LAW SECTION

Abstracts

Session 1. The Challenge of Regulating Convergence (International Aspects)

Wolfgang Kleinwachter, University of Aarhus (Denmark) / NETCOM Institute, Leipzig (Germany), e-mail wolfgang.medienstadt@okay.net
ICANN as a Model for Civil Society's Participation in the Governance of the Global Information Society

ICANN, the global Internet Corporation for Assigned Names and Numbers, will overtake the responsibility for the management of the key resources of the Internet (domain names, addresses, protocols, root server) in November 2000. ICANN is a new global institution which is neither an intergovernmental organisations nor a transnational private industry corporation or a non-governmental membership organisation. It is a private non-for-profit corporation incorporated under Californian law and led by a 19 member "Board of Directors". The Board is composed by a CEO, nine Directors delegated by three Supporting Organisations (representing the private industry) and nine directors, elected by the At-Large-Membership (representing the general public). Governments are not allowed to delegate directors in the Board. The first round of the elections of the nine ALM Directors will take place in October 2000 and will create new experience for the development of a global cyber-democracy. Every netizen with an e-mail address can join ICANN and participate in the ALM Director election. The paper will describe the history and the context of the emergence of ICANN. It discusses the role of governments in the coming global information society and the development of public-private co-regulatory frameworks. Part 2 of the Paper analyzes in detail the present election system for the ICANN .ALM-directors. The options of direct and indirect elections will be discussed as well as the usefulness of the election of an ALM Council. The final part will discuss whether the experiences with ICANN will offer new models for the governance of global issues related to the global information society.

Susan J. Drucker, Hofstra University, Hempstead, New York, and Gary Gumpert, Communication Landscapers, Great Neck, New York, USA. Tel. (1-516) 466-0136, e-mail Ggumpert@ix.netcom.com
Converging Technologies, Converging Regulation, Divergent Approaches

The convergence of technology has led to market convergence and the need for regulations of convergence. New is the fact that information or data is not restricted to a specific medium. When considering regulation of convergent technologies, the specific medium is relegated to the background while functionality is placed in the foreground. We find ourselves asking questions which are less and less mediums specific with regard to regulation: When radio transmissions are transmitted over the Internet, can the broadcasting law apply when transmission is actually over telephone and satellite rather than the use of the electromagnetic spectrum? When newspapers are simultaneously published in print and electronic form, do the laws governing telecommunications media apply or do the press laws of one jurisdiction apply?

Because device becomes a background element rather than a unique medium, it follows that the regulatory institutions of telecommunications, telephony, and broadcasting become interconnected both from a regulatory and a technical standpoint. A new regulatory framework must first account for the nature of the media/medium to be regulated. It is difficult to apply our earlier conception of medium to the Internet. Is the Internet a medium of mass communication? The Internet defies traditional categorization because of its convergent character, that is, in one sense it brings together various media with their own once unique grammar, syntax, and conventions -- the letter, the telegraph, the radio, television, recordings and film, the telephone, facsimile, etc. Multipurpose networks have replaced the single-purpose medium. On the Internet literally every node is both a transmitter and a receiver.

The Internet, i.e. infrastructure is distinguishable from cyberspace, the site of communication. The Internet may be more regulable than cyberspace. Divergent approaches have emerged in response to both cyberspace and the Internet. The earliest phase of exploring regulatory approaches to the Internet was characterized by the claim that government could not regulate cyberspace, that cyberspace was essentially and unavoidably free. But the next phase of conceptualizing regulation, this second generation, according to Harvard Law Professor Lawrence Lessig, sees control of the Internet coming from an alliance of commerce and government, particularly through the regulation of the architecture of software and hardware rather than direct content-based regulation. Regulatory convergence has been addressed by some critics calling for separate regulators for infrastructure and content arguing that regulatory agencies must reflect the fundamental distinction between delivery system and content. However, this view de-emphasizes the fact that convergence blurs all the distinctions between services, all networks will be capable of delivering any service.

This paper will explore the challenge of regulating convergent technologies given the significance of the distinction between the Internet and cyberspace.

