law

This page explores the legal framework for the information economy.

It covers -

• basic developments
• electronic transactions in Australia
• and overseas

It highlights electronic commerce law and administration in Australia and offshore, including questions of jurisdiction, evidence and signatures. There is a broader exploration of regulating cyberspace in the Governance guide.

     basic developments

As discussed in our governance guide, varying perceptions of challenges posed by a global, borderless and networked information economy have resulted in different proposals for the development of law.

Some groups have, unconvincingly, asserted that there is no need for law in cyberspace, particularly law that restricts 'content'. 

While increased reliance on private law - agreement to abide by terms & conditions or to use particular arbitral mechanisms - is likely, the likelihood of states abandoning their colonisation of the web is small. As Lawrence Lessig argues in the influential polemic Code & Other Laws of Cyberspace (New York: Basic Books 1999), during the first decade of the web governments had a hands-off approach but their involvement is increasing. That involvement is broadly welcomed by many areas of business and by community advocacy groups.

Some theorists have criticised the effectiveness of piecemeal extension of national/regional legislation and the evolution of global/bilateral agreements such as the EU-US Safe Harbor privacy agreement. 

They have called instead for more radical schemes that provide a new global framework for doing business online and across borders. One example is the controversial suggestion in the  American Bar Association's major cyberspace law report for a global commission to set international rules regarding banking, consumer protection, privacy, taxation, gambling and other online activities. Another is Ralph Nader's call for a World Consumer Protection Organization (WCPO) along the lines of the World Intellectual Property Organization, a UN agency. 

Such proposals appear unlikely to get off the ground. Our expectation is that we'll continue to see a mix of national law - often ad hoc and ill-conceived, such as Australia's datacasting restrictions and online censorship rules - global agreements and bilateral arrangements involving compliance with major trading blocs. All in all, business as usual.

     electronic transactions

At the national level Australia has chosen incremental improvement of the existing regime rather than a broad suite of new legislation specific to cyberspace.

That's unsurprising, given both the nature of law-making and the opportunities to build on existing legislation dealing with evidence, intellectual property, privacy, censorship, trade practices and other concerns.

The Australian Electronic Transactions Act 1999 (ETA) is perhaps the major achievement of the national government's 'strategic framework for the information economy' under the coordination of the National Office for the Information Economy (NOIE), giving electronic transactions involving Commonwealth government agencies the same status as those using paper.  

Because most contract law is a state responsibility, the Act is to be 'mirrored' by complementary state legislation. As yet, similar acts have come into effect in Victoria and NSW; further progress is likely to be slow.  

ETA reflects changes to the Evidence Act during the past decade - the law now looks more kindly on newfangled technology such as the photocopier - and the Electronic Commerce Expert Group's 1998 Electronic Commerce: Building the Legal Framework report, that embraced electronic signatures, record-keeping, contracts, the UNCITRAL model code for ecommerce, and other matters. 

The Commonwealth Attorney-General's Department has an e-Commerce homepage, primarily concerned with the Electronic Transactions Act. The Treasury Department has a small set of pointers to e-commerce and consumer affairs. More detailed information about security, intellectual property and consumer issues is found in those guides on this site. 

     and overseas

The slow pace of electronic commerce reform at the national and state/territory levels has been speeded up by overseas developments. In the US the Electronic Signatures In Global & National Commerce Act came into effect in October 2002. 

The United Nations Commission on International Trade Law (UNCITRAL) has proposed a model code for ecommerce, to be reflected in national legislation and practice across the globe.  Information about the code is available on the UNCITRAL website

In Europe the European Commission published a proposal for a Directive to "establish a coherent legal framework for electronic commerce across the EU".  

As bureaucracies respond to perceived opportunities and dangers (or merely a chance for travel to meetings in exotic locations) governance of the network of networks is coming under greater government scrutiny and increasing control. A perspective on that process is provided by the excellent Global Business Regulation (Cambridge: Cambridge Uni Press 2000) by John Braithwaite & Peter Drahos and All Politics Is Global: Explaining International Regulatory Regimes (Princeton: Princeton Uni Press 2007) by Daniel Drezner.

The American Bar Association has developed an excellent site exploring global jurisdiction issues. 

The Global Internet Project's 1999 paper on Jurisdiction in Cyberspace is worth reading. We also recommend the Commonwealth Attorney-General's discussion paper on the proposed Hague Convention on Jurisdiction & Foreign Judgements in Civil & Commercial Matters (HCCH), an international agreement applying to most private litigation.



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