicts of physical space then the already existing laws, which are governing the physical space, are highly sufficient to regulate cyber space as well, we need not to go for codification of a separate legislation and for evolving new principles, but the disputes in physical space and the disputes in virtual space are entirely different in nature. Not to go in detail the matters of Jurisdiction, Proprietorship, liabilities of intermittent parties like ISPs (Internet Service Providers), the doctrine of choice of law, principles of defamation, are all put to scrutiny. To put it more understandably the reason for a separate law is "Law" being a "Code of Conduct declared as the most suitable for a given society", law need to make itself suitable as society changes.

This analogy can be extended to the "Cyber Society" as well. The reason for realizing the need for cyber laws even before cyberspace takes its shape, perhaps, is because of claiming non-cyber rights as cyber rights. As long as the trademark owners were away from the Internet world, there were no domain name disputes. This chaotic period of time would churn fundamental principles of cyber law and lead to the evolution of cyber jurisprudence. We should see that there should not be conflict or overlapping between rights of cyber society and non-cyber society. For instance, the doctrine of adverse position has no role to play in cyber space. Because of this divergent issues involved unless we come up with sound principles of jurisprudence applicable in cyber space even law cannot control the cyber space entirety.

Cyber Etiquettes are not antiquities:
The role of ethics or etiquettes in cyber realm are very high more particularly when cyber space is unorganized, checks and balances over the cyber activities are not at standardized and where cyber crime investigating institutions are not established. The alternative to curb the immorality is, ‘regulating oneself’.
Unlike in physical space, the regulation of individual behavior in cyberspace is nearer to impossible unless, the governed is ethically sound.
A fundamental theme running through most cyberpunk literature is that (in the near future Earth) commodities are unimportant. Since anything can be manufactured, very cheaply, manufactured goods (and the commodities that are needed to create them) are no longer central to economic life. The only real commodity is information. With information so fundamental to the business world, the mechanics of business are vastly different from those we know at present. In our current product and service based business world, we are used to dealing with items that can be stamped, traced, taxed, counted and measured. When the primary commodity is information, these attributes no longer apply and the structure of the business world is different. Many people have already recognized this,

It is an admitted fact that one or the other devise, whether ethical (self) or institutional, is needed to regulate any activity carried on in cyber space, but interestingly, one important point is missing from our analysis that is what to regulate? Is it flow of information or is it the place where information is flowing? Or is it the subjects (individuals) who are accessing the information to be regulated? If it is the place, where information is flowing, to be regulated then invariably law has to attribute some significant legal status to the cyber space and accordingly it has to deliberate upon the character, nature, jurisdiction and functions of the cyber space.
If the subject matter of law are the individuals, as they be in physical space using physical devises itself, already existing laws are suffice to clampdown misuse of IT and to curb technological mal practices. We need not to search terminologies to name the crime committed as well no need of establishing new institutions like cyber police station, cyber cops etc. But the difficulty in this approach is, at times it becomes impossible to trace out individual behind a crime committed and it is impracticable to expect that every cyber offence originate from physical space.
If it is the ‘information’, which is subjected to the regulation by the law then the horizons of the IT law should be so expended that it deal with production, distribution, dissemination, processing of information as a whole as most of the Communication Acts does in the resent past, like German Information and Communication Services Act (1998) and British White Paper, Proposing the creation of a Cross-media regulatory authority, published in the year 2000 and similarly The Indian Communications Convergence Bill 2000 which does not attribute much difference between the e-mail viewed in television and laptop. This approach of law wither away the concept of cyber crime, cyber theft so on and so forth and perhaps may swab lot of confusion about Information space and help us in understanding the nature of cyber activities. But difficulty in equating laws of information technology with communication regulations primarily is the communications regulations deal information more or less as a ‘product’ where as the information technology is a process. Overlooking of this significant difference may pose serious problems.

Theories on Information Law approach:
An individual at the out set establishes copyrights over a subject matter and then media law governs the dissemination of the same thirdly information law deals with the production, processing and distribution of information as a whole not just publicly disseminating information. In spite of the criticisms like this model failed in mapping the legal treatment of information, it has not established a clear reason behind positioning copyright law at the center or it does not explained the relation between media and information law etc, this theory has established the genesis of information law approach.

Professor Dommering propounds the second school of thought; he opines that the study of information law is the study of the communication as a whole.
The Professor Dommering theory attracts the attention of legal scholars because his theory splits information technology in to communication processes whereby facilitating regulation of each segment of information communication. The beauty of this theory is, every law like copyrights, media and communication so on and so forth have their own respect fields of operation and no single law has occupied center position. Professor Dommering’s theory broadens the scope of Information technology laws. And clear demarcation of communication regulations can also be seen. If Indian technology law adopts this approach perhaps the Indian Communications Convergence Bill should be passed. Because this bill unifies all communication systems, and brings all of them under one regulatory body.

Property – cyber space:
‘Proprietary ship’ an age-old concept of mankind, has always been brought to discussion, whenever threat to its existence has come. All the time man tried his best to protect his proprietary ship over the things he has access.
This terms is used in dissimilar ways by many schools of thoughts,in its widest sense, includes all the legal rights of a person of whatever description.
- It includes proprietary rights of a person and not his personal rights
In other sense, the term property includes only those rights, which are both proprietary and real.
- It includes only corporal rights or rights of ownership in material things.
- It includes greatest rights of enjoyment (Austin)

Though, many jurists tried define property, but nevertheless each definition has its own contextual significance. When it is said that property includes all legal rights, they certainly mean it and that perhaps suits to the then prevailing legal and social conditions. But when the circumstances have changed they went in search more appropriate definition. As is rightly pointed out by Erle J.: " The notion that nothing is property which cannot be earmarked and recovered in detenu or trover, may be true in an early stage of society when property is in its simplest form and the remedies for the violation of it are also simple, but it is not true in a more civilized state when the relations of life and the interests arising therefrom are complicated"

It seems in the wake of Information Technology the proprietary rights of interent users are going to be a complex problem. Questions pertaining to tangibility, intangibility, movability and immovability of cyber property and can web page be sold, leased, transferred, bequeathed, is total alienation is possible or not? So on and so forth are going to occupy center points of ‘cyber prosperity jurisprudence’
But by using cyberspace as a metaphor we can resolve most of the problems of cyber proprietary ship. The metaphor universally accepted with regard to property is ‘property is bundle of rights’ and the central tenet of property jurisprudence is that, property is the legal right to exclude others. To put it more clearly, property rights in the internet are negative rights, they lay what is not jurisdiction rather what is jurisdiction. In other words as long as a computer does not violates the rights of others such computer is said to have been within its jurisdiction. This refers that wherever a computer interacts with other computer transgressing its property lines there and then such computer is said to have violated the legal rights of the others. Therefore it is the violation of legal rights of other that will mark boundaries for proper use.

---

Next: How to optimize internet content search
Previous: Grief: Surviving the loss of a loved one