Precedent (Australian Lawyers Alliance)
WORLD WIDE WORRIES
By Margaret Jackson
The internet governs every aspect of our lives today whether we are at work, at home, on holidays, shopping, in hospital, or running on the beach. It was about 15 years ago that the emergence of web 2.0-enabled user-generated content, coupled with the release of mobile devices, led to radical changes to our ways of communicating. The first event resulted in social media networking and the second provided us with mobility and the ability to access the internet from anywhere.
The internet is a largely unregulated space. Generally, any attempts to introduce regulations relating to the internet are undertaken by individual nations, and not at an international level. This does not mean that there are not a range of international agreements affecting the internet, such as the OECD Guidelines on Data Protection which provide voluntary uniform minimum standards on how personal data should be collected, used, disclosed and stored. However, internet activities of individuals and organisations are predominantly governed by national laws covering contracts, consumer protection, crime, defamation and so on. Dan Svantesson argues for territoriality to be softened in the future to allow the fluid nature of the internet to be tackled, but that may be some time in the future. Chris Curtis focuses on internet defamation to explore some of the jurisdictional issues relating to publication, hosts of third party content, and search engines.
The business models of the social media website providers were based primarily around using the personal information of users to attract advertisers. The providers stated that they didn’t collect personal information, users shared their information. And there is no doubt that millions of users around the world are very happy to share personal information with a huge number of people daily: any information, no matter how banal and trivial. Sharing on social media has become the primary daily activity for many.
In the meantime, society has to deal with worldwide issues around the mass of information and data that is stored on, sent via, collected from and created by the internet. In particular, organisations, national and international, collect massive amounts of personal data about and from customers and users. There are increasing numbers of media reports about unauthorised access to and use of this data, together with a general perception that organisations are failing in their obligations to keep such data secure. Organisations that do take information security seriously are seeking to minimise their risks of damages arising from a data breach though the use of cybersecurity insurance, as discussed by Ciaran Finnane and Alana Maurushat.
Bulletin boards, forums and now social media sites permit individuals to post defamatory comments anonymously, to post private photographs never intended for public viewing and to pour out spiteful and malicious gossip and lies. Anna Bunn and Jonathan Clough each explore challenges that have arisen as a result of our ability to post content indiscriminately. Hadeel Al-Alosi, Atul Vidhata and Alana Maurushat discuss some aspects of cyberbullying.
The legal profession has adapted to the role of the internet in our lives and work. Some of our courts now successfully use Twitter as a communication tool, and have also set up Facebook pages, with mixed success. Courts are prepared to accept electronic communications from practitioners in appropriate circumstances, as outlined by Kathryn Howard and Alexandra Tighe; using the internet for substituted service of process also poses particular challenges for practitioners, as discussed by Gaye Middleton.
Difficulties are faced by practitioners when they have to consider the admissibility of internet-based evidence. As Jeremy Trost points out, information on the internet is not necessarily stored on it; rather, it is communicated via the internet and may not even be stored as it is being communicated. As well, the vast amount of metadata created as a result of electronic communications may be just as valuable as evidence as the communications themselves. The rules of evidence are adaptable to electronic data, but care must be taken in identifying which data is needed and locating data from the right date and time.
The law may struggle sometimes when dealing with the growing, turbulent, ever-changing, interwoven networks called the internet, but is proving itself quite flexible in many ways.
Margaret Jackson is an Emeritus Professor at the College of Business, RMIT University.