Contemporary Issues:
The Individual and
Technology
Cyberspace
Ben and Rachel
Cyberspace:
•
Cyberspace: The environment in which electronic communication
occurs; the culture of the internet.
• Internet: A global network of interconnected computers networks
that allows users to share information in a number of ways.
Significant cases to Cyberspace
•
R v Boden [2002] QCA 164
•
Australian Competition and Consumer Commission v
Chen [2002] FCA 1248
R v Boden [2002] QCA 164
•
A 49 year old hacker, Votek Boden was sentenced to two years’
imprisonment after being found guilty of hacking into Maroochy
Shire’s computerised waste management system.
•
Boden was accused of causing millions of litres of raw sewage to spill
out into local rivers and parks killing marine life and causing offensive
smells.
•
He was motivated by revenge after he was refused a job at the plant.
Australian Competition and Consumer
Commission v Chen [2002] FCA 1248
The issue of court's jurisdiction over the Internet was addressed in
Australia in October 2002, in Australian Competition & Consumer
Commission v Chen [2002] FCA 1248 (8 October 2002).
•
The Australian Competition and Consumer Commission (the ACCC) alleged that
the website, www.sydneyopera.org, had claimed to be the official booking site of the
Sydney Opera House (the official website is, in fact,
www.sydneyoperahouse.com.au).
•
The ACCC had further alleged that Mr. Richard Chen, as the operator of the
websites (and apparently based in the US), had breached sections of the Trade
Practices Act 1974 (Cth) (the TPA)
•
Court made orders required Mr. Chen restrain from publishing or operating the
website and to 'remove' the website, so as to make them inaccessible to persons or
computers within Australia.
Public View of Cyberspace
For people with mental health issues the cloak of cyberspace
has advantages: The Guardian:
“The distance provided by the internet, the knowledge that one cannot be seen, the fact
you can log off at any time, are what make the communication feel possible”, says Clare
Allan.
Our rights are being trampled in Cyberspace: The Telegraph:
“Global multinationals like Google claim that courts have no jurisdiction over them”,
explains John Reid. “There is no right without a remedy.” Though not universally true,
this maxim of equity is a cornerstone of English and American common law and core
values. But remedies – judicial, political, or administrative – require institutions to
establish, adjudicate, and enforce them. Without these, you either have no remedy, or
vigilantism, or anarchy.
Difficulties With Enforcing Rights
There are three distinct features of cyberspace that pose a unique
challenge to legal regulations:
1. It Facilitates (anonymity ( the condition of being anonyms):
The internet has made it much easier for persons to distribute information and
messages anonymously or using a pseudonym (a name that a person or group assume,
an alias).
2. It Facilitates Creativity:
The computers connected to the internet, the internet also permit information and
services to be create. They can be used to create software programs that improve their
performance or enhance or change their role. This means that the internet is constantly
evolving and changing, at a rate in which the law can’t keep up.
3. It Is Global:
Cyberspace lacks national boundaries. Like-minded people can communicate with each
other join online communities regardless of where they live in the world. Therefore it is
difficult for a nation-state to control what goes on within its territorial borders.
Areas of Legal Concern with regards to
Cyberspace:
Even in cases were jurisdiction is clear, there are difficulties with
enforcement of the law in Cyberspace. Most Civil and Criminal offences
relating to Cyberspace can be classified into the categories, however, they
may also take on new characteristics.
1. Hacking: Hacking is unauthorised access to data held within a computer or
computer system, changing the data, interfering with electronic communication
between computers, or impairing the security, reliability or function of stored
electronic data.
2. Internet Fraud: Fraud is intentional misinterpretation or concealment of of
information in order to deceive or mislead. On the internet they can function
through unsolicited e-mail, websites promoting pyramid selling and unsolicited
advertisements.
3. Spam: Spam is junk mail received electronically. Some spam is harmless but much
of it is malicious and potentially damaging to the recipient. Spam is also known as
unsolicited Bulk e-mail that the recipient did not ask for or granted permission to
have sent to him or her.
The Role of Law Reform in Addressing Emerging
Technological Issues and Enforcing Rights
The three distinctive features of cyberspace pose unique
challenges for legal regulation. It facilitates anonymity, creativity
and it is global.
No government or court can claim cyberspace as its exclusive
jurisdiction. Its global nature poses particular challenges for the
law.
There are difficulties with enforcement of the law in cyberspace,
as law reform can’t stay effective and up to date with the speed
to which the internet grows and evolves.
Legal Implications:
To lay down broad, general principles for personal data
protection in “omnibus” laws that cover most or all commercial
activities. These laws are enforced chiefly by specialised
regulatory bodies (generically termed the “Data Protection
Authorities”), but they are increasingly enforceable in private
court actions as well.
Legal Responses
•
Berne Convention for the Protection of Literary and Artistic Works
(1886)
•
Universal Copyright Convention (1952)
•
Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations (1961)
•
World Trade Organization Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) (1994)
•
WIPO Copyright Treaty (1996)
•
WIPO Performances and Phonograms Treaty (1996)
Cyberspace Acts
•
Cybercrime Act 2001 (Cth) amended the Criminal Code 1995 (Cth) and
Crimes Act 1914 (Cth)
•
Criminal Code 1899 (Qld) prohibits unauthorized use of identification
information for the purpose of committing an indictable offence.
•
Trade Practices Act 1974 (Cth), seeks to promote competition, fair trading
as well as providing protection for consumers.
•
Spam Act 2003 (Cth) it is illegal to send, or cause to be sent, unsolicited
commercial electronic message through email, instant messaging, text
message or multimedia message service
•
Spam (Consequential Amendments) Act 2003 (Cth) amended the
Telecommunications Act 1997 (Cth) and the Australian Communications
Authority Act 1997 (Cth)
•
Patent Cooperation Treaty (1970), give trading partners similar rights and
ensure that the patent rights of Australian inventors are upheld overseas.
Effectiveness
R v Boden [2002] QCA 164:
•
Votek Boden was sentenced to two years for his crimes, this will prevent him from
committing this offence again. However, the courts and subsequently the government
have failed to properly address the problem of hacking. They haven’t stopped other
people from causing damages through hacking and the sentencing is light considering
the crimes and damages caused.
Australian Competition and Consumer Commission v Chen [2002]
FCA 1248
•
Accordingly, the court made orders for the service of proceedings (orders that apply
outside of Australia.) on Mr. Chen, as well as interim orders requiring that Mr. Chen
restrain from publishing or operating the websites and to 'remove' the websites so as to
make them inaccessible to persons or computers within Australia.
•
While the TPA and the relevant case law do appear to provide a legal basis for the
transnational application of Australian law, it remains an open question as to the
practical effectiveness of such orders.
•
There was no discussion in the orders regarding the actual technical requirements for
preventing Australian access to the websites. However the www.sydneyopera.org site is no
longer in operation.