Beginning a series of articles on Internet legislation, Laurie Lau, a PhD student in I.T. law at City University of Hong Kong, outlines the legislative approach adopted in other countries.

HK legislation on the Internet and Other Jurisdictions
Part 1: An introduction to legislation on the Internet
28 October 1999

The rapid growth of the Internet and e-commerce in the 1990s has generated an urgent need for legislation on the legal issues that arise when transactions are made across the Internet, particularly across international borders. This paper is the first in a series which will discuss the basic legal issues that users might encounter under the current Hong Kong legislation, and which are similarly likely to arise in other common law jurisdictions.

In this paper I will give an overview of the development so far of Internet legislation in Hong Kong and some common law countries. In later articles, I will discuss in detail the effect of this legislation on our daily life, especially in relation to e-commerce.

What is Internet law?

First of all, no country in the World has enacted a specific "Internet law". Hong Kong is no exception. Instead, there are a collection of existing laws which may provide protection for Internet usage or when completing e-commerce transactions such as copyright law, electronic data interchange law, telecommunications law and broadcasting law. There is a saying in the legal profession that if things are not covered in the on-line world, then look off-line for coverage. There are too many applicable laws which may lead to a conflict of law, and this makes it complex and confusing for the average citizen. Why is it so difficult to come up with a specific law for the Internet ? There are several reasons. The major ones are:

  1. international and domestic politics; no country wants to give up their rules to satisfy those of another country;
  2. the nature of the Internet itself, as cited by the American Court Judge in the case of American Civil Liberties Union et al v. Reno , 929 F. Supp. 824 (E.D.Pa.),1996:
  1. the impossibility to determine the Internet's size and the number and the identity of its participants at a given moment;
  2. its decentralised, self-maintaining, non-administered, and partly uncontrolled nature;
  3. packet - switching, i.e. routing subdivided messages independently and reassembling the packets at their destination;
  4. that, unless a message is encrypted, it can be accessed, viewed, and maybe manipulated on its way from the sender to the recipient;
  5. real time remote computer utilisation;
  6. the peculiarities of the World Wide Web, and, in particular, the links contained in many documents stored, taking the user from the original web site to another web site on another computer - from one computer to another, from one document to another;
  7. that the content provider may actually be a hybrid of individuals and corporations whose web sites and data bases are linked;
  8. the multi-role of participants, who, at the same time, may be providers and receivers;
  9. the potentially universal availability and ubiquitous impact of everything on the net.

  1. Internet and e-commerce communities oppose government legislation. They prefer self-regulation, arguing that any heavy legislation would hinder the growth of e-commerce. Such voice is not just being aired in Hong Kong but similar voices have been heard in most of the common law countries, such as UK, USA, Singapore and so on.

The Progress on Internet Legislation?

So far, the international Internet regulation mostly takes the form of non-mandatory "model law" which acts as guideline for countries who wish to study them. Unfortunately, most countries have not adopted a model law, for example, the UNCITRAL model law, and the OECD is working toward a model law of their own for e-commerce. The latest addition is the APEC model law announced by APEC leaders after the New Zealand meetings in Sep-99, though it is still in an early drafting stage. However, amongst all the model laws only the European Union model law is mandatory. It is the working paper for Internet and e-commerce which each member country must incorporate into their national laws.

Apart from model laws, many countries, especially common law countries, have enacted or are currently developing legislation in an effort to promote e-commerce. For example, the UK has just (8-Oct-99) completed its final consultation on draft legislation for Electronic Transactions Bill, which will now proceed to Parliament. Similarly, Hong Kong has gone through its first reading at Legco for its own Electronic Transactions Ordinance on 15-Jul-99 and is expected to go through its second and third readings at the end of November this year, which is expected to become law in time for the new Millennium. Both Malaysia (1997) and Singapore (1998) have already enacted their electronic transactions legislation. The USA was the first country in the world to introduce a state legislation (not federal law) in 1995, namely the Utah Bill, in order to promote e-commerce. Within a couple of years the rest of states in the USA passed their own Electronic Transactions Bills, in accordance with their provincial needs. However, so far none of this legislation has been tested in an open court situation. We are, therefore, still in a uncharted water.

What does the Internet legislation provide in terms of protection?

Almost all current or proposed Internet legislation in Hong Kong, Singapore, Malaysia and the UK puts heavy emphasis on three areas, namely; (a) Electronic Signature, (b) Public and Private Keys and (c) Certificate Authorities. However, the question in a real dynamic business world is whether that provides enough protection for people, when they do business transactions over the Internet? Well, my answer to that is "No"! There are too many loopholes in the formation of contract, attribution and enforcement, jurisdiction and taxation. Even in our existing common law system which has been running for the last three hundred years, we find, time and time again, loopholes in the laws. We can therefore imagine the challenges that arise from Internet legislation, when Internet technology and the e-commerce business environment are changing daily.

The second question is whether the new legislation will provide the foundation for the growth of e-commerce, and which common law countries have the foresight to provide better protection.

I will discuss these issues later in the series. All in all, caveat emptor, buyer beware! With e-commerce and Internet legislation both the seller and buyer have to be cautious of falling into the legal cyber-hole.

© Laurie Lau Yiu Chung, 1999.

Mr. Lau is a PhD student in I.T. law at City University of Hong Kong. Click here to send him feedback. This paper is written to provide a general guide to the relevant law. It does not attempt to be comprehensive in any way and is not intended to provide legal advice of any kind. The views expressed are those of the author and not necessarily of Webb-site.com.

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