Issue 2004 (2)
By Professor Abdul Paliwala
(Editor's note: Due to technical changes being made to our website by IT Services the publication of this issue of the journal has been significantly delayed.)
Welcome to this year's second issue of the Journal of Information, Law and Technology (JILT), which consists of a conference report by Professor Abdul Paliwala, a book review by Professor Mads Bryde Andersen and six refereed articles from academics working on three continents. Ghenga Bamodu’s article on 'Information Communications Technology and E-Commerce: Challenges and Opportunities for the Nigerian Legal System and the Judiciary' is interesting both for the careful analysis of e-commerce issues and their relevance to the context of a developing country such as Nigeria. The author espouses the view that there is need for 'a re-orientation of the traditional focus of laws on paper-based transactions to accommodate the new methods of communication'. This is because of the 'prize' of enormous economic and social benefits that attend the advent of ICT:
In a developing economy where there is concern about marginalisation and a keen desire to take advantage of some of the benefits that attend globalisation, it is a prize worth the efforts necessary to address the challenges posed by the information communication technology revolution.
While this is an interesting perspective, it is not uncontroversial, as the existence of the digital divide between rich and poor countries raises the issue of whether benefits of e-commerce will necessarily flow from the rich to the poor.
Caroline Ncube’s 'Comparative Analysis of Zimbabwean and South African Data Protection Systems' considers that a sophisticated data protection regime is part of conducive trade conditions which are essential for developing nations in order to secure full participation in the global economy. It concludes:
In their current form the data protection systems of both Zimbabwe and South Africa are wholly inadequate. Not only do both jurisdictions fail to conform to the comprehensive laws model of data protection, their current laws also fall far short of internationally accepted data protection principles. However, given the current process of legal reform underway in South Africa it at least appears as though some of these inadequacies will be rectified there in the near future.
The analysis provides an important new dimension to the global development of data protection, yet it would have been useful to consider the extent to which data protection regimes in Africa can and should be similar to those in the western developed countries.
Greenleaf, Mowbray and Chung’s article ' A New home Online for Commonwealth Law: A Proposal for a Common LII' provides an exciting challenge for Common Law countries following on the success of the Droit Francophone countries in producing a home portal for French law countries. As Directors of the successful AustLII databases and as key participants in the growing WorldLII project providing free access to legal information to the law of many countries, their paper presents a globalising argument not merely for a philosophy of free access to law in the common law jurisdictions, but also for a common home (or independent access point) for accessing Commonwealth Law. The great advantage of such a home would be the easy ability to search, navigate and compare across jurisdictions, thus enhancing the common global development of the Common Law.
However, globalisation of access to information is not infrequently hampered by issues government policy on access to information and its commercialisation. Pas and De Vuyst’s article on 'Re-Establishing the Balance between the Public and Private Sectors: Regulating Public Sector Information Commercialisation in Europe' deals with the new Directive 98/2003/EC on the subject. In particular, its comparative study of US and European approaches is fascinating. Whereas the emphasis in the US is on open access to information with the concomitant of free right to commercialise, Europe provides a greater role for privacy and a distinction between access and commercialisation. For the authors:
Nevertheless, the most important issue regarding public sector information is that it should remain accessible for citizens. The difficulty thus lies in deciding what information should be kept freely accessible to citizens as part of their fundamental democratic right of access to information, and at the same time, distinguish that public sector information which is suitable for commercial exploitation.
For the authors, the Commission’s Directive fails because of the difficulties of harmonisation of law lead to vagueness, repeated references to national rules and practices and indecision about essential elements.
Kingsford Smith and Williamson’s paper 'How Do Online Investors Seek Information: And What Does This Mean for Regulation?' is a careful empirical study of the new world of online investment. Their findings are significant in that that existing regulatory policies have assumed that investors seek independent advice, whereas the new world of online investors may seek information from various sources which fall short of advice. Therefore regulatory policies have to change to take account of the implications of this, including the need for technology neutral regulation and for a more nuanced consideration of the role of new sources of opinion, influence and collective sentiment. That is technological change requires fundamental rethink of the nature of regulation.
From a different angle, Joseph Savirimuthu’s 'Code, Hybrid Models of Consent and the Electronic Commerce (EC Directive) Regulations' critiques the Regulations from a theoretical perspective in suggesting that the EC Directive views the Internet as a passive technological medium. In using traditional ‘Black Letter’ doctrine to provide answers to significant governance challenges, it takes what Lessig, Benkler and Boyle would consider to be an East-Coast model of contracting in an internet era when a West-Code model, which fully integrates the nature of technology and its inherent ‘Code’ in the consideration of the new governance challenges posed by e-Commerce. The East-Coast West-Coast argument is in fact a new version of the old argument about technological determinism and its impact on law. Yet, as Lessig the Code enthusiasts point out, the issues go beyond abstract considerations of the nature of technology and have paradigmatic significance for the nature of society. We welcome your participation in these important debates as commentators and authors of articles.
As usual, we hope you enjoy this latest edition and we look forward to receiving your valuable contributions to the journa in due course. Please send your articles to Brent Hanks.
Professor Paliwala teaches in the Faculty of Law at the University of Warwick.
He can be reached at A.Paliwala@warwick.ac.uk
This is an Editorial published on 30 November 2004.
Citation: Editorial 2004 (2). The Journal of Information, Law and Technology (JILT).