Dr. Sandra Braman, Reese Phifer Professor, University of Alabama, Dept. of Telecommunication & Film, Tuscaloosa, PO Box 870152, Tuscaloosa, AL 35487-0152, U.S. Tel. 205/348-8657, fax 205/348-5162, e-mail sandra.braman@mail.ua.edu
Differential Application of Constitutional Law By Type of Information Processing

Since legal problems caused by the convergence of computing and communication technologies first appeared in the US in the 1950s, the legal world has gone through several stages in its reaction to the need to adapt legal systems to new informational conditions: trying to fit new phenomena, products, and processes into existing but no longer appropriate legal and economic
categories; engaging in exhaustive analysis of the application of current law and regulation to a wide variety of new entities and activities; and, now, development of law specifically for today's global information infrastructure. Theorization and conceptualization are particularly important to the current phase of legal development.

Among the most important approaches that has appeared in US law over the course of this period is differential application of constitutional law according to distinctions among types of information processing. The argument that constitutional protections did not extend to all of the stages in the information production chain involved in the creation, distribution, and use of any message but, rather, only to those informational activities specifically mentioned in the US Constitution or Bill of Rights, began to play a powerful role as early as the 1970s. Since that time, the argument has been reinforced and a number of dimensions of difference among types of information processing (and between processed and unprocessed information) have been
identified as of constitutional value. This paper analyzes the development of the principle of distinguishing among types of information processing for constitutional purposes within US law since the 1970s.

While the case examined in depth here is the US, the paper will conclude with an examination of the ways in which the same legal principle is appearing in the international, comparative, and global environments as well. The threats to freedom of speech presented by this approach will be explored, along with the opportunities it enables as well.

Session 2. Panel "Regulation and Self-Regulation of Internet: a View from Russia" — Participants: Professor Yassen N.Zassoursky, Associate Professor Maria Loukina, Senior Lecturer Andrei Raskine, Associate Professor Andrei Richter, Professor Elena Vartanova and Researcher Ivan Zassoursky, School of Journalism, Moscow State University, Mokhovaya 9, 103914 Moscow, Russia. Tel/fax (7-095) 203-2889. E-mail: dean@journ.msu.ru

(abstracts have not been provided)

 Session 3. Legal and regulatory dilemmas faced by national governments in the light of the emerging international mass communication and telecommunications regime

Anita Dey, M.A. Candidate, School of International Service, American University. Postal Address: 3040 Idaho Ave. NW, #431, Washington, DC 20016. U.S.A. Tel. (1-202) 362-7998. E-mail: anitadey@mindspring.com
New Telecom Policy 1999: Implementing Universal Service in India's Liberalizing Market

This paper examines India's New Telecom Policy 1999, Section 6.0 since it places much of the universal service burden on private companies to see if it and the rest of the policy creates a fair and competitive environment in which these companies can fulfill universal service obligations.
The universal service goals in NTP 1999 are voice and low speed data service to uncovered villages by 2002, Internet access to district headquarters 2000, and urban and rural telephone on demand 2000. However, there are no specifics on how licensees should fulfill these obligations.
Also, the burden of the universal service levy placed on private companies, in combination with the license fees, can become prohibitive and restrict market access, contrary to the Free Market model.
Competition is not aided in NTP 1999. The government will reimburse the monopoly-holder, the Department of Telecommunications (DoT), for its licence fees even though it also has access to universal service levy funds. Also, DoT is to be privatized, but NTP 1999 is vague, and it says the DoT will remain dominant in the market, perpetuating the monopoly, and continuing the
violation of the Free Market and Republican Service models.
Therefore, it is concluded that the universal service obligations in NTP 1999 are rhetorical. The independent regulator, the Telecommunications Regulatory Authority of India, could help reach a compromise between the Free Market and the Republican Public Service models, but it is also
weakened in NTP 1999.

Kyu Ho Youm, M.S.L., Ph.D., Professor of Media Law, Cronkite School of Journalism and Telecommunication, Arizona State University, Box 871305, Tempe, AZ 85287-1305 Tel: (480) 965-5011; Fax: (480) 965-7041, e-mail youm@asu.edu
Transformation of Korean Law and Society: A Case of Press Freedom

The South Korean press typifies an unending evolution from an authoritarian system to an increasingly libertarian entity in a more democratic body politic. The formative process of media law in Korea illustrates the Koreans' ongoing search for a balancing paradigm for press freedom amidst the recent sociopolitical and structural transformation of the Korean news media.

The media environment, especially the status of press freedom, has undergone rapid changes. The press and the citizenry were united by an abhorrence of governmental attempts to muzzle their voice during the military dictatorships of Park Chung Hee (1961-79) and Chun Doo Hwan (1980-87). But the press and the public now have their own divergent interests to pursue, and they check and balance each other. This affects the judicial perspective on the relationship between the press and individual citizens in Korea.

