 Craig P Opperman |
 |
A preface
to this book Cyberlaw @ SA: the Internet and the law in South
Africa is indeed a challenge. Irrespective of what this preface
reflects, the Internet explosion and the rapid growth in the 1999 reader's
knowledge will make it appear quaint, simplistic and quite dated
in about 2 years! I sincerely hope so. For this is exactly what the Internet
is about: sweeping change with opportunity and challenge second to none.
And that is why this book could not come at a more opportune time. It
should supercharge that 1999 reader's knowledge and provide the impetus
for a very exciting Internet law practice.
Naturally,
many readers will be very
familiar
with the Internet. On its face, it is nothing more than an amorphous computer
network with terminals and servers randomly scattered and haphazardly
interconnected across the globe.
Technologically,
of course, it's very interesting. Information, whether text, image, audio,
video or other data type, can be accessed or transmitted from anywhere
to anywhere, with the mere click of a mouse button. But that's not where
the Internet's real opportunity lies, particularly not for the lawyer.
Instead, the opportunity flows from the Internet being a social
phenomenon that, according to some, equals the Gutenberg press.
phenomenon that, according to some, equals the Gutenberg press.
Quantifying this
phenomenon, in whatever terms, is impossible today and best left to a
later generation's historians. Suffice it to say, however, we are in the
midst of a revolution and that, from this vantage point, we can only note
and be part of the revolution, not quantify it. But being part of the
revolution is the opportunity, for this revolution is not a single faceted
event. Instead, it is touching every arena of
modern society and, once touched, this society will be forever changed.
modern society and, once touched, this society will be forever changed.
To illustrate,
take the simple example of purchasing an antique map of Africa. Instead
of visiting bookstores in Cape Town's Long Street during restrictive business
hours, the purchase can be accomplished by Internet access to web sites
all over the world. Images of the map and questions/answers can be exchanged
between multiple venues separated by thousands of kilometres at the cost
of a few local phone calls. Then, by using a credit card and courier,
that antique map (at lower cost and from a greater selection) can be delivered
directly to your doorstep, whether you are in Cape Town or Silicon Valley,
California!
Yes, this is a
simple scenario, but it has tremendous implications. In effect, the Internet
is fully enabling the "global
village". In this "village" any individual or organisation can be a vendor or consumer, a publisher or subscriber with scant regard to national laws and boundaries. Merchants, publishers, customers, friends are all just down the digital street, even if they are thousands of physical kilometres away. This brings tremendous commercial, social, moral, fiscal, political and, yes, legal implications. The map
purchase example illustrates what has become known as e-commerce; it implies the availability of free, accurate and easily accessible information; and it carries with it ominous warnings for the dealer in Long Street. Moreover, if the map is bought from a different country, say the Netherlands, what will the tax and foreign exchange implications be? How does Roman Dutch law deal with the transaction? What if the information is false and the map is a fake? What legal recourse is there against a dealer in the Netherlands? What if that free and easily accessible information is not a map, but pornography or slander, or the e-commerce is electronic gambling? How does that intersect with social, moral and religious institutions and norms and how is one to regulate this?
village". In this "village" any individual or organisation can be a vendor or consumer, a publisher or subscriber with scant regard to national laws and boundaries. Merchants, publishers, customers, friends are all just down the digital street, even if they are thousands of physical kilometres away. This brings tremendous commercial, social, moral, fiscal, political and, yes, legal implications. The map
purchase example illustrates what has become known as e-commerce; it implies the availability of free, accurate and easily accessible information; and it carries with it ominous warnings for the dealer in Long Street. Moreover, if the map is bought from a different country, say the Netherlands, what will the tax and foreign exchange implications be? How does Roman Dutch law deal with the transaction? What if the information is false and the map is a fake? What legal recourse is there against a dealer in the Netherlands? What if that free and easily accessible information is not a map, but pornography or slander, or the e-commerce is electronic gambling? How does that intersect with social, moral and religious institutions and norms and how is one to regulate this?
For lawyers, therefore,
this is a marvellous time. Almost every aspect of law is being challenged
and many legal frameworks are inadequate to deal with the Internet. Designing,
building, implementing and modifying the necessary legal guidelines for
the Internet give today's lawyers whether in private practice,
academia or in government a profound "Internet" opportunity. This
book addresses many of the legal issues, of course, and in so doing gives
the reader an insight into these opportunities. But what this book does
not address indeed it cannot, by its very nature is the
speed of change that characterises the Internet. And it is this speed,
coupled with the sweeping nature of the changes, which makes this space
really exciting for the lawyer.
