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Buckingham, Donna --- "Internet.law.nz, by Judge David Harvey" [2007] OtaLawRw 14; (2007) 11 Otago Law Review 537

Internet.law.nz

(by Judge David Harvey (2nd edition 2005) LexisNexis)

In 1990, the New Zealand Law Society mounted a national seminar, introducing lawyers to computer technology as an aid to professional legal practice. The sub-title “The Law Office Without Walls” served to preface the scale of the looming changes which the digital platform would galvanise. This reviewer was one of the two presenters and remembers that this was the first time many New Zealand lawyers faced the challenge and opportunity of the technology.

Many readers who were already computer literate to some degree in 1990 will have vivid memories of the rise in processing power since that time. Users may give less thought to the pace of change in relation to storage – for it is the hard drive which offered the much more efficient way of retrieving, working on and returning documents to storage. (As a nostalgic diversion, the first unveiling of a hard drive in 1956 was the IBM Ramac computer. It weighed one ton, had a physical imprint of two large refrigerators and storage access for 4.4 megabytes of data. Today’s multimedia mobile phone can store 2 gigabytes – 400 times that capacity.)

Storage, as much as processing speed, has provided the digital platform for today’s legal practice management, document generation, research, the conduct of client transactions and litigation. Allied with this is the rise and rise of the Internet as a remotely based and alternative platform and the exploding use of e-mail as both a communication and delivery device. Digital spaces now percolate professional and personal life; their absence for many is an uncomfortable or unthinkable prospect.

Yet their legal imprint is not always analogous to the non-digital tools, methods and work practices which they have replaced. Such is the pace of change and uptake that the digital echo has resonated throughout many areas of substantive or adjectival law.

For that reason, the second edition of Judge David Harvey’s internet.law.nz is most welcome. The title is a play on the ubiquitous urls (uniform resource locators), which provide the digital addresses for the gargantuan data set that the World Wide Web supports. However, the content is not solely confined to Internet issues. The work provides a comprehensive exploration of the contexts in which electronic technology has presented for the author, both in his judicial role and his academic teaching.

An appreciation of the breadth of the approach lies in the chapter list:

1. Online information and research – some issues
2. Jurisdiction – which court, which law?
3. Internet governance
4. Criminal law relating to crimes involving computers; privacy and the interception of private communications
5. Evidence and technology (covering evidence gathering, admission of items, the use of information technology in court for evidentiary and presentational purposes)
6. Tortious liability and network systems
7. Online business relationships – commerce, contract formation and the Electronic Transactions Act
8. Copyright in cyberspace

As Judge Harvey notes in the Preface, the ‘continuing dynamic’ of developing technology is the reason for a second edition only two years after initial publication. The passing of the Crimes Amendment Act 2003 (establishing a discrete set of computer crime provisions in the Crimes Act 1961), amendment to the interception regime to accommodate text messages, the continuing development of copyright law, changes to tortious liability and the reception of electronic items of evidence are all areas in which the work has been substantially reframed.

It is this reviewer ’s opinion that the pace of change is yet to slacken. Although in 1990 the extent to which technology would lay down challenges was largely speculative, today it is much easier to identify where the next might lie. The enactment of the Evidence Act 2006 (to come into force on a date yet unspecified) provides a climate for substantial change; so too does the New Zealand Law Commission’s planned Report on Entry, Search, Seizure and Interception regimes which should be in the public domain in 2007. New Zealand courts have been active in the area of search warrants and the extent and method of search for and seizure of digital items, in embedding the execution of Anton Piller orders in the electronic context and in sketching the extent of digitally based discovery obligations in civil proceedings. The latter issue has spawned substantial litigation in other jurisdictions and this will doubtless be mirrored in New Zealand (although to a lesser degree, given the absence of the tort of spoliation). Equally, in other jurisdictions, e-filing, e-service and e-litigation in their various forms is being piloted or is already embedded in civil litigation procedures, often using a secure website or dedicated email court address as the delivery vehicle. Such technology again provides unique challenges as the rules that govern this change in the conduct of litigation are fleshed out. These are only some of the questions worthy of the author ’s scrupulous attention in any future edition. In the meantime, this second publication of internet.law.nz provides an excellent foundation for exploring the digital domain as it relates to law and legal practice.

Donna Buckingham, Faculty of Law, University of Otago.