In the past, Korean courts overlooked violations of personal interest by the press because they gave credit to the media for expanding the citizens' freedom and rights by standing up to the state authority. As the press milieu has changed and the citizens' consciousness of their rights has risen since the 1987 democratization movement, however, judges have started to take a fresh approach to the litigational explosion involving the press. It is almost a clichй that as "[t]imes change, perceptions of freedom of the press change."

One noteworthy development in the now enhanced press freedom in Korea is an increasing number of lawsuits against the media. Most significant is a growing diversity in the causes of action against the media. Not only are libel and privacy issues contended, but also access to the press and freedom of information (FOI) are asserted in media litigation. Meanwhile, court decisions in press law cases have established a set of new rules, clarified previously unsettled issues, and explored different standards for balancing press freedom with other societal interests.

In connection with the different status of the Korean press vis-a-vis the State and the public in Korea, the classical libertarian concept of press freedom centering on a sharp dichotomy between the press and the government has become considerably passe. At present, Koreans are closer to realizing a 1990 proposition that "freedom of the press has been traditionally related to freedom from governmental restraints; this passive notion should now be changed to the positive freedom for democratizing Korea." Case in point: The gradual but firm establishment of various institutional mechanisms based on an assumption that public government in the sunshine is always better.

In the meantime, the emergence of new media technologies such as the Internet challenges the media and the government to reconsider their conventional wisdom on mass communications law. "[T]he new media, because of their far-reaching impact on public consciousness and their ever-growing economic importance, represent a critical terrain for both political democratization and future Korean prosperity in a globalizing world."

The new communication technologies have a tremendous impact on the "old" media and on the alternative media as well in Korea. As the popularity of personal computer communication grows among those outside the mainstream media, the "underprivileged" people who were denied access to the established media have quickly found the PC network "particularly useful" in publicizing their political causes and in posting information on public electronic bulletin boards.

Given that "the extent to which a society is open and democratic can be measured in great part by the degree to which the press in that society is independent and vigorous," an in-depth look into the evolving Korean press law demonstrates how Korean society has transformed from development dictatorship to civilian democracy over the past decade. The primary focus of this paper is on mass communications law as a crucial moving force in the changing Korean society. But it should be emphasized that "[f]or a visitor from another planet to try to understand our society from reading our constitutions and laws would be almost as misleading as his attempting to do the same from monitoring our network television fare."

This paper thus goes beyond the constitutional and statutory language on press freedom by analyzing major judicial interpretations. It examines the political, social and cultural interface among the press, its government and the public through law because "all press systems reflect the values of the political and economic systems of the nations within which they operate."

Hinca Pandjaitan, Director, the Indonesian Media Law and Policy Center, Jl. Tanjung 50, Menteng, Jakarta, 10350, Indonesia. Tel. (62-21) 392-3030, fax (62-21) 392-2255. E-mail hinca@internews.ot.id
The Impact of the Termination of the Department of Information for the Regulation of Broadcasting Media in Indonesia

The presidential decree No 136 Year 1999 on the Positions, Tasks, Organizational Structures and Work Procedures of Departments dated November 10, 2000 and the presidential decree No 355/M Year 1999 on the Formation of Cabinet 1999 - 2004 indicated that the Department of Information was no longer needed. The staff and other employees of ex- Department of Information, numbering 15,000 people, were delegated to local governments and those who were attached to the central government were transferred to the National Communication and Information Bureau (BIKN) as regulated by the presidential decree No 153 Year 1999 dated on December 7, 1999 which was then revised by the presidential decree No 7 Year 2000 dated on January 19, 2000.

In the case of the mass media (print media), according to the new press law No 40 Year 1999 the Department of Information is no longer needed and the existence of the Press Council is considered adequate. But the problem is related to the electronic media that has been regulated in the Law No 24 Year 1997 because it is stated in the law that the one responsible for broadcasting sector is the Minister of Information. Therefore it is very obvious that the existence of electronic broadcasting media is uncontrolled without any obvious binding rules of the game.

The presidential decree No 136 Year 1999 indicated that broadcasting sector is included in the Department of Communication. Furthermore, the decree of the Minister of Communication dated on January 26, 2000 stipulated the existence of the Directorate for Broadcasting under the Minister of Communication. The Broadcasting society in Indonesia refused the existence the Directorate for Broadcasting. What's next? There is no definite answer but one thing is for sure that the termination of the Department of Information has caused a problem to the broadcasting media in Indonesia.

