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Imagereal Capture Freedom of Speech in Cyberspace: Why and How it should be Protected by Mike Godwin, Cyber Rights: Defending Free Speech in the Digital Age, Times Books, New York, 1998, xviii pp, 305pp, notes 307-317 pp, index 319-333 pp. SUS~~Barton BAJLLB Student, TC Beirne School of Law, The University of Queensland. In Qber Rights: Defending Free Speech in the Digital Age, Mike Godwin analyses how the legal system applies to the internet, a ubiquitous void that is commonly perceived as a 'law free zone'.' Essentially advocating freedom of communication on the Net while alleviating fears about its social consequences, he shows how the operation of defamation and intellectual property laws 'play out against the free speech framework of the Net,'* deferring to the First Amendment to the US Constitution as a means by which to protect this right."hat results is an argument for, and understanding of, individual empowerment in cyberspace that flowers from a sense of community and democracy, fusing social consensus about the benefits of this medium that outweigh the negative speculations currently surrounding it. The first three chapters are broad and general in scope, setting up an explanatory framework within which to interpret the specific case-examples provided in the following chapters. The first chapter explains how best to respond to the social and legal issues that arise from the interaction between the Net and society. This is achieved by explaining the manner in which the First Amendment safeguards, or should safeguard, freedom of expression in cyberspace. Metaphorically speaking, Godwin pictorially represents the medium as a territory within which power exists, such power generating the following legal and social issues: (I) Whether the First Amendment that affords protection to traditional modes of written and spoken discourse (such as the hierarchically-structured institution of the press and radio) applies also to the Net, a novel and equalizing medium that is underscored by an absence of hierarchical dependency amongst its users (i.e. anyone and everyone can disseminate and exchange information irrespective of their social and economic status). (2) What kinds of laws and institutions are required to sustain the placement and existence of virtual communities that, similar to geographical communities, are ultimately contingent upon a tolerance for, and so protection of, free speech and privacy? (3) At what point must the balance be struck between an individual's right to free speech (including the right to publish hate speech and on-line threats on the net) and the common welfare of society? Does the publication of such information attract more danger and so demand more protection than when it appears in traditional format such as books or magazines? (4) How best can these characteristics of 'old' and 'new' media be reconciled in order to effectively implement the right to freedom of communication on the Net? A unifying concept that assembles each of these four main issues into a cohesive whole 1 Peach S, 'Liability for Defamation on Online' (1996) 4 Artlines 6 at 6. 2 Godwin M, Cyber right^: Defencliizg Free Speech irz the Digitul Age, Times Books, New York, 1998 at 3. 3 Specific to Australia, the High Court's recognition of the defence of implied freedom of political communication, as extracted from the system of representative government, is yet to be developed and tested to its full potential - see Aristralian Cupitul Television Pry Ltd v Commorzweulth of A~ustraliu(1992) 177 CLR 106. Thus, the US equivalent in the First Amendment raises questions as to how far this concept of 'political discussion' extends into the seamless void of cyberspace. Book Reviews 359 is that free speech on the Net deserves special protection by virtue of the Constitution. According to Godwin, the right to say what one thinks without fear of unreasonable censorship is as essential to the 'netizen' in cyberspace as it is to the 'citizen' in the physical environment. In both 'worlds' there is a closeness in connection, or at least a contingent relationship between the right to free speech and the welfare of a society. What follows in chapter 2 is a linkage between the social characteristics of these two communities. The purpose is to demonstrate the parasitic nature of virtual communities, such that they are mere extensions of physical communities to the extent that both are meshed together by a respect for freedom of expression and a desire for intimate connection with other human beings. A series of 'memes' (an idea that travels from person to person) that perpetuate the lawless, immoral and 'unreal' (mis)representations of the Net, and so that suppress its line of symmetry with the real world, are proposed and countered. It is disappointing that Godwin did not authoritatively support his findings when arguing against the negative connotations of the Net, instead choosing to make sweeping assertions that contain traces of didacticism. Nonetheless, this 'Internet as threat'4 meme follows through to chapter 3, but this time with reference to its generation by the government and press who attempt to elevate fears about the use of freedom of expression in cyberspace. Godwin argues that these institutions fear a loss of control over the mass media due to the ability of the ordinary citizen to reach thousands of people worldwide from their own PC. As a result, politicians and journalists coalesce the concept of cyberspace with concepts of bomb-making information, hackers, and child pornography in order to pilfer some of that power reposed in the layman, ultimately causing an opposition to its use, and so also an opposition to its need for the protection of free speech. In these initial three chapters, the reader becomes well-acquainted with the misrepresentations attached to the Net by the general public, media and Congress. Similar to a step-by-step-how-to guide, they provide the reader with prongs of attack to defend such fears. This is achieved by virtue of the crusade for protecting individual rights under the First Amendment, which is conducive of strengthening other's rights, and which leads to the creation of communities and an enhancement of the nation in general. In chapters 4 to 10, Godwin transcends these positive aspects of free speech to identify its problems, such as privacy, copyright, cyberporn and on-line libel, hailing the First Amendment as a conduit to resolving them, and referring to cases as real-life illustrations of these issues. Again, Godwin leans toward an argument that favours the protection of free speech on the Net, blindly omitting those arguments that counter it, and so tipping the scales towards one end of the spectrum with immense partiality. For example, he proposes that the best remedy available to someone who has been defamed on the Net is self-help, such as 'attacking' whoever published the defamatory statements, or merely tolerating the offensive expressions. But this approach ignores the right to monetary compensation for damage to reputation and hurt to feelings, particularly when the extent of the publication, its seriousness and economic loss warrant such a remedy. Further, 'flaming' one's attackers is merely tautological in the sense that having been defamed, one is prone to do the same back, and so the cycle of defamation between both parties continues ad infiniturn. A damaged reputation without a readily available remedy, irrespective of the medium through which it is effected, is surely contrary to the purpose of defamation law.5 Nevertheless, the final chapter latches onto this argument for tolerance of those who 4 Note 2 at 63. 5 See Defumuriorz Act 1889 (Qld), ss 6 and 7. 360 Book Reviews offend us, concluding that the pluralistic characteristics of the Net make it impossible to ever be united by shared opinions and experiences. Thus: Empowering people to speak freely on the Net in all the ways that we have said they can speak freely in other media, and with all the privacy that we've allowed them in other media, is a necessary condition for all the benefits that the online world has to offer us." The book is useful reading for judges, politicians, academics and law-students alike who must come to terms about the social and legal issues emerging from this new technology. Although specific to the American context, the prevalence and generality of issues that arise from the Net and related case-law make them just as applicable to Australia as elsewhere. The use of active voice, non-legalese language, sub-headings and personal renditions are successfully effected to maintain interest through what can be otherwise tedious, and complex subject-matters. At times this intimate and informal style works to Godwin's disadvantage, evoking a didactic and moralising tone. Even the detailed case- studies that are paradigmatic of the right to freedom of expression portray one-sidedness. But perhaps this degree of subjectivity can be attributed to the nature of freedom of communication in cyberspace that is ultimately seamless, limitless and borderless in content. Overall, then, the book is a refreshingly different style of analysis and discussion, making it a tirst choice over other literature of its type that apply in a mechanical manner complex definitions, hypothetical examples and explanation^.^ 6 Note 2 at 298. 7 Cavazos E & Morin G, Cyberspuce and the Law - Your Rights and Duties in the On-line World, MlT Press, Cambridge, 1994. .
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