Chapter 8: Contract vs. statute in internet governance
This chapter is concerned with the following issue: what are the respective roles of contract and statute in governance of the internet and what are the reasons for each role? The chief catalyst for addressing the issue is the extensive reliance upon contract as the principal legal means for governing much of the internet and its virtual worlds. Coupled with this contractual predilection is fairly widespread reluctance to develop statutory measures in the field. How and why such a situation has arisen, and what its exact compass is, are questions worth considering, particularly given the internet’s centrality to social, economic and political life. The importance of the questions is augmented by ongoing controversy over purported abuses of contractual power by the providers of internet-based services (see, for example, Fairfield 2008, de Zwart 2010, Suzor 2010a and Suzor 2010b). Any useful discussion over how such abuses ought to be remedied, or over the respective utility of contract and statute more generally, should be informed by a reasonably accurate picture of the roles that contract and statute currently play. This chapter goes a considerable way to providing that picture.
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