Private Lawmaking in Commercial Cyberspace

8 Pages Posted: 19 Sep 2017 Last revised: 21 Sep 2017

See all articles by Eliza Mik

Eliza Mik

The Chinese University of Hong Kong (CUHK) - Faculty of Law; TILT; Melbourne Law School

Date Written: October 5, 2016

Abstract

No discussion of “Law and Technology” would be complete without at least one essay centered on the Internet. While the Internet no longer captures our imagination with the same force as it did 20 years ago, we cannot assume that it no longer creates (or perpetuates?) multiple legal problems. When we talk about the Internet we must, however, refrain from the popular “Internet meta-narrative” that often leads to superficial arguments and unhelpful generalizations. We must always remain aware of the multiplicity of the Internet’s technical applications and the wide range of legal contexts in which the term gains significance. Discussing the Internet in the context of freedom of speech or cybercrime raises different legal issues than in the context of commerce or contract. In most instances, we should avoid mentioning the Internet altogether and refer to specific Internet-enabled technologies or services, such as e.g. the web or video streaming. This brief essay addresses one specific issue: the regulation of online activity by means of private agreement. I have, however, chosen yet another term to provide the backdrop for the discussion: “cyberspace.” Although we know that cyberspace only exists at some esoteric, conceptual level, I have chosen the term to pay homage to early cyberspace scholarship, to invoke the reader’s memories of its idealistic values and its promotion of separatist, self-regulatory thinking. Consequently, embellishing cyberspace with the adjective “commercial” seems highly inappropriate, if not heretical. After all, cyberspace is supposed to be free, permeated with community spirit and libertarian values. How can it be commercial?

Suggested Citation

Mik, Eliza, Private Lawmaking in Commercial Cyberspace (October 5, 2016). Available at SSRN: https://ssrn.com/abstract=2878420 or http://dx.doi.org/10.2139/ssrn.2878420

Eliza Mik (Contact Author)

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

TILT ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Melbourne Law School ( email )

185 Pelham Street
Melbourne, VIC 3010
Australia

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