Friday, January 22, 2016
graphic image for Grafstein lecture 2016

Speaker Justice Roger Hughes says historical merchant and marine laws can help answer 21st century legal questions

By Alvin Yau, 1L

In an era of Netflix, smartphones, and social media, you have to look back in history in order to move forward in the modern age and develop new laws. That was the premise for the 2016 Grafstein Lecture in Communications, given by the Honourable Justice Roger T. Hughes, LLB 1966, of the Federal Court of Canada. Lex Aetheria – the Law of the Aether discussed the emergence of a new international body of laws that dealt with the regulation of telecommunications issues, particularly the Internet.

Professor Simon Stern offered introductory remarks on behalf of the law school and Peter Grant, LLB 1967, counsel at McCarthy Tétrault, introduced Justice Hughes.

Hughes began by tracing the lex aetheria or the “law of the aether” of Internet-related laws to the historical parallels that can be found in other bodies of laws that regulated international affairs in an otherwise unclear jurisdictional area. Particularly, the development of mercantile and maritime law serves as a useful example of international jurisprudence that can help inform modern-day legal questions of how to deal with telecommunications and Internet regulation.

"Judges in many different countries talk about subjects like broadcasting. In many of these countries, the thinking is similar; but cases from abroad are not often cited,” said Hughes, as he elaborated on the issue of the nascent and wide-ranging collection of international jurisprudence concerning Internet regulation. Hughes continued about how the challenges of “grappling transnational issues” in telecommunications means that Canadian law must manage with currently unclear areas of jurisprudence, enforcement, and defences.

Next he reflected on the Canadian case of Society of Composers, Authors and Music Publishers of Canada v Canadian Association of Internet Providers which dealt with how, in the words of former Supreme Court of Canada Justice Ian Binnie, LLB 1965, international telecommunications transmissions (e.g. websites hosted in foreign countries but accessed in Canada) were both “here and there.” This reality poses interesting and unresolved questions about how a court can apply its laws in matters with such international dimensions.

In light of the challenges that Internet regulation presents for jurists, Hughes considered the historical development of other legal areas that could inform how modern Canadian jurisprudence can form a coherent legal system to regulate the field. Touching on a significant breadth of legal history, he considered the roots of Roman law and how it proposed the “adoption of the laws of one jurisdiction as long as [the laws of the current jurisdiction] do not oppose them.” Such an adaptive model allowed for the common law development of lex mercantia (mercantile law) and lex maritima (maritime law).

With respects to these two areas of law, historical parallels can be found in how there were once no fixed sets of rules dealing with either marketplace transactions or commercial interests on the high seas. In both instances, organic systems of dealing with dispute resolutions between parties created informal legal regimes that ultimately ensured the smooth functioning of trade. Hughes described how “in dealing with things moving around where countries do not exist, there evolved a system of laws” that formed the basis of our internationally aligned and coherent laws on mercantile and marine questions.

Hughes said a similar occurrence is happening in the Internet age. Despite how many court decisions around the world have dealt with aspects related to telecommunications in the Internet age, a lack of common laws remains among nations such as England, Australia, the US, and other nations in questions of an inherently international nature.  Hughes proposed that Canadian jurists can learn from the case law that has developed in each of these nations and adapt them to the exigencies of Canadian telecommunications. He observed how international legal coordination can be modeled after the successful 1865 International Telegraph Convention or the United Nations Commission on International Trade Law (UNCITRAL).

For Hughes, a future set of laws that applies the lessons of historical legal development is critical. “We can return to lex maritima model where we can have series of jurisprudences that come together to form lex aetheria.” All that remains is for jurists and legal scholars to synthesize the diverse areas of law that deal with these ethereal matters and propose a unifying and coherent jurisprudence that can be flexible enough to adapt to technological innovations while still adhering to the first principles that have made the lex mercantia and lex maritima work so well over time.

 

The Grafstein Lecture in Communications was established in 1999 by Senator Jerry S. Grafstein, LLB 1958, to commemorate his own graduation from the law school, as well as the graduation of his son and daughter-in-law.