Andrew D. Murray

The reclassification of extreme pornographic images

Legal controls over the importation and supply of pornographic imagery promulgated nearly half a century ago in the Obscene Publications Acts have proven to be inadequate to deal with the challenge of the internet age. With pornographic imagery more readily accessible in the UK than at any time in our history, legislators have been faced with the challenge of stemming the tide. One particular problem has been the ready accessibility of extreme images which mix sex and violence or which portray necrophilia or bestiality. This article examines the Governments attempt to control the availability of such material through s.63 of the Criminal Justice and Immigration Act 2008, which criminalises possession of such images. It begins by examining the consultation process and concludes that an underlying public policy objective was the root of the new offence despite the lack of a clear mandate for such a policy. The article then examines whether this weakness in the foundations for the proposed new offence caused the proposal to be substantially amended during the Committee Stage of the Criminal Justice and Immigration Bill: to the extent that the final version of s.63 substantially fails to meet the original public policy objective. The article concludes by asking whether s.63 may have unintended consequences in that it fails to criminalise some of the more extreme examples of violent pornography while criminalising consensual BDSM images, and questions whether s.63 will be enforceable in any meaningful way.

Regulating E-commerce: Formal Transactions in the Digital Age

As digital transactions become more common the need to regulate the commercial frontier of cyberspace becomes increasingly urgent. This has been recognised by national governments, supranational bodies and international organisations. The regulations proposed have though been offered in a piecemeal fashion. National governments attempt to fit cyberspace within the four corners of their (familiar) domestic jurisprudence, and even supranational and international bodies have been guilty of simply extending previous rules to the realm of cyberspace. This paper suggests that a coherent approach to the regulation of electronic commerce may start with an identification and application of principles rather than with the transference of rules. It uses as a reference, proposals for the modernisation of land transfer systems introduced in Canada and Australasia, currently being evaluated by the Keeper of the Registers of Scotland and the Law Commission/HM Registry. Underlying these proposals is a central issue: how ...

Regulation and rights in networked space

The Internet is often described as inherently free from regulation; a space where freedoms and liberties are guaranteed by the design of the network environment. The naivety of this view has, however, been exposed by commentators such as Shapiro, Reidenberg, and Lessig who have clearly demonstrated the inherent regulability of networked space. The question no longer is: can networked space be regulated? but rather, how and by whom is it regulated? This paper examines the regulation of rights in networked space. Property rights and rights to free speech, or free expression, are examined in relation to a number of issues that have emerged in the networked environment, or cyberspace. Its aim is to examine whether the embryonic regulatory structure of cyberspace, which has the advantage of starting with a completely clean slate, is sufficiently sympathetic to the unique qualities of this fledgling jurisdiction.

Nodes and Gravity in Virtual Space

Abstract In 1996 John Perry Barlow made his now infamous Declaration of Independence for Cyberspace. In this the cyberlibertarian ethos was laid out: We must declare our virtual selves immune to your sovereignty, even as we continue to consent to your rule over our bodies. We will spread ourselves across the Planet so that no one can arrest our thoughts. Since that date much has changed. The work of a number of US cyberpaternalist philosophers such as Jonathan Zittrain, Jack Goldsmith, Joel Reidenberg, Yochai Benkler and most famously Lawrence Lessig has illustrated the fundamental weaknesses in Barlow s (and therefore cyberlibertarianism s) basic premises. This does not mean though that because one can be controlled in cyberspace, one ought to be controlled or even one will be controlled. The distinction is between the ability to control and the effectiveness and legitimacy of control mechanisms. It is this distinction which is at the heart of network communitarianism and which is likely to come more to the fore as the network is replaced with the cloud, always on data, augmented reality and mobile data communications. The key issue for regulators now is the strength of the network and the ability of regulators to control within the network. Building upon previous regulatory designs of the author and taking account of nodal governance theory as developed by Clifford Shearing and Julia Black, this paper aims to demonstrate that the key to building effective and legitimate regulation in the virtual space is to recognise and harness key nodal connections and key nodes themselves. It will demonstrate how the cybercommunity functions as both a community and a group of individual nodes and will seek to develop a theory of regulatory gravity in which the relative communicative power of various nodes may be modelled to take account of the effectiveness and legitimacy of a regulatory intervention..

THE EUROPEAN UNION AND E-COMMERCE

The European Union has a long history of investment in, encouragement for, and development of, electronic commerce and for more than 20 years has established a strong, and mostly coherent, regulatory framework for the e-commerce sector. We can date the EU’s interest in e-commerce to at least the November 1996 Communication from the Commission Putting Services to Work. However that early interest from the Commission took a while to infiltrate further into EU institutions. In April 1997 the European Commission took forward the Putting Services to Work Communication and issued their now well-known initiative “A European Initiative on Electronic Commerce”. For the first time the Commission stated its intent to: “encourage the vigorous growth”, recognized the “fundamental importance of electronic commerce in Europe”, and envisioned for the European Union to become “the heartland of electronic commerce”. These undeniably high expectations have not all been realized. Against the backdrop of this fluid and dynamic economic, social and regulatory framework lawyers, both in practice and in academia, are often asked to explain the regulatory framework. In such a complex and fast moving arena asking any one lawyer to remain informed of the entire legal-regulatory framework seems unreasonable. For this reason we asked a series of contributors to each contribute a chapter within their area of expertise to provide an invaluable single resource for lawyers, academics, students and businesses both already within and entering the European e-commerce marketplace. Following on from this introductory chapter, the most important EU initiatives relevant to e-commerce are discussed. As with all Internet law related topics global regulations are ideal, but difficult to realize. This may change over time as more digital natives take positions in lawmaking and regulatory enforcement bodies. This though is still some way off and therefore for the moment we keep our focus on the European Union, but maybe one day the classic approach to state sovereignty and jurisdiction in relation to e-commerce will be replaced by a globally oriented approach.

Mapping the rule of law for the internet

Since its inception as a standalone topic of scholarship in the 1990s, the study of cyberlaw has been a study in regulatory theory. We have discussed systems of regulation and tools of regulatory enforcement. We have divided researchers into groups labelled as ‘techno-deterministic’ and ‘libertarian/communitarian’ and we have discussed regulatory effectiveness and legitimacy. The missing element of much cyberlaw study has been the law element. We have focused too extensively on the cyber and too little on the law. This chapter seeks to rebalance and refocus cyberlaw on the key element, the jurisprudential structure of cyberlaw, in particular to examine the question of the rule of law (or its absence) in cyberspace. In so doing it seeks to form the foundations of a cyberlaw jurisprudence by asking some difficult normative questions: Can a rule of law exist online? If so who is the legitimate lawmaker and what values are enshrined by cyberlaw?