The impact of the digital age on law

AuthorMr Justice Peter Charleton
PositionSupreme Court of Ireland and Ciara Herlihy
[2018] Irish Judicial Studies Journal Vol 2(1) 50
Mr Justice Peter Charleton and Ciara Herlihy
When in the 1920s, radio first achieved mass penetration in the United States of
America, it generated optimism on a utopian scale: the level of public discourse
would be elevated; culture in sound, through classical music and drama readings,
would become widespread, educating the masses; working people would be
exposed to the thoughts of philosophers and experts in all fields, thereby
attaining their level of reasoning; and the vast distance between the federal
government and citizens would become no more than as if the entire nation was
a small town.
When the television became popular 50 years later in the 1970s,
that optimism had disappeared, criticism being the order of the day: the view was
that children should be kept away from television; that exposure to low moral
standards would derail society; that the excesses of pulp fiction would crowd out
elevating drama, and that addiction to image would undermine the ability to
work. According to Neil Postman, culture would be shrivelled through
imprisonment in triviality and through turning art into a burlesque.
We seemed
to learnt by experience. Yet, when the Internet achieved its initial burst of
popularity 25 years ago, these dreams returned in an unexpected form. Many
believed that a new realm had been created, one where the territoriality of nation
states could not impinge with their laws and administrative controls, but where
freedom, in an unfettered and pure form, would instead reign as the supreme
value. Indeed, there was a declaration to that effect:
Governments…on behalf of the future…leave us alone. You are not
welcome among us. You have no sovereignty where we gather …[T]he
global social space we are building [is] naturally independent of the
tyrannies you seek to impose on us. You have no moral right to rule us
nor do you possess any methods of enforcement we have true reason to
fear. Governments derive their just powers from the consent of the
governed. You have neither solicited nor received ours…Cyberspace does
not lie within your borders…It is an act of nature and it grows itself
through our collective actions. You have not engaged in our great and
gathering conversation, nor did you create our market-places…Where
there are real conflicts, where there are wrongs, we will identify and
address them by our means…This governance will arise according to the
conditions of our world not yours. Our world is different.
Tim Wu, The Master Switch: The Rise and Fall of Information Empires. (New York, 2010) 38.
Neil Postman, Amusing Ourselves to Death: Public discourse in the Age of Showbusiness (London 1985) 155.
Peter Barlow, Declaration of Independence of Cyberspace, 1996, quoted in John Naughton. From Gutenberg to
Zuckerberg: What you really need to know about the Internet (London 2012) 29.
[2018] Irish Judicial Studies Journal Vol 2(1) 51
Law applies to situations where there is a need to regulate human conduct in that
sphere. Law is the pivotal point of the social compact out of which nations are
constructed. Hence, law is generally territorial; it applies within the boundaries of
a nation. No aspect of law is immutable. Theories of natural law may posit that
values such as life are beyond regulation. Indeed, the Constitution of Ireland
holds that the family is the fundamental unit on which society is based and as
such possesses ‘inalienable and imprescriptible rights … antecedent and superior
to all positive law; Article 41.1.1º. But, generally law is the expression of public
policy. In our democratic societies, increasingly changes are proposed in public
discourse where what the French call the fourth estate holds the power to swing
debate, and where the touchstone of regulation is increasingly public attitudes
reflected in opinion polls. Administrative inertia may leave laws in place longer
than their purpose serves, but generally proposing a new law is a more difficult
goal to achieve than working within the confines of existing law. Thus, whether
there is a fundamental core of law apart from the Universal Declaration of
Human Rights and other instruments becomes irrelevant, because the collective
authority of democracy generally results in the public granting themselves that
degree of regulation over those spheres which they decide need regulating. In
this too, judges play their part. The accusation usually levelled by the fourth
estate against the judiciary is that of being out of touch. In countries where juries
try criminal cases, citizens have a judicial function. It was in the 17th century, that
in England they eventually refused to return guilty verdicts on those accused of
being witches. Where judges give verdicts, in the Anglo-American system, a
sentence which does not reflect the crime can have the same effect as
decriminalising conduct by way of judicial action; hence it becomes possible to
effectively legalise brothels, drug taking, and assisted suicide in situations of
extreme distress. This may be done either through verdicts or through the
handing down of overly lenient penalties.
Such actions, where they occur, reflect a fundamental swing in attitude, which
generally says that the law is futile. Such futility happens when acceptance of a
particular wrong becomes widespread in society. This can also occur where the
decision maker says that regulation of a particular matter is impossible.
Supporters of liberty on the Internet say that enforcement of the law is not
welcome in that sphere. Often, enforcement is not welcome. So, that’s not new.
But they also call the Internet a place apart, where the law holds no sway. The
architecture of the World Wide Web, coupled with experience, suggests that this
may be so.

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