JILT 1997 (2) - Megan Macgregor
Nabarro Nathanson: The Laws of the Internet
Butterworths 1997, £85.00 xl + 388 pp
ISBN 0 406 00249 5
|2.6||Taxation, Securities & Financial Services, Competition & Banking
This is a Book Review published on 30 June 1997.
Citation: Macgregor M, 'Clive Gringas' Nabarro Nathanson: The Laws of the Internet', Book Review, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/bookrev/97_2macg/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/macgregor/>
It is presently estimated that there are over 40 million Internet users who daily log on to the electronic community to socialise, converse and increasingly to do business with each other. The online community increasingly a truly international market place. Business people appear to be embracing the commercial opportunities offered by the Internet with a vigour which anticipates a radical departure from traditional approaches to trading. However, while supporting interaction between social groups and businesses across countries and continents, the Internet does not presage any immediate change in human nature. As in the real world disputes arise; contracts are breached, theft committed and damage is inflicted on others either accidentally or deliberately. The scope for such disputes will become wider with the continued introduction of more new users to the Internet. In the light of such potential for litigation, commercial lawyers will require comprehensive and accessible guides to the legal issues raised by the Internet. This is the second volume to address this need. The market competitor is Internet Law and Regulation edited by Graham J.H. Smith, (reviewed at http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_3/lockett/).
Clive Gringas writes from a unique position in that he is both a qualified lawyer and a computer programmer and his technical experience is apparent throughout his writing. This book is written in a clear and concise style. The format of the book would be attractive to students interested in this evolving area of law, but the price of £85.00 is prohibitive. At this price the publishers are clearly targetting the legal practitioner market but the book could provide useful additional reading for students of Information Technology Law and would certainly be a worthy addition to any law library. Although in the same price bracket as its competitor volume, this book offers an innovative feature in its provision of over one hundred and fifty factual case study scenarios to demonstrate the main legal issues discussed. Since there is still a dearth of case law both in the UK and abroad the case studies are a welcome feature. The book contains ten chapters including an eleven page introductory chapter which gives a short historical guide to the Internet together with definitions of certain Internet features such as e-mail, bulletin boards, forums, file transfer protocol, World Wide Web and so on.
his chapter deals with the application of traditional contract law to Internet commerce, examining concepts such as the rules of offer and acceptance, the battle of the forms, consideration and intention to create legal relations. There is a detailed section on payment by means of credit card and digital cash and an extensive section on jurisdictional problems. In relation to jurisdiction, particularly in consumer contracts, the pivotal question which lawyers must ponder is which legal system applies to the Internet. Courts cannot at present recognize a special Internet jurisdiction and the jurisdiction of the UK courts will therefore require to be applied to people and businesses found to be contracting in and from the United Kingdom. The EC Directive on Distance Consumer Contracts 97/7/EC will be of direct benefit to European consumers who purchase goods and services from Internet vendors outwith the European Community.
Negligence, negligent misstatement, exclusion clauses and jurisdiction are all considered in relation to virus infection and data damage via the Internet and there is also a detailed section on the Defamation Act 1996. It is in relation to the dissemination of defamatory material across the Internet that the author issues a particular warning - ' the Internet affords the man on the street with a unique opportunity to have his thoughts, often off the cuff, published instantaneously throughout the world'. The implications of the Defamation Act 1996 for Internet Service Providers are potentially ominous in that IS Providers may well be required to adopt an increasingly editorial role in an attempt to avoid liability for publication of defamatory statements and the author provides good practical advice for both lawyers and concerned information technology professionals.
2.3 Intellectual Property
The significance of this area of law in relation to the Internet has been recognised by the author in this extensive chapter. Alleged infringement of intellectual property rights over the Internet has already produced a fair number of disputes. The Scotsman recently reported (Wednesday 18 June 1997 'Snap, Crackle and Pop') that the group Oasis, through their management company, sent a strongly worded e-mail circular to unoffical Oasis websites requesting removal of all unauthorised material including sound files under threat of legal action. As Marybeth Peters states 'The Internet is the world's biggest copying machinge' (page 128 ) and it is clear that the music industry is already concerned about the effect of Internet technology upon the potential sales of CD ROMs. Many billions of pounds are being invested in the future development of the Internet as a business environment which will inevitably lead to recourse to the courts in the physical world - companies investing in development will have a vested interest in protecting their investment and will be prepared to use civil remedies to do so. The debate over rights in Internet domain names has been fuelled by the recent decision in Pitman Training Limited v Nominet UK and Another (reviewed at http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/waelde/) and this will certainly continue with the creation of new identification suffixes.
Readers unfamiliar with intellectual property law will not find this chapter particularly accessible but for those who are acquainted with the basic principles of copyright law, trade marks and passing off the analysis of relevant case law is in depth and will therefore be most useful for lawyers already advising clients in these areas.
The offences considered in this chapter include unauthorised access to property, damage to property, theft and distribution of obscene material. The concerns about transmission of pornographic material over the Internet have been raised vociferously by the popular press but it is arguable that the consequences of computer misuse and computer hacking are a more pressing concern for businesses. The section dealing with offences relating to obscene and indecent material is very short, only three pages in length in comparison to the lengthy treatment of computer misuse. The apparent imbalance of the discussion would seem to reflect the importance of the respective issues to the businessman. The provisions of the Computer Misuse Act 1990 are detailed together with the Police and Criminal Evidence Act 1984 and consideration is also given to jurisdiction and extradition.
2.5 Data Protection
In the light of the new Data Protection Directive 95/46/EC data protection problems such as the security of personal data and fair obtaining are capable of being controlled. The main principles of data protection law are considered carefully together with procedures for registration, regulation of data-warehousing and remote manipulation and the territorial reach of the Data Protection Act 1984. Although the Internet does not pose any new theoretical difficulties for Data Protection it is clear the practical difficulties will be monumental - the Data Protection Registrar will have to implement procedures to track Internet Data Users, Data Subjects will have to locate where their personal data is being held and Data Users themselves will often be uncertain whether the data held is subject to the jurisdiction of the Data Protection Registrar.
2.6 Taxation, Securities & Financial Services, Competition & Banking
The final four chapters of the book are contributed by Conrad McDonnell, Barrister; Christopher Luck, Peter Willis and Susan Knufer all of Nabarro Nathanson. These chapters concentrate on more commercial areas less frequently visited by other information law commentators - namely Taxation, Securities and Financial Services, Competition Law and Banking. The taxation issues raised by Internet commerce are tax treatment of digital cash, issues of international tazxtion and tax planning and application of VAT to goods/services supplied over the Internet. Likewise the provision of financial services via the Internet will have to be carefully regulated to ensure that investors are protected.
The book has met a need for solicitors with an interest in developing their knowledge of Internet law. This would be a difficult book to use without a background knowledge of the relevant legal or technological concepts, given that the uninitiated reader may be tempted to assume that an answer to a problem may be found under a specific heading in a single chapter. Although the writer provides an introduction to Internet technology and a glossary of commonly used terms this book is not in any sense an introductory guide to the Internet for lawyers. Correspondingly it is not an easy-to-read guide to the law for information technology professionals and the writer in fact recognises this by referring the reader at certain points in the text to specialist legal volumes.
In the Introduction, the writer states that his aim was to create a book which represents the laws of the Internet as an evolving phenomenon. The law has always followed a slow trail in the wake of technology but as Sir Robin Jacob states in the Preface 'As always what the law will do is to develop appropriate rules by analogy'. The Laws of the Internet is a good starting point for interested professionals to become involved in this developmental process.