Fitzgerald, Brian --- "Software as discourse" [1999] AltLawJl 25; (1999) 24(3) Alternative Law Journal 144

We are on the verge of a revolution that is just as profound as the change in the economy that came with the industrial revolution. Soon electronic networks will allow people to transcend the barriers of time and distance and take advantage of global markets and business opportunities not even imaginable today, opening up a new world of economic possibility and progress.[15]

In summary, the fundamental premises of the new society include the notion that information is currency, there is an intangible delivery of products, there is a non-territorial and decentralised nature to the way we do business. Time, space and physicality disappear into the background.

We stand on a precipice overlooking one of the most significant shifts in the distribution of commodities within our market, wondering just how the physicality that we now experience, and take so much for granted, will transform into intangibility. Some things are easy to conceptualise as going digital. The creative arts and associated products that we now enjoy and that can be delivered as audio or visual commodities are things that we can conceptualise as turning to intangibility. The potential exists more broadly though to move our social, cultural and economic existence from a physical base to an intangible base.

The revolution currently under way in the music industry is an example that (while easy to conceptualise for some) gives insight into the potential intangibility of distribution. Although it has been developing over the past few years the mp3 format that is now used to allow the free and easy copying of digital quality music from the Internet onto a digital CD player, downloaded also from the Internet, highlights how the distribution chain has gone digital.[16] In this instance we are seeing the delivery of digital player and digital CD through digital means. We have already seen the delivery of software and other recreational items across the Internet. Now we are seeing the delivery of the music that we will listen to across the Internet on a CD player that we will download as well. More and more will change. This is just the start to the greatest revolution in the distribution of commodities that we have ever seen. And this turn to digital distribution will be based on the dissemination of digitised information through the discourse of software.

The information society: institutional structure

As prisoners of the past, we will conceptualise the constitutionalism for information society with traces of tradition very much embedded in our thought. We will look initially at institutional structure and seek to find what public institutions will dominate this new landscape.

States, even though their sovereignty continues to dissipate in the sea of transnational civil society and international governance,[17] will still play a major role as it is their compulsory coercive powers (courts, police forces, armies, and goals), as the Pinochet case[18] so ably shows, that at the end of the day are needed to implement policy. In short, the state at least in its coercive capacity is still vital to the functioning of transnational civil society and international institutions. The state will no doubt take direction from the United Nations, World Intellectual Property Organisation, World Trade Organisation (WTO), UNCITRAL, OECD etc on a range of informational issues. The sleeper in terms of international institutions is the WTO. In this emerging structure is a constitutional system backed by compulsory coercive dispute resolution that promises to act as a mechanism for universalising substantive norms of international law.[19] The great concern is that the WTO is too one eyed and that trading interests especially the trading interests of the hegemon will dominate. Nonetheless as the WTO has already embraced intellectual property law through TRIPS it has the potential to exert great influence over information society. This will result in a push for more legitimacy and representation within the trade system. There will inevitably be a push for individual (including corporate and group) representation before and within the primary institutions of the WTO. This push will arise from the view that as the trade structure evolves into much more of a constitutional system as happened in the European Union, greater accountability to and representation of individuals will be demanded.[20]

These traditional public institutions are obvious components of governance in the information society. However, it has also become obvious that large private organisations will perform formal governance roles. While large private groups such as MNCs, non-government organisations (NGOs), employer and employee organisations have exerted influence over public governance structures it has been rare for them to be involved as part of the formal governance structure.[21] The Internet, which is very much the centre of information society (at the moment) is unique in that it has arisen largely through coordination by private organisations albeit ones that are close to government. The allocation of Internet domains or space which has been described as an issue of public trust,[22] has taken on great significance due to the collision between domain names and trademarks.[23] The great movement now is towards developing a body that will exhibit sufficient legitimacy and representation to undertake Internet space allocation. An elaborate process is currently under way for the development of a private organisation called the Internet Corporation for Assigned Names and Numbers (ICANN), which promises to represent the interests of the architects of the Internet and Internet users in a form of privatised governance.[24] It will be interesting to see how long the states of the world remain (formally) absent from this apparently private structure.