David Goldberg, School of Law, University of Glasgow, G12 8QQ Scotland, UK. Tel: + (0) 141 330 5538, fax: +(0)141 330 5140, email: d.goldberg@law.gla.ac.uk
Media, independence and the international community: Bosnia, Kosova and East Timor

The standard liberal paradigm framing the relationship between legal/regulatory structures and the media places a high value on the notion of "independence" of the latter from the former. This policy translates into international standards and the rhetoric of many states. However, a
tendency can be noted whereby the so-called "international community" (i.e., states and inter-governmental organisations) intervenes in order to promote the (re)-creation of independent media in post-conflict situations.
The paper addresses three such situations - Bosni-Herzogovina; Kosova; and East Timor, building on work already presented at a previous IAMCR conference (Leipzig 1999). Describing and analysing these instances will help to build a picture of a developing, hybrid form of media regulation which, arguably, calls into question the rhetoric and the reality of the notion of normative independence. Ultimately, the issue is, is the scope and intensity of international community intrusion into media affairs a justifiable matter?

Session 4. The Challenge of Regulating Convergence (National Cases)

Kyu Ho Youm, M.S.L., Ph.D., Professor of Media Law, Cronkite School of Journalism and Telecommunication, Arizona State University, Box 871305, Tempe, AZ 85287-1305 Tel: (480) 965-5011; Fax: (480) 965-7041, e-mail youm@asu.edu
Internet Libel in U.S. Law: Teaching an Old Dog New Tricks

The First Amendment and the Internet need each other more than ever before. It is indisputable that no technological advance in communications during the 20th century offers as much opportunity for robust, uninhibited self-expression as the free-wheeling Internet. The crucial question, however, is what kind of jurisprudential paradigms that courts and Congress in the United States have to apply to the Internet in balancing various conflicting interests. With the Internet fast posing fresh challenges, will the same old rules prove sufficiently adequate to the new communication technology epitomized by the Internet? In other words, should the new media technology be squeezed into the existing old legal rules or, if not, should the law adapt to the technology sooner or later? This is particularly the case with the jurisdictional questions and the applicable standards of liability in libel law.

While Congress and courts in the United States are usually hesitant in adjusting the traditional remedies of modern communication technologies, it is refreshing that Congress has made a serious, timely effort to deal with an important facet of libel law in the context of the Internet. The Communications Decency Act, Section 230, of 1996 states in pertinent part: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. American courts have started to interpret this section in drawing the liability standards for cyberspace libel during the past four years.

This paper aims to examine the U.S. legislative and judicial approach to the Internet libel law over the years. More specifically, the paper focuses on three research questions: (1) How did courts adjudicate libel litigation during prior to CDA?; (2) What was the raison d’etre behind Congress’s passage of CDA?; and (3) what has been the judicial interpretation of CDA? The primary objective of this paper is to provide an up-to-date analysis of the U.S. libel law in cyberspace for those with a sustained interest in the topic as a fascinating case study.

 George Minnigh, School of Journalism and Mass Communication, University of Colorado at Boulder and Interdisciplinary Telecommunications Program, University of Colorado at Boulder, Campus Box 287, Boulder, CO 80309, U.S.A. Tel. 1-303-786-1070; Fax: 1-303-492-0969, E-mail: minnigh@colorado.edu, minnigh@icsr.org
Emerging Communication Technologies and Analogical Reasoning in First Amendment Jurisprudence: A Case Study: Is Encryption “Source Code” Speech?

For years in the United States (US), cryptographic technology, a crucial tool of military operations and espionage, was regulated as a munition. In fact, until very recently, cryptography, the art or science of “secret writing,” was of almost exclusive interest to such secretive government agencies as the National Security Agency, Central Intelligence Agency and Federal Bureau of Investigation. Developments in information and communication technologies over the past several years, however, have made encryption a vital concern for mainstream society. To be sure, electronic commerce depends upon encryption software, a crucial technology that provides security and privacy for electronically mediated communications and networked databases. According to a host of critics, the US government’s regulation of encryption technology not only injures electronic commerce, but also violates fundamental political rights. Consequently, a widespread, international controversy has erupted.

A particular set of First Amendment challenges has become a salient component of an increasingly international public policy debate over the US’s regulatory scheme for encryption. That specific moments in US jurisprudence should attract worldwide recognition is a perfect example of the increasingly prominent nexus between the laws of sovereign nations and supranational law. The attention generated by the rulings in these First Amendment cases is not surprising considering their profound implications for future jurisprudence, and by extension, public policy making.

