Courts, umpires and net calls

Computer law has been a recognised subject in the teaching of law for some time, but has not succeeded in capturing the imagination of the general legal community or academic lawyers. That is, at first sight, surprising, for there is no shortage of tricky problems posed by the application of electronic technology to the concepts and practices of legal life. How can the law of contract, which has developed primarily on the back of an exchange of documents, now deal with exchanges of electronic impulses? How should the law of copyright, again developed originally to deal with the written word, be changed so as to encompass the intellectual activity that finds expression in the writing of computer programs?

Despite the range of potential challenges offered by computer law, most lawyers in Britain remain underwhelmed by it all. One reason for this may be very practical. Busy lawyers do not have time to speculate on what the law might be or should be and, until computers actually impinge on their professional work, they will postpone the intellectual effort needed to come to terms with new concepts.

By contrast, hard-nosed practitioners have for some time now accepted the need to understand the revolution in juridical thinking presented by European law, precisely because this does affect the way deals are done and claims are settled. Of course, the tendency to confront change by sticking your head in the sand is encouraged by the traditional pragmatism of English law. So, for example, we still do not know for sure whether software is "goods" for the purposes of the Sale of Goods legislation, or whether the new regime for product liability brought in by the Consumer Protection Act 1987 applies to computer programs.

Another consideration is that the state of legal uncertainty acts as a powerful deterrent to litigation. Lawyers do not prosper by encouraging their clients to make legal history - so the decisive test cases awaited so eagerly by the academic community tend to be just as assiduously avoided by the practitioners. In criminal law, of course, the control of litigation is not so securely in the hands of professionals, and it is hardly surprising that it is in this area, and also that of intellectual property law that most legal development, measured in terms of legislation and judge-made law, has actually taken place.

The consequence of this tendency to marginalise the subject is that the standard of legal debate within the range of issues covered by the loose term "computer law" remains disappointingly low. With the notable exception of a few distinguished commentators, legal writing in this area too often veers between the Scylla of highly speculative accounts on how the law should and could change, and the Charybdis of impenetrable discourse between technicians, who frequently appear more attracted by the technology itself than by the legal issues it engenders. Public law issues, apart from data protection, tend to be underemphasised, except in work emanating from the United States, where the First Amendment focuses legal minds on the implications of free flow of information.

The three books here each approach the subject of computer law from different angles. There is an introductory account of legal issues written by Americans for Americans; a collection of specialist essays written mainly from a European point of view, and an overview by two Scottish authors that is predominantly British in both its examples and analysis.

The collection of essays, Computers and Law, contains some interesting pieces. There is a thought-provoking paper by Philip Leith, who makes the important point that a lot of real law is about rhetoric and not rules, and thus untouched by what computers can do. The account of the evidential problems posed by the computer within English law by Michael Hirst does not break new ground but clearly summarises the many difficult issues involved. As he perceptively comments, since the English judge is an umpire rather than an investigator it is not surprising that English law has the strictest rules (which have blocked any easy acceptance of computer-generated evidence) about the conduct of the contests that take place in court. All in all, however, this collection is a very mixed bag. Some of the contributions are impossibly esoteric (Norwegian law of evidence); others demand a level of technical competency that place them beyond the reach (and interest) of the general reader. Too many are written in an English that cries out for sub-editing. The book lacks an adequate index and any indication of who the authors are and what qualifications they have to express opinions on the different topics.

The American offering, Cyberspace and the Law, is in some ways the most original and modern of the three. It sets out to guide the non-lawyer through some of the legal problems likely to be encountered while using the Internet and other forms of computer-driven communications systems. What makes it different from the usual "computers-and-law" offering is that its objective is to explain legal issues to those who are the active users of the technology, rather than their advisers. So the reader will find explained in simple words the (American) legal dimensions of using email to transmit pornographic material, and of using bulletin boards as electronic marketplaces. Information is given on the application of general legal principles in the areas of copyright and fraud, and an appendix has up-to-date extracts from statutory and other materials from the US.

As might be expected, the book itself is to be regularly updated via the Internet. It is written in an engagingly enthusiastic and upbeat style by authors eager to pass on their knowledge for the use of others. It is manifestly a young person's book - and none the worse for that.

Law on the Electronic Frontier is also, in its way, a popularising work, though its authors set their sights somewhat higher. Ian Lloyd and Moira Simpson are academics from Strathclyde University's Centre for Law Computers and Technology, and their aim is to describe the interface between law and technology by studying problems in five key areas: crime, individual rights, data protection, intellectual property and liability.

This approach and choice of subjects represents a fairly well-trodden path in writings about computers and law. The difference here is that the authors attempt to capture the interest of the non-lawyer, by combining an examination of standard legal issues with a pacey commentary that is positively journalistic rather than scholarly in tone. This works sometimes, and when it does it certainly enlivens the usually sober world of measured analysis where lawyers are habitually found. But overall there is too much discussion of what is merely colourful and sensational. We do not really need, for example, the detailed descriptions of hackers and their arcane skills, and the analogy between the information frontier and the Wild West frontier (which, we are told, provides the theme for the work) begins to pall after a few pages. On the whole, legal academics should leave journalism to the professionals.

That said, however, there is much to commend in the work, which does a good job in giving an overview of legal problems. The authors rightly draw attention to the contributions made by Scottish lawyers and legal institutions in the development of computer law, and are not shy in arguing that the flexibility of Scottish criminal law, in particular, could offer significant advantages in combating computer crime.

Brian Napier is a practising barrister and Digital professor of information technology law, Queen Mary and Westfield College, University of London.