Also the MNCs, the NGOs and industry collectives are being asked to take on a governance role that will be sanctioned by the state. This has happened before through codes of conduct but not to the extent that we are likely to see in the information society. President Clinton explains this in his Framework for Global Electronic Commerce:[25]

1. The private sector should lead.
Though government played a role in financing the initial development of the Internet, its expansion has been driven primarily by the private sector. For electronic commerce to flourish, the private sector must continue to lead. Innovation, expanded services, broader participation, and lower prices will arise in a market-driven arena, not in an environment that operates as a regulated industry.

Accordingly, governments should encourage industry self-regulation wherever appropriate and support the efforts of private sector organizations to develop mechanisms to facilitate the successful operation of the Internet. Even where collective agreements or standards are necessary, private entities should, where possible, take the lead in organizing them. Where government action or intergovernmental agreements are necessary, on taxation for example, private sector participation should be a formal part of the policy making process.
...

4. Governments should recognize the unique qualities of the Internet.

The genius and explosive success of the Internet can be attributed in part to its decentralized nature and to its tradition of bottom- up governance. These same characteristics pose significant logistical and technological challenges to existing regulatory models, and governments should tailor their policies accordingly.

Australia has endorsed this approach in the Australia–United States Joint Statement on Electronic Commerce of December 1998.

What will emerge, as a key component of information constitutionalism will be an integrative institutional structure that glues together these multi-layered governance or intersecting order-creating mechanisms. It will be the norms that emanate from such an institutional structure that will play an important role in shaping the constitutionalism for informational postmodernity

The new constitutionalism: the private law

Laws governing relations in the private sphere between individuals will be key elements of the constitutionalism for informational postmodernity. Private law has always been important in constructing our social existence. However, it will become even more dominant in this regard in information society. I wish to take one example to illustrate my point, that of software as discourse.

If a software engineer has the tools to fully or partially construct discourse and identity in the digital world then the principles of law that mediate power need to mediate such an occurrence otherwise technological determinism will see me as simply another cyborg programmed to mediocrity and slavery. Laws that will play an important role in this process are laws that will govern the construction of this new discourse known as software.

Already battle lines have been drawn but major choices that will impact on the value of our lives are being hidden beneath the veil of private law rhetoric.

The role and function of software will initially be mediated by a blend of intellectual property law, contract law, competition law and privacy law, which I would term ‘informational law’ or ‘informational constitutionalism’. It is the development of the principles of these areas of law in their relation to software that will determine much about the way I live in the future.

IP: copyright and fair use

Intellectual property law in the form of copyright protects computer software as if it were a literary text allowing the copyright owner exclusive rights in relation to the reproduction of that text: Copyright Act 1968 (Cth), s.31. The rationale of copyright is that it will protect the expression of information but not the ideas supporting such expression. An example of the way in which copyright law will serve to shape our identity through the way it treats the expressive language of software is found in the context of reverse engineering and decompilation of software.

If a software engineer or developer constructs software that becomes industry standard so that the software acts as architecture for communication, it becomes in essence a discourse which allows me to speak to you. Copyright law then bears on its shoulders the need to mediate the power given to the copyright holder to monopolise rights in discourse that may have become an industry standard, in other words become common form, with the needs of the user or speaker. Herein lie the battles over reverse engineering and the decompilation of software. In order to develop complementary and improved software products (speech) software developers have reverse-engineered the industry standard software in attempts to make software that can be interoperable (conversant) with the industry standard. In many cases in order to reverse engineer software you need to copy (and in some cases ‘borrow’ parts of) the software which is technically an infringement of the copyright owner’s exclusive rights over reproduction. In the United States, courts[26] have employed fair use doctrine[27] to mediate this issue while in Australia we are promised a (part) legislative solution through amendment to the Copyright Act,[28] and await the High Court decision in Data Access Corporation v Powerflex Services Pty Ltd. Fair use is designed to define the appropriate balance between a monopoly right given as an incentive for innovation and the public interest in the free flow of information for a variety of cultural reasons.[29] In Australia, the CLRC[30] has recommended we adopt a more broad-based fair use right similar to the US model in place of our narrower and more specific fair dealing exceptions: see for example ss.40, 41, 42 Copyright Act 1968 (Cth).

IP: patent law

A patent gives a very strong form of protection (monopoly right for up to 20 years) over the using and selling of inventions. It is now clear that software (in the form of algorithms and data structures) can be patented[31] even though under the TRIPS Agreement the preferred form of protection is through copyright.[32] The role of copyright in this area has now been overtaken by events.

