Digital constitutionalism: the governance of virtual communities, part 3: principles of …

This is an outline of the third part of my thesis. Comments appreciated. See Part 1 and Part 2 for more background.

Contract law may be the most prominent area of law which affects the governance of virtual communities, but it is by no means alone in this category. The way that courts interpret and apply the law of copyright, property, defamation, assault, and other innumerable laws will necessarily alter the relationships between participants and proprietors. In each case, if the common law is insensitive to the subtleties which differentiate participation in virtual communities from simple consumer transactions, then it is likely to come to decisions which are substantially unjust.

This is an exceptionalist point of view. It is premised on the assumption that there are real qualitative differences between participation in virtual communities and participation in the many different relationships which occur in real space. This assumption may not be entirely true. What appears to be true, however, is that there is a real gap between the rhetoric of the legal discourse and reality, and this gap is in the virtual domain. This gap is evidenced in the assumptions that courts make in their interpretation and application of the law – particularly, that because individuals are self-sufficient, rational actors who enter into private transactions at arms-length fully aware of any inherent risks, any limitations which apply to public actors are neither necessary not desirable in the private sphere. To the extent that this assumption has ever been correct, it is much more open to challenge in a virtual context, where access to services which have become, if not strictly necessary, then at least extremely important to all aspects of everyday life, is controlled not by public governments but by private actors.

The exceptionalist argument can be made in two different ways. The first is an internal critique, an economic argument that there are market failures which ought to be corrected. This approach recognises that individuals are particularly disadvantaged in negotiations with the large commercial proprietors of virtual communities, are unable to properly evaluate risk, and are unable to adequately manifest demand for fairer terms. It also recognises that significant network effects and high switching costs inhibit competition by disincentivising new entrants and discouraging participants from leaving established communities. In these situations, it may be desirable to introduce safeguards to ensure that there is an efficient and competitive market.

The second approach, an external critique, goes further. By stepping back from the market rhetoric, we are able to suggest that there are certain interests which should not be left to determination solely by the market. We may recognise that there are certain public values which we do not wish to be negotiated in the society we are striving to create. We may decide that these interests, like the ability to communicate with friends and family, to speak freely, to express oneself, and to form communities and associate with whom we choose, are important enough that we do not want to necessarily subject them to the vagaries of the marketplace. In these circumstances, we may decide that some of the types of limits we normally associate with restraints on the actions of public actors are appropriate to impose upon private actors.

From either point of view, current legal doctrine does not adequately recognise the realities of participation in 'private' virtual communities. In either case, if the law is to arrive at just results, judges must be able to better recognise the interests which are at stake. I believe that in most cases, the common law is flexible enough to arrive at results which are appropriate and just in the circumstances. Principles of statutory interpretation and the development of precedent provide a mechanism through which judges are able to read the law in accordance with principle and reality, rather than continuing to entrench the established interests by ignoring the ideological content of law.

Australia does not have a bill of rights. Rather, it has long been said that the interests of all Australians are appropriately safeguarded by the legislature and the development of the common law. Where the legislature is unable to adequately protect the interests of individuals or groups, Australian courts have historically been willing to read both legislation and precedent in the light of public interest principles. It is these principles which provide the greatest hope of balancing the interests of participants and proprietors in a context which is at the same time partly private and commercial and partly public and partly personal.