Helga Law Journal - 01.01.2021, Síða 181

Helga Law Journal Vol. 1, 2021
186
International Legal Research Group
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models and with different levels of openness’.342 As a result, private law
mechanisms can potentially be invoked in regards to certain domains or servers.
However, the nature of occupying a space online is radically different from
realspace, methods may range from boycotting the use of an application to spam
posting to distributed denial of service attacks (DDoS) and denial of service
attacks (DoS). Although the law has firmly established that techniques such as
DDoS are criminal under the Computer Misuse Act 1990 (CMA), it must also
clarify the line between public and private cyberspaces.343 This will not be
uncontroversial, but it is urgently needed – whether petitions or opinions can be
removed by website operators will depend on this distinction.
On the flip side, there are many technical legal nuances attached to
assemblies in the physical world that may no longer be applicable in cyberspace.
The facts of Olympic Delivery Authority v Persons Unknown, provides a good
opportunity for us to examine these differences. Protesters attempted to obstruct
the construction of a site allocated for the 2012 Olympics by blocking lories and
establishing a camp. The Olympic Delivery Authority had an exclusive license
hence, there was sufficient interest to pursue a private nuisance claim.344 Yet,
their counsel also raised a public nuisance point, which Arnold J further
discussed. If there is ‘a public right of way’ over a route or a piece of land more
generally, any obstruction would constitute a public nuisance.345 Regardless, a
short-term injunction was ordered. In the virtual world, it would be much harder
to claim a public right over a website or platform because the majority are owned
by corporate entities. For public nuisance claims to be available, online public
functions would have to be defined and whether the freedom of assembly is
exercisable because a website performs certain activities. Although private
nuisance claims may appear to be more straightforward, the open nature of the
internet blurs the private/public space distinction and the lack of physicality may
make injunctions harder or even impossible to enforce – fences cannot be put
up and the police cannot be called to the rescue. Out of respect for privacy and
to avoid discrimination, there is no screening of users based on one’s identity or
intent prior to entering a website. Lessig points out that code seems to be able to
express law better than the law itself’ because it defines the terms which
cyberspace is offered – similar to ‘bars on a prison’.346 Hence, in practice, a
website can require an access code, but this is not a viable option for businesses
or operators that profit from advertisements. Moreover, the rise of hacking and
specialist software such as Circumventor has shown that code is not
impenetrable. Although the CMA may be triggered, if protesters engage in the
creation and sending of viruses. However, technology has evolved to a point

342 Andrea Renda, 'Antitrust, Regulation and The Neutrality Trap: A Plea For A Smart, Evidence-
Based Internet Policy' (Centre for European Policy Studies 2017), 7.
343 Computer Misuse Act 1990.
344 ibid, [17] (Arnold J).
345 ibid, [19] (Arnold J).
346 Lawrence Lessig, Code (2nd edn, Basic Books 2006), 83.

where Internet Protocol addresses (IPs) may be untraceable if virtual private
networks (VPNs) are used, which makes it difficult to ensure accountability.
Therefore, there are many elements of online protest that the law must consider
before it can be said to fully possess the capacity to facilitate digital social
movements and protests.
7.4 Conclusion: A Targeted Legal Regime for Online
Expression?
By extending realspace, laws into the virtual world and adding targeted provisions
regarding digital communications into the existing legal structure, it seems that
we are trying to make online expression and protest wear a hat that does not fit.
A new legal regime built upon a clearer understanding of online expression may
be more effective. It may even be time to accept that ICTs have revolutionized
human expression and our social interactions. This legal framework should, like
social media, be a tapestry that ties together the diverse elements that are unique
to the architecture of cyberspace. However, before any radical course of action
is embarked upon, the law which governs online expression on a whole should
be clarified, in particular, the precise point at which restraints are legitimate. A
secure legal foundation for free speech online is an important stepping stone
towards regulating the disputed right to digitally protest. Notably, there will be
practical issues that must be considered, such as whether website operators can
seek injunctions if they discover or are notified of a plan to protest and the
availability of damages and how they should be measured. As a result, there are
many aspects of online protest that the current UK law must consider, before it
can be said to fully possess the capacity of facilitating digital expression, social
movements and protests. Finally, this exploration was of a limited scope hence,
it is a tapestry that will require further weaving in order to reflect the expansive
and ever-changing face of cyberspace.
8 What Role and Responsibilities Do Academic
Institutions in Your Country Have Regarding
Promoting Freedom of Speech and the Right to
Protest Within and Outside Their Campuses?
8.1 Introduction
The rights to freedom of speech and freedom of assembly and association
provide a ‘foundation for democracy.’347 Together, freedom of speech and the

347 'Free Speech and Protest' (Liberty Human Rights, 2018)
<https://www.libertyhumanrights.org.uk/human-rights/free-speech-and-protest> accessed 1 June
2018.