During the last decade, the number of software patents granted in the United States has increased tremendously. Over 13,000 software patents were issued in 1997, 17,500 are estimated for 1998 and 22,500 are estimated for 1999. In fact, ten times the number of patents granted in 1992 and 1993 will be granted in 1998 and 1999.[33]

In recent times there have been more and more extensive claims to (monopoly) patent rights in software that acts as the basic architecture of electronic commerce. There have been a number of claims in the United States that methods of transacting electronic commerce (including digital cash) are patented and cannot be replicated without a licence.[34] Here we have the very foundations of the information society, the commercial structure or architecture, being monopolised by the patent holder. The patent monopoly is something we aspire to in order to reward inventors for the public good but the patent monopoly is difficult to fathom where the basic building blocks of action or speech are being patented. In defining the patenting of software we will be defining the accessibility to new forms of discourse. How much do I have to pay to speak?

Contract law: the software licence

The main form of distributing software is through a software licence — shrink-wrap or click-wrap. Software is not distributed through a sale of a tangible good but rather through a licence of an intangible commodity. The licence is the product.[35]

‘Shrink-wrap licences’ normally used where the software is sold in a store are those shrink-wrapped around the software product and disclosed usually after opening the package containing the software. ‘Click-wrap licences’ normally used in an online environment such as the Internet involve the acceptance of the terms and conditions of a software license by clicking on a button before first using a program. The decision of ProCD, Inc v Zeidenberg[36] held that shrink-wrap, and arguably click-wrap, licences are enforceable in the United States.

In the digital world, licensing of information commodities is the essential transaction, not the sale or transfer of a tangible product. The value of the commodity is the information, and the right to control and exploit it. In this regard, the rights that are assigned in conjunction with the licence, set out as terms of the contract, are crucial, as they define the product the licensee receives. The more restrictions placed on the licensee’s use of the software, the less its value, and the greater the value retained by the licensor to use the same information in future transactions. The proposed UCC Article 2B in the United States (now to become Uniform Computer and Information Transactions Act (UCITA)) is an attempt to provide guidelines for the appropriate scope of software licensing. To this point in time it has not achieved widespread support.

This licensing mechanism said to be necessary to protect investment in innovation is mooted to allow privately legislated informational property rights to arise. In some instances it is even suggested that public domain rights currently recognised by copyright law can be ousted by the contractual software licence. Contract law then, needs to be infused with some notion of public interest in relation to informational goods such as software. And if software is discourse we need to factor that into the rights that private ordering will allow.

Competition law

In an ideal world competition law will act to balance the monopolies copyright, patent and contract create in software. It will act to define the scope of the grant of intellectual property rights. Originally the approach in the European Union was that dealings within the scope of the intellectual property rights granted by the relevant intellectual property law were immune from competition law, while other dealings were subject to competition law. The continuation of such an approach has been questioned in a decision that looks primarily at the anti-competitive effect of intellectual property rights; in other the words the scope of the grant as defined by intellectual property and competition law. [37]

The appropriate interplay between competition law and intellectual property law is of utmost importance to the construction of our identity and is currently being played out in the US v Microsoft case.[38] In Australia much focus has been placed on s.51(3) Trade Practices Act 1974 (Cth) which exempts certain intellectual property rights from the full application of the Act. Section 51(3) is set for reform in accordance with the Draft Report[39] published by the National Competition Council.[40] The proposal is to remove intellectual property rights from the s.51(3) exemption which will mean that competition lawyers will be much more eager to look at the monopoly imposed by intellectual property legislation. Even more so, the monopoly imposed by a contractual licence of intellectual property such as software.

In 1995 the United States Department (DOJ) of Justice and Federal Trade Commission (FTC) issued the Antitrust Guidelines for the Licensing of Intellectual Property which govern the interaction of intellectual property and competition law. The guidelines contain three main principles:

(a) for the purpose of antitrust analysis, the Agencies [the DOJ and FTC] regard intellectual property as being essentially comparable to any other form of property;
(b) the Agencies do not presume that intellectual property creates market power in the antitrust context; and
(c) the Agencies recognize that intellectual property licensing allows firms to combine complementary factors of production and is generally procompetitive.