It was only a decade
and a half ago, when today's law firm senior partners' children were in
high school or entering university, that the University of Cape Town's
Engineering Department started its computer lab with three PCs. These
machines, then the cutting edge of technology at the Engineering Department,
were made available only to final year thesis and Masters students. They
were DOS machines, without hard drives, which had to be booted up using
a single 51/4" inch floppy disk. There were no icons, no windows,
no modems, no graphics capabilities, no screen resolution to speak of,
no clip art, no audio, no video and certainly no connection to the Internet.
Five years later, networked computing was just beginning to surface in
South Africa and even in Silicon Valley, California, few used the Internet
for anything but a vehicle for e-mail! Contrast that with 1999 and the
massive changes become apparent.
So, it's the extent
together with the speed of change that creates these exciting opportunities
and challenges for lawyers. In effect, there is less than a decade of
activity to guide in defining legal boundaries for a global village and
an exploding global phenomenon; neither having precedent for dramatic
growth and global reach. In short, today's lawyers have an unparalleled
opportunity and I encourage anyone interested in this legal space to seize
this and rise to the challenge.
Take Silicon Valley,
California, as an example. The large technology law firms (with 300, 400,
500 and more lawyers) each has well over 100 lawyers specialising
in the Internet and related technologies. Even so, there simply are not
enough of these lawyers to go around. More than that, there is probably
no aspect of law untouched or untouchable by the Internet intellectual
property, tax, contract, other commercial, international, sexual harassment,
privacy, constitutional, defamation, criminal and other areas of law are
all obvious and well covered in this book. Even "distant" areas of law,
such as evidence, conveyancing and
matrimonial property law, will be touched by the Internet. And if the Silicon Valley experience is anything to go by, the resulting opportunities (and the challenges) are available to any lawyer willing to embrace this legal space. No one is too old or too young to become a player in Internet law, neither in South Africa nor in Silicon Valley.
matrimonial property law, will be touched by the Internet. And if the Silicon Valley experience is anything to go by, the resulting opportunities (and the challenges) are available to any lawyer willing to embrace this legal space. No one is too old or too young to become a player in Internet law, neither in South Africa nor in Silicon Valley.
With that promise
in mind, allow a final observation, on the Internet's impact on lawyers,
and two requests. Today's law firms, like the map dealer in Long Street,
cannot afford to ignore the Internet. As the Gutenberg press made the
Christian Bible available to many, so the Internet is making vast amounts
of legal information available. Form agreements, standard exception clauses,
legal forms, "how to" guides, and much more are now freely available at
the click of a mouse and without an inconvenient consultation during restrictive
business hours. There is no doubt that the Internet will touch, not just
legal areas, but the practice of law itself and, as with everything it
touches, forever change the way we provide services to our clients. Once
again, it is up to us to rise to this challenge.
And my requests?
The first is not to forget the "have-nots" of our society. The Gutenberg
press was profound
it is credited with jump starting the Renaissance but its books only benefited those with the faculties to read.
Let us not forget that the Internet must be shared far and wide, particularly with those who normally would not have the facilities to access it. Without that sharing, this social event will be a great boon only at the one end of the socio-economic spectrum, and thus further widen the gap between those who have and those who do not.
it is credited with jump starting the Renaissance but its books only benefited those with the faculties to read.
Let us not forget that the Internet must be shared far and wide, particularly with those who normally would not have the facilities to access it. Without that sharing, this social event will be a great boon only at the one end of the socio-economic spectrum, and thus further widen the gap between those who have and those who do not.
The second request
is directed at those who will be tempted to regulate the use of and access
to the Internet, including lawyers. Please don't. Whether you are a government
wanting to curb free speech, a "church" concerned about morals, or a business
afraid of competition, excessive regulation or control over the Internet
will eventually backfire. The Internet and its technology will render
your controls worthless: those you wish to protect will be absolutely
exposed and the businesses you attempt to shelter will be both weak and
so far behind that they will be destroyed. So, please regulate with opportunity,
not fear and prejudice in mind.
With that said,
I can only add the advice from the movie Dead Poet's Society. Carpe
diem! Seize the day! If you do not, this opportunity will blast past
you and, just like this preface, you will be outdated by the end of the
year 2001!
Best of luck to
you all and congratulations to the authors, publishers and contributors
who have made this book happen.
Craig P Opperman
Cooley Godward
LLP
Palo Alto, CA
United States of
America
www.cooley.com
copperman@cooley.com
