Monday, January 26, 2009

Law not keeping up with internet

In an example of how law isn't keeping pace with internet developments, last week The Age published an article, Problems with courts ordering service by Facebook, which considered the potential clash between an ACT Supreme court ruling and the terms of the US social network.

While the court ordered that a default judgement could be served on defendants by notification on Facebook, the terms of the social network state that "the Service and the Site are available for your personal non-commercial use only."

The Age article, by Nick Abrahams, a Sydney-based lawyer rapidly building his profile as an internet-age expert, stated that,
It seems unlikely that the service of default judgments in relation to a mortgage default could be regarded as "personal non-commercial use".

So we have a curious situation where on one view, an Australian court has given a judgment which may have the effect of causing an Australian entity to breach an agreement between the Australian entity and Facebook, Inc. To complicate matters further, the agreement is governed by the laws of the US State of Delaware.

It is possible that if it was put on notice of another such application, Facebook, Inc may seek leave to intervene in the proceedings and object to substituted service orders being made, on the basis that they would breach its terms of use.

On top of the issue above, I wonder if a defendant on whom a notice was served via Facebook could then appeal or counter-sue on the basis that the notice was served illegally, based on the terms of use of the site.

This raises a number of interesting questions around official commercial and government Web 2.0 services. Some allow commercial use, some only allow non-commercial use and some restrict usage to personal and non-commercia.

The ATO has a Facebook group for the e-Tax application. Does this fit within the 'personal non-commercial use' terms of use of the social network?

What about companies using Facebook groups to aid in selling product - commercial use?

How do laws in Australia and internationally need to change to better suit the realities of the modern world? (a question I am sure many lawyers, judges and policy makers contend with)

Or should we, as we do with most currencies, simply ignore the lack of legal underpinning?

National currencies began on the gold standard - where the government (or a bank) held $1 worth of gold for every dollar bill printed. Now these dollars 'float freely' against other currencies, supported only by a government promise.

Legal terms of use restrict how certain services are used, if these are ignored (or not tested legally), and other types of use is accepted, what underpins our legal system?

I am neither a lawyer nor a fish (read the article), but foresee interesting legal times ahead.

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