These guidelines along with the European approach and the call for reform in Australia are a good indication that competition law will act to inform the scope of intellectual property rights in the future and in so doing serve to mediate attempts by any one entity to dominate the construction of informational discourse and identity.

Privacy law

Privacy is a most important principle that is set to dominate information society. Even more so when we are told software will open our hearts for the world to see. More and more software developers are realising the capacity of software to gather information from connection points without anyone knowing.[41] If our discourse cannot be discrete, we lose much of our identity and therefore privacy laws will play an important role in the (public and private) power relations in the information society.

Speaking to governments through software

Another big issue arising from the conceptualisation of software as discourse is the mandating of software standards by government. To give an example let me recount a submission I made in response to the exposure draft of the Electronic Transactions Bill,[42] which aims to give electronic documents a similar legal status to hard space documents:

My other concern is much more abstract. In sections 9(1) (b), (2) (b) and (3), and 11 (1) (c) it is provided that the government can dictate a particular form of software before it will recognise the equivalence in legal terms of the digital document. There is currently a great deal of debate over software standards (eg the debate between open and closed code, the US v Microsoft antitrust case) and it is fair to say that a government’s endorsement of a particular software could in the future be tantamount to a government endorsing a particular ideological standpoint. In the future legislation implementing a government endorsed software standard could be conceptualised as amounting to a restriction on freedom of speech. In the United States where the speech right is much broader this is more likely however such legislation could with some imagination and foresight be seen to fall foul of the Australian implied immunity from disproportionate legislative interference with political speech: Lange v ABC (1997)189 CLR 520. It would seem prudent that this requirement of a software standard be worded in such a way to accommodate within reason the specific political or social views of individuals.

Conclusion: the challenge

As we speed towards the digital millennium, it is ever more pressing for us (especially those of us who are lawyers) to fathom the genetic structure/code (natural and manufactured) of life. Here I have highlighted how software will act to construct us and how the (private) law will facilitate such a process. The task is now ours to appreciate.

References

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[1] Thurow, L., ‘Needed: A New System of Intellectual Property Rights’, (1997) Harvard Business Review 95 at 96.

[2] Towards an Australian Strategy for the Information Economy: Preliminary statement of the government’s policy approach and a basis for business and community consultation, July 1998 < <http://www.noie.gov.au> >.

