Weaving the mesh : finding remedies in cyberspace

Abstract

This paper will categorise Cyberspace as a microcosm of Darwinistic evolution, tracing the organic growth which has resulted in the increasingly tangled web of rules that today stretches throughout the on-line world. This evolution has produced a complementarity and interdependence between self-regulation and state regulation in a manner which will probably long affect current and future trends in the laws of cyberspace. While exploring the interplay between self-regulation and state regulation, the discussion considers the likelihood of success of formal attempts at Internet governance. It is argued that the seeds of failure for a “Grand Internet Treaty” may lie in the origins and inherent characteristics of the structures of cyberspace: the very things which make the Internet an attractive proposition to many may threaten to defy the attempts of those who wish to control it more. Conversely, it is also argued that failure is not guaranteed. The paper concludes that, while rule systems will continue to converge, the driving force will remain the perennial search to provide remedies to the needs of clients. The latter drive for real-time remedies for real problems will probably produce workable rule-systems faster since they are pushed by the needs of millions of customers operating within the context of on-line market economics. This is in direct contrast to the development of formal rules for Internet Governance by states, a debate which at best excites only a few hundred people around the globe. Lawyers need practical solutions for their clients and this paper identifies a number of Private International Law problems that will increasingly dominate Public Law issues in Cyberlaw. One of the tentative conclusions explored is that the search for remedies will actually be successfully utilised by those arguing for formal Internet Governance, further reinforcing the mesh produced by the constant intertwining of self-regulation and state regulation.