US federal courts have delivered contradictory rulings in very similar cases, preventing a resolution to the public policy debate over whether the regulations in question violate the legally protected rights of citizens. This paper analyzes how US attorneys and judges are defining key terms, (i.e., speech, expression, language, function, conduct, software, source code, object code). Through a close, comparative analysis of the language and analogical reasoning employed by the courts, semantic inconsistencies and weaknesses become obvious. The ramifications of this approach to legal decision making are clear and significant. Until the US federal courts rule conclusively on whether encryption “source code” is sufficiently expressive to merit heightened First Amendment protection, a public policy decision on regulating encryption will probably not be based exclusively upon the courts’ rulings in relevant cases. This paper examines some important implications of ad hoc decision making in US courts for national security, electronic commerce, international relations, and political rights, in light of developments in information and communication technologies.

Christian Kaschuba, Doctoral Candidate, University of Washington, School of Communications, Box 353740, Seattle, WA 98195-3740, USA Tel. (206) 543 – 2660, E-mail: kaschuba@u.washington.edu
Digital Advertising in German Sports Broadcasting: A Discussion of the Compatibility with German Media Law and Broader Implications

The commercialization of sports broadcasting in Western Europe has been widely documented (e.g., Barnett, 1990; Bellamy, 1993; Maguire, 1991; Whannel, 1992; Williams, 1994). Televised sport is arguably the most important component in the expansive, global marketing mix of multinational advertisers and vertically integrated media conglomerates. American football's Super Bowl is the premier example of a "corporate sport" event (McKay and Miller, 1991). The television broadcast of the Super Bowl has a "commercial infrastructure" (Real, 1998), seamlessly blending game coverage with promotion efforts by both advertisers and the television network covering the game.

A brand new phenomenon in the commercialization of television broadcasting is the ability to digitally insert advertising into selected segments of programming. This poses a new and very interesting set of questions, which are addressed in this paper. Specifically, this study examines the practice of inserting digital advertising into the Super Bowl coverage on the German television station SAT.1. Traditionally, media law in Germany (the so-called Rundfunkstaatsvertrag) requires a clear separation between commercials and editorial content (§ 7 Abs. 4). Hence, this paper analyzes the compatibility of digital advertising with these legal mandates, situating the discussion within a broader cultural and economic context of German broadcasting.

After several years of relative obscurity on a German pay-TV channel, in 1999 the terrestrial, commercial station SAT.1 began broadcasting the Super Bowl free-of-charge. A content analysis of the 1999 and 2000 Super Bowl coverage on SAT.1 reveals - in addition to the conventional use of traditional commercials - a frequent use of digital advertising. The author argues that this practice constitutes a violation of existing media law in Germany. The following discussion attempts to shed some light on the role the local broadcaster (SAT.1), the host broadcaster providing the international signal (FOX and ABC, respectively), and the digital advertiser play in this controversial form of advertising. Further, it is suggested to critically examine the digital manipulation of programming when broadcasting signals (like the Super Bowl broadcast) are bought and sold in the global media marketplace with no universal guidelines for this new practice.

The study concludes that digital advertising contributes significantly to an already blurred line between editorial content and elements of promotion in German sports broadcasting. The author calls for a stricter enforcement of existing laws and for regulatory initiatives addressing digital advertising on the European Union level.

NGU, Teck-Hua, Ph.D., Senior Lecturer, Faculty of Mass Communication, Mara University of Technology, 40450 Shah Alam, Malaysia. E-mail: vicngu@tm.net.my
Legislation for the Multimedia Super Corridor: A Case Study of the Malaysian Cyberlaws

Since 1996, the Malaysian government has taken initiatives to develop the Multimedia Super Corridor (MSC) -– a 15 by 50 kilometers stretch of land south of the capital. To encourage international investors to invest in the MSC, the government has guaranteed that it would enact cyberlaws to protect the investors’ intellectual property rights. To date, five cyberlaws have been enacted. They are as follows:

The Digital Signature Act 1997,

The Copyright (Amendment) Act 1997,

The Computer Crimes Act 1997,

The Telemedicine Act 1997, and

The Communications and Multimedia Act 1998.

These cyberlaws are also aimed at facilitating the operations of the flagship applications of the MSC, i.e., the electronic government; smart card; smart schools; telemedicine; R&D cluster; worldwide manufacturing webs; and transfrontier marketing.

This paper would examine in detail all of the above cyberlaws and their implications for the MSC investors as well as that of the consumers.