Playing catch up?

by Jon_B in ,

Is the law keeping up with social media and web 2.0 (or even web 1.0)?

I have been looking recently at the issue of companies using their competitors' names in meta tags to divert traffic to their site (see the Search Engine Watch site summary of meta tag lawsuits).

In England we have a situation where the Courts still haven't clarified the legal position much beyond the Court of Appeal decision in Reed v Reed. It seems unlikely that they ever will given that Google no longer pays attention to keywords meta tags and the focus has moved on to litigation about Google Adwords.

This isn't an isolated example; even the position on liability of hyperlinkers for breach of copyright isn't particularly clear.

The E-Commerce Directive deliberately fails to cover legal liability for hyperlinks. In theory, the European Commission are meant to review the directive every 2 years from 2003 with particular reference to whether additional protection for hyperlinkers and/or a "takedown" notice procedure is appropriate, but as yet this hasn't led to any real clarification.

Effectively in the UK we are left relying on various arguments about whether a hyperlink can be classified as an instrument for making of an infringing copy (potentially giving rise to liability under the Copyright, Designs and Patents Act 1988).

In the meantime, the way that hyperlinks are used is changing (think short links tweeted and retweeted on Twitter with no anchor text and possibly not even a description of who or what is linked to).

A common law system should, in theory, be able to adapt to changes like this as quickly as new cases and precedent can be put place by the Courts, but the reality is that many of these areas are governed by domestic and/or European legislation which can (at most) only be interpreted by the Courts and not amended.

On top of this we have the government's attempts to force through the Digital Economy Bill before the end of the current Parliament to implement various controversial proposals such as disconnection on suspicion of copyright infringement (widely condemned by the Open Rights Group and others).

All of this makes me wonder whether it is actually possible for legislation to keep pace with the development of the Internet or whether the law makers are doomed to playing catch up.

What do you think? Is the current system flexible and adaptable enough to cope… or in an ideal world should we be thinking about changing or even replacing it?