For the legal world attempting to come to terms with the implications of the internet, the thought that the world has already moved on may come as something of a shock; however, such is the case. Web 2.0 is upon is – even if Web 1.0 doesn’t seem to have been fully assimilated.

Web 2.0 is very much a concept rather than an improvement or development of the original internet Web 1.0. It is seen as encompassing modern communication and information exchange and particularly social networking, rather than any particular infrastructure. From a legal perspective this change means that lawyers require to reconsider the basic concepts of society and determine how (rather than whether) existing legal principles and concepts can be applied to this new world. Web 2.0, is about collaboration and using the Internet as a software platform rather than just a networking tool.

Social networking

Bebo is presently one of the fastest growing social networking sites in the world. Similar in concept to earlier networking sites such as Friends Reunited and MySpace and media sites such as Flickr and YouTube, it provides an online venue where users can exchange pictures, messages and ideas. Many young people (the major users of social networking sites) use it to arrange their social lives and interface with friends old and new.

As with all social networking sites, registered members have a profile page where they can include information about themselves, post pictures and communicate with other members through blogs and wikis.

However, there is no editorial control, and there is no reason to believe that the profile online bears any resemblance to the facts and this gives rise to many of the legal issues surrounding social networking – many of which revolve around concerns such as paedophilia, stalking and deception. To recall the famous cartoon from the New Yorker, “On the Internet no-one knows you’re a dog”.

Information exchange

Web 2.0 allows parties to exchange information in both closed and open environments; many of us will have used some of these systems without even knowing it; sites such as Flickr, Wikipedia and Google Maps are all examples of the more popular Web 2.0 sites based on sharing and collaboration. Wikipedia is now the largest encyclopaedia project in the world; already it has 10 times the number of articles of the Britannica, and if you don’t like what you see, you can always change it. However, this ability to alter is also one of the legal issues; there have already been cases where incorrect information has been posted or incorrect amendments made. Although it has been argued that the social network will rectify any errors in due course, the mere size of the project (at over 800,000 articles) must mean that many will not be reviewed for a considerable period.

However, wikis as a Web 2.0 application do offer an opportunity for intra-enterprise cooperation and they are being used within law firms and legal departments as a means of knowledge sharing.

Blogs, whilst perhaps not immediately recognised as a Web 2.0 application are very much within the overall scope of the topic.. However, most of these are personal reminiscences rather than sites of any real importance and at the end of the day, are static sites rather than anything particularly clever.

On the other hand, if the Blog is linked to an RSS feed so that – either from the blog or from some form of blog aggregator, users can subscribe for the information they want, the benefits of a Web 2.0 environment can be seen more clearly.

Perhaps, the adoption of techniques such as blogs and wikis (and similar) will lead to the appearance of virtual legal firms. The Legal Scholarship Network, a joint project hosted by Stanford Law School and the European Corporate Governance Institute, provides an open facility to upload and catalogue legal research and position papers on legislation and other issues. Currently the site holds more than 75,000 papers. There have been almost 10 million downloads to date. Clearly there is a demand for collaborative expertise and perhaps this is how Web 2.0 may be used by lawyers.

Second Life

Perhaps the greatest – and to date most complex – Web 2.0 application is Second Life, with more than 7 million registered users, known as residents. For most lawyers the whole idea of a virtual world in parallel with the “real” world, is a very difficult concept to grasp. Why anyone would use real money to purchase imaginary money in a pretend world is somewhat incomprehensible. However, well over US$1million is spent every day. Second Life is an online, virtual community in which users buy and sell products, services and property for virtual money (which has to be bought with real cash). Depending on how much a user pays, the size of the shopfront, land, or island will be determined. Having bought the property, users then buy furniture, art, services or whatever from other users who offer these for sale. It is not dissimilar to the Sims games of the 70s and 80s, with interactivity and an open-ended environment. Second life will expand or contract in line with user requirements and one of the issues will be how the community deals in the virtuality with the problems with which we have to grapple in real life. However, it is not real and never will be.

It clearly has some attraction, with educational institutions including Harvard, University College Dublin, Ohio, Ball State, New York and Stanford Universities all having virtual classrooms. Even lawyers are not immune, with English law firm Field Fisher Waterhouse establishing its virtual law firm earlier this year.

What are some of the legal challenges?

It is not possible, here, to do more than indicate some of the legal issues which have arisen so far; the list is very far from exhaustive and there are as yet few indications of how the problems may be resolved.

IP infringement. Services such as MySpace, YouTube and Flickr provide spaces where users can upload graphical and visual media to share with others. Unfortunately copyright in some of this material may not be vested in the uploader. Whilst statutes such as the US DMCA allow for takedown notices, the question of whether (and if so to what extent) the services are immune from liability is still to be resolved. Are they ISPs, or information service providers or what?

Criminal liability. By their very nature, social networking sites may facilitate criminal activity such as harassment, stalking, paedophilia, libel, defamation and race hate activities; given that particularly in sites such as Second Life, there is no “real world” connection, which laws apply (if any)?

Deception. Leaving aside the criminal aspects, if an online community is used for activities which in the real world are regulated, is there any control on how these are supplied? Given the size of the real-money market on Second Life, there are financial consequences. However, what is the regulatory regime for Second-Life advice on medical, legal, financial or other regulated activities? Where in First Life (ie reality) the provision on such advice is regulated territorially, how is it to be dealt with in Second Life? Is a virtual community whose “currency” is interchangeable real money not an opportunity for money-laundering? Do online financial avatars require to have virtual passports and utility bills in order to open virtual bank accounts or obtain services from virtual lawyers?

Terrorism and similar. Within virtual communities we are already starting to see the rise of anti-social behaviour, which I suppose was inevitable given that it is prevalent in First Life. There is even a Second Life Liberation Army fighting against the rules of Linden Labs, the company behind Second Life.

Illegal gaming. With online gaming regulated in most First Life societies, gamers have turned to gaming in the virtual world. However, as Linden $, the currency of Second Life, has to be purchased with real money, does virtual gaming not circumvent the controls which exist? In a virtual world there are none of the safeguards of fairness, ethics and integrity which are required in reality – is caveat emptor really sufficient?

Conclusions

It is difficult as yet to draw many conclusions on the impact of Web 2.0 on the way law is practiced and will develop. Clearly the opportunity for collaboration will be seized on by many, whilst for others (perhaps particularly lawyers) the opportunity to become immersed in a world far removed from the law office will have attractions; now is the chance to be the pop star, beauty queen, footballer or train driver you have always wanted to be. However, the new opportunities which these developments will bring will be counterbalanced by the risks and threats and challenges of regulating these activities.

Whatever else might be said about virtual worlds, they are not pretend, they are for real!

David Flint is a partner in the Technology, Media and Communications Group of MacRoberts, where he specialises in internet law issues.

Email df@macroberts.com.