Gringras: The Laws of the Internet

775 Pages·2022·5.504 MB·English

by  Paul Lambert

Gringras: The Laws of the Internet
Sixth edition
Dedication
To Maureen L
Love and may you always hear the sound of the sea and island seabirds as they
fly about the Eye
To Jane B
Whose love of words, learning, and community will always be remembered
fondly
Gringras: The Laws of
the Internet
Sixth edition
Dr Paul Lambert
Visiting Professor, Manchester Metropolitan University, IT Law Institute, Visiting
Research Fellow, Institute of Advanced Legal Studies, University of London
Edition Contributors
Intellectual Property
Phillip Johnson, Professor of Commercial Law, University of Cardiff
Networks, Social Networks, and Technology
Siobhán Grayson, Berkman Klein Center Affiliate, Harvard University
Regulation
Michael Ryan, M.H. Ryan Law
Contract
Rick Canavan, Associate Head, Manchester Metropolitan University
Tort
Dr Patrick Bishop, Hillary Rodham Clinton School of Law, Swansea University
Crime
Dr Laura Scaife, MD, Datultacy
Data Protection
Dr Paul Lambert, Visiting Professor
Competition
Dr Bruce Wardhaugh, Professor of Competition Law, Durham Law School
Consumer
Dr Christine Riefa, Professor of Law, Reading University
Anna Medvinskaia, Barrister, Gough Square Chambers
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Foreword to the First Edition
Judging by some of the stuff one reads – particularly from journalists – the
Internet will throw laws, or many of them, into chaos. The suggestion seems to
be the law cannot cope with the breakdown of national barriers, the cross-border
implications of the interlinking of computers world-wide. The scenario painted
is that the Internet will be a lawless dimension, with lawyers and clients having
no idea what to do or how to control the activities of others. Clive Gringras
is to be congratulated on not only debunking this myth but by doing so in a
constructive (and readable) way. What he has done here is to consider, subject
by subject, what rules the courts will develop and apply. As always what the law
will do is develop appropriate rules by analogy. Contract, tort (including special
variants of old torts, eg negligently allowing a virus to spread and new ways of
defaming people), intellectual property (particularly trade marks and copyright),
questions of jurisdiction, crime, data protection, and so on all have passed under
his intelligent consideration. Of course there are, as yet, few actual cases on
most points. So he has used his imagination to create problems and indicate
how the law is likely to answer them. Because he understands the Internet and
how it works well, his imaginary problems are realistic. Moreover he has up-to-
date intelligence of case law from other countries (particularly the US) which
supplement his fictional examples. Anyone with an Internet problem will find
this book a first port of call – and in many cases may well find an answer, or a
reasonable prediction of the answer. In one area where he obviously does not feel
entirely at home, namely tax (who would blame him?), he has sought assistance
from Conrad McDonnell of Gray’s Inn Chambers.
There is something of a spate of books which carry the names of firms of
solicitors. Many (but not all) are rather slight works, rushed out after some new
piece of legislation and not telling you much that is not in the Act. This is far
from such a work. Nabarro Nathanson are to be congratulated on allowing Mr
Gringras to put in what must have been a vast amount of work.
Hon Sir Robin Jacob
January 1997
v

Contents
Foreword to the First Edition v
Table of Cases xvii
Table of Statutes xlix
Table of Statutory Instruments lvii
Chapter 1 Introduction 1
Language and networks 2
Networking 2
The internet 3
The cost 4
Internet concepts 5
IP addresses and domain names 5
Email 6
Pseudo-anonymity 6
Instant messaging (IM) 7
Boards, pages and forums 7
Social media and user-generated content 8
File transfer protocol 8
World Wide Web 9
Social networks 11
This book 12
New and evolving issues 21
Chapter 2 Contract 25
Formation of contract 26
Contracting online 27
Pre-contract information 29
Offers and invitations to treat 36
Acceptance 43
Consideration 61
Intention 62
vii
Contents
Performance: payment 63
Online payments 63
Credit card non-payment 64
Digital cash non-payment 64
Jurisdiction 66
The Hague Convention on Choice of Court
Agreements 67
Choice of law 73
The Rome Convention 73
Express choice of law 74
Absence of choice 81
Chapter 3 Tort 87
Introduction 87
The internet and those involved in it 87
Over-arching legal topics 91
The Electronic Commerce (EC Directive) Regulations
2002 91
The future of the Electronic Commerce
(EC Directive) Regulations 2002 post-Brexit 94
Identifying internet users – law and technology 96
The rule in Norwich Pharmacal 97
Joint liability 99
Jurisdiction and choice of law in tort cases 99
Defamation 105
Overview of the law 105
Distinction between libel and slander 106
Who may sue and be sued – individuals, corporations
and public bodies 107
Special damage and financial loss 108
Defamatory statements 109
The requirement for publication 120
Publication by linking 124
The one-year limitation period and the ‘single
publication rule’ 125
Joint and vicarious liability for publication 127
General defences 127
Defences for disseminators of statements etc 141
Remedies 149
viii
Contents
The international element – jurisdiction and choice of
law in defamation 150
Possible impact of press regulation on news sites 153
Malicious falsehood 155
Overview 155
Elements of the tort 155
Examples of malicious falsehoods 156
Malicious falsehood and the internet 157
Damages for malicious falsehood 158
Malicious falsehood – the international element 158
Other deliberate torts 158
Deceit 158
Assault and harassment 159
Wrongful interference with property 161
Negligence 162
Negligent mis-statement 163
Negligent provision of services beyond static advice 165
Negligence resulting in damage to computers or data 168
Negligence causing injury to internet users 173
Negligence resulting in damage beyond data and
computer operations 174
Jurisdiction and choice of law in negligence 174
Chapter 4 Intellectual property 177
Trade marks, domain names and passing off 178
Technical rights versus legal rights 178
The nature of trade mark protection 179
Domain names 179
Trade marks versus domain names 180
Registration of trade marks 181
Signs that can be registered as trade marks 182
Absolute grounds of refusal 182
Registering in relation to goods and services 186
Classification 186
Opposition and registration 189
Registration of domain names 190
Trying to identify the domain name owner 190
Bad faith registrations 191
Trade mark infringement 192
ix