Do we need a tort of cyber-trespass? Steve Hedley SLS Cyberlaw 8/9/2005

2 “tort of cyber-trespass” ???? A method of regulating online interactions which: a. is a general legal norm b. was and is developed by the courts c. is based on civil liability d. recognises online computing systems as property

3 Does it matter which tort? o Trespass to land? ... to chattels? ... to (another’s part of) the net? o Cyber-nuisance? o Wilkinson v. Downton ? o Breach of contract?

4 What have “trespassers” done? o Theft of data  (but not necessarily in breach of copyright) o Sent spam  (or stolen data to assist in spam) o Placed undue strain on servers o Created deep links

5 But what is “damage”? o Any use of another’s server constitutes actionable trespass (eBay, Inc v Bidder’s Edge, Inc) -vs- o Nothing short of (???physical) damage will do (Intel Corp v Hamidi )

6 “Thou shalt not trespass” - Pro o Cybertrespass should be forbidden for the same reasons that ordinary trespass is forbidden o The greater right (to shut a server down) implies the lesser (to control what others do there)

7 “Thou shalt not trespass” - Con o Much suspicion of analogies with property o Does the greater really imply the lesser? o Don’t websurfers have rights too?

8 Legal foundations of “cybertrespass”? 1. Browsewrap contract 2. Confidentiality 3. Ownership of the address 4. Copyright 5. Database right 6. Privacy

9 7. Criminal trespass (But cf the “mission creep” of this offence away from trespass: especiallyR v Bow Street Magistrates’ Court and Allison ex parte USA [2000] 2 AC 216) Legal foundations of “cybertrespass”?

10 “tort of cyber-trespass” ???? A method of regulating online interactions which: a. is a general legal norm b. was and is developed by the courts c. is based on civil liability d. recognises online computing systems as property

11 a. is a general legal norm o With so many specific rules, what is generality for ? o The technology is still developing... o... and the courts are always several steps behind it

12 b. was and is developed by the courts o The EU has already covered most of the field o It is not even clear that national Parliaments have a role here... o... much less the courts

13 c. is based on civil liability o The EU assumes that state police and prosecutors are the major movers here o Are individual claimants capable of taking on a more dynamic role?

14 d. recognises online computing systems as property o The current tendency is against o To what problem is this the solution? o The current problems are not about establishing norms but about enforcing them

15 Conclusion o Institutional differences between the US and the EU o A brave initial reaction to the problems posed by the Internet, but its time has past o Thanks but no thanks

Do we need a tort of cyber-trespass? Steve Hedley SLS Cyberlaw 8/9/2005