The impact of the digital age on law

• Author: Mr Justice Peter Charleton
• Position: Supreme Court of Ireland and Ciara Herlihy
• Pages: 50-66

IRISH JUDICIAL STUDIES JOURNAL

[2018] Irish Judicial Studies Journal Vol 2(1) 50

THE IMPACT OF THE DIGITAL AGE ON LAW

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.

1

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.

2

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.

3

1

Tim Wu, The Master Switch: The Rise and Fall of Information Empires. (New York, 2010) 38.

2

Neil Postman, Amusing Ourselves to Death: Public discourse in the Age of Showbusiness (London 1985) 155.

3

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.

IRISH JUDICIAL STUDIES JOURNAL

[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.