Imagined collisions in cyberspace and the 3 strikes rule: An Essay

• Singapore Law Watch

  tags: no_tag

  • Goh Suan Hee v Teo Cher Teck
    [2009] SGCA 52

The Background

The appellant, a Malaysian national, was involved in a motor accident with the respondent, a Singaporean national, on 21 January 2007 in Johor Bahru, Malaysia. The appellant’s car had collided into the back of the respondent’s car. As a result of this accident, the appellant was fined RM300 by the Malaysian traffic police. Subsequently, the respondent brought a claim against the appellant in the District Court in Singapore for damages for personal injury caused by the appellant’s negligence. The appellant’s insurer, Pacific & Orient Insurance Co, took over the conduct of the proceedings.

The appellant applied for an order that the action be stayed on the ground of forum non conveniens, arguing that Malaysia was a more appropriate forum to adjudicate on the matter. This application was dismissed by the Deputy Registrar of the Subordinate Courts, Ms Carol Ling, but was allowed, on appeal, by the DJ. The DJ, in allowing the appeal, had accepted the appellant’s argument that Malaysia was the proper forum because it was the place where the tort had occurred. The respondent appealed.

 

As I read this case, I could not help thinking about the debates regarding the collisions in cyberspace and how the traditional rules on jurisdiction and applicable law were to be applied to this context. Like the appeal court, maybe it is for each country to decide what rules apply and how these are to be enforced.
Let us change the facts in Goh Suan Hee v Teo Cher Teck little - one which transforms this collision to one which takes place in cyberspace.
Frances, a French national, was found to have persistently engaged in illegal file sharing of copyright works contained on this website. Frances is currently residing in England. Which law should be applied? Which is appropriate forum for adjudication? Can French Law, regarding the 3 strikes rule be extended to the UK? Surely, a national government should be able to enforce its sovereignty and enforce its copyright laws against its citizens, even though they are based in another jurisdiction? This is quite an intriguing proposition. Is the Internet potentially an ungovernable environment? According to Rappa the Internet now provides a context for two transborder issues:

One deals with how the Internet itself, a technologically complex global communication network, can be managed so it can continue to grow. There are several organizations, many of which are gathered under the umbrella of the Internet Society, which oversee the complicated task of balancing competing interests in the evolution of new technical standards (see Table). The tasks of Internet governance in this regard are:

1. Domain names: the rules guiding the creation and administration of top-level domain names (TLDs), such as ".com" or ".org", and country-specific TLDs, like ".au" (Australia).
2. Internet Protocol (IP) addresses: the allocation of unique IP numbers so that each machine connected to the network has its own numerical address.
3. Root nameservers: Management of the 13 root nameservers that resolve domain names into IP numbers and enable information to flow across the network.
4. Standardization: encouraging the adoption of technical standards to preserve interoperability across the network as technologies evolve.

The second major issue is how to legally govern activity conducted on the Internet. This task remains the responsibility of the government of each nation around the world that is connected to the Internet. The regulatory agenda covers a wide range of activities: the regulation of business transactions and securities trading; consumer protection (including the protection of minors); fairness in advertising; the protection of intellectual property; various forms of taxation on the sale of goods and services; prohibitions on gambling, the trafficking of alcohol and other controlled substances across borders; regulations on the safety of food and prescription drugs; the protection of free speech and controls on the distribution of indecent materials. These are just some of the areas in which the government has had a historical role.

Can ideas about the sovereignty of the State to prescribe laws be extended to current moves to disconnect persistent infringers of copyright laws? There is precedent for this move, albeit in a different context.
Could it not be the case that since the rule of law is being displaced in certain areas, like intellectual property, that technological solutions are necessary? Holland poses an intriguing question, that chimes true:

Is conformity to the rule of law a prerequisite of authority or simply one value among many, to be weighed against other values served by law and promoted, but without such exaggerated importance that it devalues other laudable social goals?

. Holland thinks that:

it is the value of the rule of law that should inform our choices
of what the network should be. If we are to truly regard and promote conformity to the rule of law then we must identify those values and/or goals of society against which such conformity is to be weighed. As such, the normative ideal requires us to confront our vision of and for the Internet. Only then may we truly determine to what degree conformity to the rule of law is to be pursued at the expense of other values, and how such conformity might be advanced. Should we seek some sort of international regime in which regulation of certain online activity is harmonized? Or should legal regimes that fail to conform their regulation of online activity be rejected by the user's home country, placing the burden on the state to regulate upstream from the domestic data recipient? The answers to these questions are predicated on choices that have yet to be made, but which are compelled by a commitment to the rule of law.

We have some possibleanswers. That said the legitimacy of the states authority to prescribe laws, for example, must not be conflated with the efficacy of the measures adopted. Herein lies the paradox: how do we design measures for the Internet, which upholds the rule of law and is efficient? Holland, does not give us any answers here. I think that one way of thinking through this question would be to remind ourselves of Fuller's story about King Rex. I was reminded of this story when listening to the BBC Radio 4 coverage on file sharing:

"Lord Mandelson recently announced the government's plans for tackling illegal file sharing online. Under new measures, repeat offenders who ignore warning letters could have their internet connection removed. High-profile figures including Lily Allen and Radiohead's Ed O'Brien have been weighing into the debate over what approach the government and music industry should take to tackle the problem. Minister for Digital Britain Stephen Timms, CEO of UK Music Feargal Sharkey and Cory Doctorow, the journalist and supporter of copyright liberalisation, discuss the issues surrounding the file sharing debate."

Grimmelmann has a useful introduction to Lon Fuller's ideas. Ethan has some thoughts that lend weight to the idea of a peer produced norm culture.