[In the next few messages we will focus not on the specific rules applicable to conduct in cyberspace, but on the processes through which disputes about that conduct might get resolved. We have asked the leading expert on this topic, Prof. Ethan Katsh of the University of Massachusetts-Amherst, to be our "guest lecturer" for this portion of the course.]
What is happening with disputes in cyberspace? Cyberspace may be a creative environment, an informative environment, perhaps even a lucrative environment. It is not, however, always a harmonious environment. This should not be surprising. Information is moving at great speeds, it is hard to control the movement of information, it is hard to verify the accuracy of information, it is hard to be sure with whom you are communicating. Change occurs rapidly and information both acquires value quickly and loses value quickly, and while relationships are easy to form in cyberspace, they may also fall apart quickly.
When cyberspace is not a harmonious place, what happens when people encounter problems? Consider what may well be the most common conflict online. People in a newsgroup disagree with each other. They hurl insults at each other and engage in "flaming." In the physical world, insults and arguments do not often lead to court action. In cyberspace, the level of screaming may be high but the level of suing about flaming is quite low.
Why aren't the courts overwhelmed with claims of libel and slander arising out of all the name calling and accusations on the Net? Seeking legal redress is obviously costly. A second factor, however, is that informal ADR techniques are actually being employed to deal with many conflicts and to give some redress to the injured. The moderator, list owner, or other subscribers may intervene in a manner similar to a mediator. Group pressure and group involvement are powerful forces in a forum that is public and where reputations are of concern. In a potential libel dispute, for example, falsehood and accusation can spread fast but rebuttals are also possible. So while some may deal with flaming by leaving the newsgroup altogether, others may find that the flaming subsides and some resolution acceptable to the parties finds its way to the table.
It should not be surprising that the ADR model is employed often, although perhaps unknowingly, on the Net. After all, the Net is a place built on communication. Groups form for the purpose of communicating, and tools are continuously refined to enhance group communication.
If someone online calls you a liar, for example, you may have opportunities to respond that are not available with television or newspapers. The win/lose adversary model is not all that attractive if there is not a great deal to be won, or if winning costs too much or if winning will take too long or if the odds of winning are quite uncertain. As in the physical world, the stakes have to be pretty high in order for one to entertain the idea of suing. They reach that height less often than we might think.
How much suing takes place as a result of online disutes, and is the frequency of lawsuits rising with the growth of cyberspace? This is not something that is easy to measure. Ironically, perhaps, given all the information that is accessible online, we do not have a database containing this information.
A search of the largest Lexis database of state and federal decisions revealed twenty six cases decided in 1996 that arose out of some online activity. This is a striking increase over 1995, when there were only eight decisions, and of all the years before 1995 when there were only three. Of course, there are many cases that are filed and then resolved before decision that do not show up in the Lexis database. Nonetheless, the Lexis numbers suggest that courts are not being overrun by cyberdisputes, but they also indicate that as the network grows, disputes are becoming more frequent.
A second measure of current levels of dispute is suggested by the Cyberspace Law Institute's web site
Copyright © 1999 Social Science Electronic Publishing, Inc. All Rights
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authors:
Ethan Katsh Larry Lessig David Post Eugene Volokh