Internet law as a specific discipline

Dr. Edmund R. So, originally from China and now living in the United States as a citizen exercising his profession in California as an Internet lawyer, e-mailed me and gave his comments on my previous article, “The Internet as a Litigation Tool.” According to him, the specific practice of Internet law has grown by “leaps and bounds ... it is thriving as it is still evolving,” and he was glad that “one Internet lawyer from the Philippines was writing about its development in her country.” I’d like to thank Dr. So for his e-mailed comments.

I would like to acknowledge the others who e-mailed me on the same article and expressed fundamentally the same views. Caroline S. Kennedy, a Ph.D. from New Orleans, USA, says that she has worked with Fil-Am lawyers with specializations in various fields of law and is impressed by their respective abilities, but she was surprised that none of them were involved in Internet law. She said, “Discovering you and knowing that this specialization is still evolving confirms the respect I have for the Filipino professional. The Philippines, after all, is a very progressive country.” It was an extremely nice e-mail for which I am grateful.

A former law professor in Istanbul, Turkey, who visited the Philippines in 2001 and prefers to remain anonymous, shared the view of Dr. So. Let us just call her “E-mailer.” The highlight of E-mailer’s letter was that, “The great debate on the conflict between free speech and the freedom of expression in cyberspace, on the one hand, and their control and limitation, on the other, has led to a proliferation of issues which are proper Internet legal issues, paving the way for cyber-lawyering to proliferate and be very profitable.”

The message that E-mailer sent me was a long one. Most of her views I subscribe to, even her remark that there should  be a migration within the next couple of years from traditional lawyering on cyber issues using traditional laws and jurisprudence, to a complete though extremely dynamic landscape of cyber law and its corresponding jurisprudence.

E-mailer mentioned the celebrated “Prodigy” case in the US as keynoting the importance of this particular discipline. I am familiar with this landmark case adjudicated on by the New York Supreme Court.

Though not a ruling of the Federal Supreme Court, it influenced the passage by the United States Congress in the mid-’90s of the Communications Decency Act (CDA). Section 230 of this act influenced the passage of equivalent legislation in many parts of the world, and provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision has formed one of the most important legal protections for Internet Service Providers (ISPs) and others who publish content on the World Wide Web. This holds true in the Philippines today, but the specific provisions in particular legislation will have to be forthcoming. The Philippine E-Commerce Act does not specifically provide for this.

In order to be able to comprehend the importance of Sec. 230, we have to understand its origin. Actually, this is the Prodigy case earlier referred to, which happened in 1995. An online service provider, Prodigy, once created a bulletin board called “Money Talk,” on which an anonymous poster made statements that a securities or investments company and its president had committed fraudulent and criminal acts in connection with a particular IPO (initial public offering).

Prodigy was sued by the president and the company for defamation, based on Prodigy’s allegation that it was a family-oriented computer network that exercised editorial control over the content of messages posted on its computer bulletin boards, thereby likening itself to a newspaper.

The plaintiffs’ lawsuit depended upon their competence in casting Prodigy as a publisher such as a newspaper publisher, rather than as a distributor such as a newsstand, because only the former traditionally has been responsible for defamation libel claims based upon content in its products.

The New York Supreme Court ruled that based on Prodigy’s exercise of editorial control, it indeed was a publisher and could be held liable for the anonymous postings made on its service.

The ruling was justified by the NY Supreme Court as necessary because Prodigy actively “utilizes technology and the manpower to delete notes from its computer bulletin boards on the basis of offensiveness and bad taste, i.e. it is clearly making decisions as to content ... and such decisions constitute editorial control ... Prodigy has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards ... Prodigy is a publisher rather than a distributor.”

This piece of jurisprudence, of course, produced a great deal of alarm among ISPs and other Internet publishers, who suddenly feared that they could be held liable for content created by their users. The ruling actually created a disincentive for publishers to take any action to control their users’ content, because by doing so, they would be creating legal responsibilities for themselves that otherwise would not exist. In other words, the law would actually be rewarding those who did nothing to delete offensive postings.

As a result of this twisted outcome, the passage of Sec. 230 of the CDA became necessary “in part to maintain the robust nature of Internet communications and, accordingly, to keep government interference in the medium at a minimum,” another US state court would later rule.

The above has taught the world that each jurisdiction in our global telecommunity — including the Philippines — must study very carefully some of the most important policy positions that have to be taken into consideration right now: a) to support and promote the continued development of the Internet and other interactive computer services and other interactive media; b) to encourage the development of technologies which maximize user control over what information is received by children, families, students and schools that use the Internet and other interactive computer services; c) to preserve the vibrancy and competitiveness of the free market that currently exists for the Internet and other interactive computer services, unfettered by regulation of the particular state jurisdiction; d) to ensure vigorous enforcement of criminal laws to discourage, prevent and punish trafficking in obscenity, stalking, harassment via the computer; and 5) to remove disincentives for the development and utilization of blocking and filtering technologies that enable parents to restrict their children’s access to objectionable or inappropriate cyber material.

As regards this particular aspect of Internet law and jurisprudence, indeed, every jurisdiction needs to undertake critical study and examination.

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