Why Compare Cyber Laws

In one line

Comparing cyber laws is not listing what each country's statute says; it is asking what problem each is solving and what each answer costs.

In the wording a student can write in an exam: comparative law in this field proceeds by the functional method, which identifies a problem that every legal system faces, asks how each system solves it whatever the doctrinal labels used, and then explains the differences by reference to the constitutional, institutional and economic conditions of each system; and the four problems on which cyber law systems may usefully be compared are liability for content published by another, the protection of personal data, the powers of the State over the network, and the reach of a court over conduct abroad.

Why comparison is worth doing in this subject

Because India borrowed almost everything and a student who does not know the sources cannot see the shape of the Act.

Section 4 is article 6 of a United Nations Model Law. Section 79 answers the same question as the European e-Commerce Directive and the American Communications Decency Act. Section 43A and the SPDI Rules were drafted with the European data protection directive in view. Chapter 610 traces the borrowings.

Because the network is one thing and the laws are many. A dispute in this field routinely engages three legal systems at once, and chapter 40 explains why. A lawyer who knows only Indian law cannot advise on the ordinary case.

And because the University asks. Topic 3.1 is comparative study and topic 3.2 names five systems.

The method

The functional method is the standard tool and it has three steps.

Step one: state the problem in factual terms, not in legal ones. Not "what is the safe harbour in each country", which assumes every country has one, but "when a person publishes something unlawful on a platform, who bears the loss?" Stated factually, every system has an answer, including the answer that the platform bears none.

Step two: find the answer in each system, wherever it lies. It may be in a statute, in case law, in a regulator's practice or in a contract term the market imposes. Comparing statutes alone produces a false picture, because a country with no statute may have a stricter rule than one with a detailed statute nobody enforces.

Step three: explain the differences. This is where the marks are. A difference is explained by something: a constitutional guarantee, an institutional capacity, an economic interest, a political tradition. The United States protects platforms more generously than India because of the First Amendment and because the platforms are American. Europe regulates more heavily than either because it has no large platforms of its own and a strong tradition of rights-based regulation. China is different because sovereignty over the network is a stated policy.