Date: Tuesday 16 February 2010
Time: 11:00am -12:00pm
Venue: Z Block Room 1124, QUT Gardens Point campus
Panel Chairperson/Principal Supervisor: Prof Brian Fitzgerald, Faculty of Law
Other Panel Member: Dr John Banks, ARC Centre of Excellence for Creative Industries
External Panel Member: Professor Louise Longdin, Auckland University of Technology
This thesis considers how the law should regulate the exercise of private governance power in virtual communities? This question centres on the legitimacy of governance in the way that community norms are created and enforced. This is the project of digital constitutionalism, which seeks to articulate a set of limits on private power that will best encourage innovation and autonomy and simultaneously protect the legitimate interests of participants in these increasingly important spaces. In answering this question, I provide a normative framework based upon the broad ideals of the rule of law through which to conceptualise the tensions about governance that arise in virtual communities.
This thesis argues that the flexibility inherent in the private contractual law model that is currently used to govern virtual communities should be informed by constitutional principles – particularly those of the rule of law – in order for the law to properly address the tensions that arise out of private governance.
Rule of law values highlight three main themes that should serve to limit the abuse of private power in virtual community governance: a suggestion that participants ought not be subject to arbitrary punishment; that rules be general, equal, and certain; and, most importantly, that legitimacy in the rules is derived primarily from the consent of participants. This thesis argues that these values should be taken into account in interpreting contractual terms of service and the application of contractual doctrine in order to create a regulatory framework that supports autonomy and innovation in virtual communities whilst simultaneously limiting the abuse of power from illegitimate governance.