Regulation on the Internet: An overview

Excerpted from paper presented April 27 to the New Developments in Communications Law and Policy conference, Ottawa. Until relatively recently, there was a widespread belief that it would be impossible to regulate content on the Internet. The versatility of the Internet and the worldwide web as communications media has had an enormous impact on a broad range of commercial and human interaction. While initially many of these Internet-based activities were permitted to take place outside the realm of laws of general application; once the Internet achieved a critical mass, neither the courts nor governments were prepared to stand by and permit it to operate in a vacuum. The "wild west" days of the Internet were clearly numbered. We are now well past the point of judicial and governmental inactivity. As the Internet has evolved, it has become too important a medium for communication, the transaction of business and the dissemination of information to continue to be ignored. Its commercial importance, and its potential for abuse, have now caught the full attention of legislators around the world. Examples of the legislative response in Canada include the enactment of new privacy legislation, targeted in large measure at the Internet, and amendments to many statutes, including the Criminal Code, to better address Internet transactions. Copyright laws have also been amended in a number of ways, largely to address the Internet, and new forums have been created by the non-governmental bodies that administer domain names to deal with trademark conflicts. In Canada, these legislative initiatives have not been designed to regulate the Internet per se, but have rather, for the most part, been designed to ensure that laws of general application are adapted to apply to Internet conduct and to ensure that courts are equipped with the tools necessary to administer justice in an era of electronic communication. It is apparent that traditional principles of domestic law are being applied regularly to Internet transactions and communications. The common law is adapting to the new medium in much the same way as it has been called upon to adapt to new communications media and commercial arrangements for hundreds of years. Looking back on the evolution of the common law, the Internet should be viewed as part of a long continuum of technological developments that have changed the way we do business or communicate. All of these developments gave rise to new fact situations often involving multiple jurisdictions - a letter mailed in one country and read in another; a libel published in one country and read in another; a program broadcast in one country and watched or heard in another; a contractual offer made in one country and accepted in another; a product made in one country causing injury in another. In each instance, domestic laws were challenged by the new technology and in each instance our legal institutions responded either through adaptation of the common or civil law, or by amendment of pertinent legislation. A large body of private international law has been developed over the centuries to address issues of jurisdiction and comity in legal proceedings involving more than one jurisdiction. These principles of private international law are now being extended to new fact situations presented by the Internet, many of which involve multiple jurisdictions. While the extension of our domestic laws to Internet communications and transactions necessarily limits the scope of permitted conduct on the Internet and has an impact on Internet content, it rarely involves direct regulation of the Internet itself. While attempts to regulate Internet activity are understandable in this context, the application of our domestic laws to a global network of service providers and users is not free from difficulty. Perhaps foremost among these difficulties is the task of establishing a reasonable framework for asserting jurisdiction over Internet-related torts or commercial transactions. As the courts have attempted to sort out these jurisdictional issues, their understanding of the Internet has improved, and the principles that they apply to this analysis are more in tune with the realities of the Internet.

Regulation on the Internet: An overview

Broadcast | May 1, 2002

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