I recently bought the third edition of Judge David Harvey’s text on New Zealand Internet law. It might be thought that such a text is too narrow in the context of an international office such as the ICANN ombudsman, but in fact there is much covered which is international in scope. Without wanting to say that New Zealand is a pioneer in the use of the Internet, it is fair to say that New Zealanders have been heavily involved in Internet issues from very early days and contributed very substantially to development of policy and law in this area. Judge Harvey lectures at the University of Auckland Law School on the topic of IT law, no doubt something of a contrast to the diet of crime which he oversees at the Manukau District Court in South Auckland. He developed the text of the purpose of this course, and has now reached the third edition. He somewhat modestly says that the text covers selected issues, although my study of it shows a somewhat more comprehensive cover, both of immense value to New Zealand lawyers and to international practitioners as well.
He begins by discussing online information and research together with a discussion of evaluation of the value of online materials, issues in relation to freedom of access to legal resources and importantly discusses how to authenticate and evaluate online material. He then goes on to consider the thorny question of jurisdiction, with a useful analysis of the international jurisprudence and the approach taken by United States, Canadian and New Zealand courts.
Perhaps of direct relevance to me this is discussion of Internet governance and the role of ICANN. I suspect due to limitations of space, the role of the ombudsman has only a cursory mention in a diagram. In addition the unique multi-stakeholder structure supporting ICANN is only briefly discussed. In my view the structure would be a valuable addition to the first part where he discusses Internet governance, because the evolving structure of ICANN and supporting bodies is a real live demonstration of a working model of Internet governance. And perhaps because of further limitations of space, institutions such as the IGF –( Internet Governance Forum) and the role of the Internet Society (ISOC) and the ITU are not covered in any detail at all. This is a pity because the opening part of the chapter has a fascinating discussion of the theoretical approaches and the diverse political opinions ranging from the libertarian to the strict control theories. Application of those theories to what is happening in all of the Internet governance bodies would be, I suspect, the subject of a text on its own merits.
Judge Harvey discusses criminal law in the context of computer crime, mostly with a New Zealand emphasis but of course the issues are again international in concept. He does discuss some of the international law, which is unavoidable in the subject. Again, I suspect due to lack of space, issues such as the use of bot nets and phishing, which have complex jurisdictional problems in enforcement, are not discussed. Those forms of international computer crime do reach New Zealand, but are very difficult to prosecute because the offenders are seldom in New Zealand. This is no different from most other countries in the world, where such offending occurs, because of the difficulties of penetrating the anonymity under which these crimes are committed.
A very useful chapter discusses online business relationships. Some might say that the existing law of contract and agency substantially covers this area, but Judge Harvey identifies some important international conventions such as The United Nations Convention on the International Sale of Goods and the UNCITRAL Model Law on Electronic Commerce and the important influence of the United States legal developments on formation of contracts through issues such as shrinkwrap. This chapter is followed by an equally useful discussion of copyright, perhaps being brought home to New Zealand with the attempted extradition of Kim Dotcom, presently a resident of New Zealand until the FBI persuade a New Zealand judge otherwise.
In this discussion of the text I have omitted some of the other useful chapters, not because they are less important, but are perhaps more relevant to indigenous New Zealand law. The analysis and discussion would be of interest to any international IT lawyer however.
The scholarship and analysis on this text are a little unusual, in that he takes the trouble to consider and describe the theory behind the legal principles. Many texts leave this for more academic studies, which makes his discussion valuable to the academic, as well as the practitioner. This significantly adds value to the discussion, particularly in a field where the whole concept of the Internet is still only under 20 years old, and the application of the enormous body of older jurisdiction to such a radical change in the way in which we deliver information does require such an analysis. Just as an example, any lawyer would immediately understand a concept such as offer and acceptance, but unless they are particularly adept at IT skills, may not have any concept of the way in which delivery of an offer or acceptance can be radically changed through use of the Internet.
The text may be bought from LexisNexis in New Zealand and overseas but not through Amazon and because the publishers are not as up to date as their author, it cannot be bought as an e-book, which is a pity. But even in book form I recommend this text to any IT lawyer.