[3] Webster, F., Theories of Information Society, Routledge, 1995, p.136.
[4] Fitzgerald, B.F., ‘Principles of Australian Constitutionalism’, (1994) 1(2) Proceedings of the 49th ALTA Conference 799; Fitzgerald, B.F., ‘Australian Constitutionalism’, 20 June 1997, unpublished manuscript on file with author; Hutchinson, A., Waiting for Coraf: A Critique of Law and Rights, University of Toronto Press, 1995.
[5] See generally Poster, M., The Mode of Information: Poststructuralism and Social Context, Polity Press, UK, 1990; Gergen, K.J., The Saturated Self: Dilemmas of Identity in Contemporary Life, Basic Books, NY, 1991; Derrida, J., Of Grammatology, trans. G. Spivak, John Hopkins University Press, 1977; Derrida, J., Writing and Difference, trans. A Bass, Chicago University Press, 1978; Lyotard, J-F., The Postmodern Condition: A Report on Knowledge, Minnesota University Press, 1979; Balkin, J., ‘Deconstructive Legal Practice’, (1987) Yale Law Journal 743 ; Gadamer, H-G., Philosophical Hermeneutics, trans. D. Linge, University of California Press, 1976; Feldman, S., ‘Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice’, Northwestern University Law Review 1046; Baudrillard, J., Simulacra and Simulation, 1981, trans. Sheila F. Glaser, Michigan University Press, 1994; Foucault, M., Power/Knowledge: Selected Interviews and Other Writings, 1972-1977, C. Gordon ed. and C. Gordon et al trans. 1980.
[6] Clinton, President Bill, A Framework for Global Electronic Commerce, July 1997 < <http://www.pub.whitehouse.gov> >; Alston, Senator R., Australian–US Joint Statement on Electronic Commerce, December 1998 < <http://www.dcita.gov.au> > < <http://www.pub. whitehouse.gov> >.
[7] On the notion of firmware see: Alcatel USA Inc v DGI Technologies Inc (5th Circuit Court of Appeal 26.2.99) < <http://www.findlaw.com> >.
[8] Lessig, L., ‘Law of the Horse: What Cyberlaw Might Teach’, < <http://cyber.law.harvard.edu/lessig.html> >; ‘Tyranny in the Infrastructure’ (1997) Wired Magazine < <http://www.wired.com/ wired/5.07/cyber_rights.html> >.
[9] On this notion see Habermas, J., Toward a Rational Society, 1971; Communication and the Evolution of Society, Polity Press, UK, 1984; Moral Consciousness and Communicative Action, Polity Press, UK, 1990.
[10] Thurrow, L., above, ref 1. ‘With the advent of the information revolution — or the third industrial revolution (call it what you will) — skills and knowledge have become the only source of sustainable long-term competitive advantage. Intellectual property lies at the centre of the modern company’s economic success or failure ... What used to be tertiary after raw materials and capital in determining economic success is now primary. Major companies such as Microsoft own nothing of value except knowledge.’
[11] Fitzgerald, B.F., ‘Life in Cyberspace: A Simulating Experience’, (1997) 3 Computer and Telecommunications Law Review 136–9 ; Turkle, S., Life on the Screen: Identity in the Age of the Internet, Simon and Schuster, New York, 1995.
[12] Towards an Australian Strategy for the Information Economy: A preliminary statement of the government’s policy approach and a basis for business and community consultation, July 1998 < <http://www.noie.gov.au> >. ‘In Australia, and in many places around the world, students now use computers at home and school to research projects; governments supply information and services online, so that citizens needn’t leave home to lodge forms or get the help they want; farmers access product information and markets by internet; people do banking — borrowing, transferring and investing money — electronically; businesses offer their goods and services for sale on websites, and consumers make purchases by browsing virtual shops and sending orders and payment over the net ...’
[13] Webster, F., Theories of Information Society, above, pp.6-29.
[14] Webster, F., Theories of Information Society, above, ch 7, ‘Information and Restructuring: Beyond Fordism’, p.135ff.
[15] < <http://www.iitf.nist/elecomm/ecomm.htm> >.
[16] See further: < <http://www.mp3.com> >.
[17] See generally, Teubner, G. (ed), Global Law Without a State, Dartmouth UK, 1997.
[18] Regina v Bartle and the Commissioner of Police for the Metropolis and others ex parte Pinochet, 25 November 1998 and In re Pinochet, 15 January 1999, < <http://www.parliament.the-stationery-office.co.uk/ pa/ld/ldjudinf.htm> >.
[19] Fitzgerald, B.F., ‘Trade Based Constitutionalisms: A Framework for Universalising Substantive International law’, 5 (1996-97) University of Miami Yearbook of International Law 131; Evans, G.E., ‘Issues of Legitimacy and the Resolution of Intellectual Property Disputes in the Supercourt of the World Trade Organisation’, (1998) 14 Journal of International Trade Law and Regulation 81.
