Helga Law Journal

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Helga Law Journal - 01.01.2021, Page 182

Helga Law Journal - 01.01.2021, Page 182
Helga Law Journal Vol. 1, 2021 186 International Legal Research Group 187 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.
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