[20] Weiler, J., ‘The Transformation of Europe’, (1991) 100 Yale LJ 2403.
[21] See eg Comalco v A-G Qld [1976] Qd. R 231; cf Texaco Overseas Petroleum v Libyan Arab Republic (1978) 17 ILM 1.
[22] See Generic Top Level Domain Memorandum of Understanding (gTLD MOU, 1997) < <http://www.wipo.org> >.
[23] Fitzgerald, B., Gamertsfelder, L. and Gulliksen, T., ‘Marketing Your Website: Legal Issues Relating to The Allocation of Internet Domain Names’, (1998) UNSWLJ 549.
[24] See further at < <http://www.icann.org> >.
[25] < <http://www.pub.whitehouse.gov> >.
[26] Sega Enterprises Ltd v Accolade, Inc. [1993] USCA9 19; 977 F. 2d 1510 (9th Cir. 1992); Computer Associates International Inc v Altai Inc 23 U.S.P.Q.2d 1241 (2d Cir. 1992). See also s.1201(f) Digital Millennium Copyright Act (1998, USA) 17 USC < <http://thomas.loc.gov> >.
[27] Section 107, Copyright Act 1976 (17 USC); Fitzgerald, B., ‘Underlying Rationales of Fair Use: Simplifying the Copyright Act’[1998] SCULawRw 8; , (1998) 2 Southern Cross University Law Review 153. On reverse engineering and decompilation generally see: Fitzgerald, A. and Cifuentes, C., ‘Interoperability and Computer Software Protection in Australia’, (1998) 4 Computer and Telecommunications Law Review 271; Cifuentes, C. and Fitzgerald, A., ‘Reverse Engineering of Computer Programs: Comments on the Copyright Law Review Committee’s Final Report on Computer Software Protection’, (1995) 6 Journal of Law and Information Science 241.
[28] Williams, Attorney-General D. and Alston, Senator R., ‘Copyright Changes to help Australian Software Industry’, 23 February 1999, < <http://www.dcita.gov.au> >; see proposed ss.47 D-F Copyright Amendment (Computer Programs) Bill 1999; cf s.1201(f) Digital Millennium Copyright Act (1998, USA) 17 USC < <http://thomas.loc.gov> >.
[29] Fitzgerald, B., ‘Underlying Rationales of Fair Use: Simplifying the Copyright Act’[1998] SCULawRw 8; , (1998) 2 Southern Cross University Law Review 153.
[30] Copyright Law Review Committee, Report on the Simplification of the Copyright Act 1968 Part 1 Exceptions to the Exclusive Rights of Copyright Owners, 1998 < <http://www.agps.gov.au/clrc/> >.
[31] Fitzgerald, A., Fitzgerald, B., Cook, P. and Cifuentes, C., Going Digital: Legal Issues for Electronic Commerce, Multimedia and the Internet, 1998, Prospect Publishing < <http://www.prospectmedia.com.au> >.
[32] Article 10(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, part of the World Trade Organisation Agreement of 1994 and binding on all members of the World Trade Organisation provides that: ‘Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).’ Further on this issue see: Fitzgerald, B.F., ‘Lotus Development Corporation v Borland International Inc: Is the Lotus 1-2-3 Menu Command Hierarchy Copyrightable?’, (1995) 6 Journal of Law and Information Science 277; Fitzgerald, B.F., ‘Computer Copyright: Same Words, Different Source Code: Data Access v Powerflex’, (1996) 2 Computer and Telecommunications Law Review 120.
[33] Aharonian, G., Internet Patent News, 18 October 1998; Fitzgerald A. and Cifuentes, C., ‘Interoperability and Computer Software Protection in Australia’, (1998) 4 Computer and Telecommunications Law Review 271.
[34] See eg State Street Bank & Trust Co v Signature Financial Group Inc 149 F. 3d. 1368 (Fed. Cir. 1998) patent on computing financial data; Cybergold patent on paying to view Internet advertisements and Sightsound patent for downloading audio or visual material for a fee transmitted over the network: <<http:/www.nytimes.com/library/tech/ 99/02/biztech/artciles/01digi.html>>.
[35] Evans, G., and Fitzgerald, B., ‘Information Transactions Under UCC Article 2B: The Ascendancy Of Freedom of Contract in the Digital Millennium’[1998] UNSWLawJl 46; , (1998) 21 UNSW Law Journal 404.
[36] 86 F.3d 1447 (7th Cir. 1996).
[37] See further: Radio Telefis Eireann and Independent Television Publications Ltd v ECCommission( Magill Case) [1995] EUECJ C-241/91P; [1995] 4 CMLR 718; Arts 85, 86 Treaty of Rome (European Union); Morgan G. and Wilson, A., ‘Restrictions on the Transfer of Software’, (1996) 3 CTLR 82; Art 40 TRIPS.
[38] < <http://www.microsoft.com> >
[39] ‘Review of ss.51(2) and 51(3) of the Trade Practices Act 1974’ pp.93–132 < <http://www.ncc.gov.au/nationalcompet/section%2051 %20review/ section%2051.htm> >.
[40] < <http://www.ncc.gov.au> >.
[41] See Gunning, P., ‘Legal Aspects of Privacy and the Internet’, in Going Digital: Legal Issues for Electronic Commerce, Multimedia and the Internet, Prospect Publishing, 1998, p.169 and Kirby, Justice M., ‘Privacy in Cyberspace’[1998] UNSWLawJl 47; , (1998) 21 UNSWLJ 323. See further < <http://cyber.harvard.edu/privacy.html> >.
[42] < <http://www.law.gov.au> >.