Beyond geography: nuisance in virtual communities.

• Author: Needham, Dorian

The common law of nuisance and its civilian cousin, troubles de voisinage, seek to set the threshold for tolerance between neighbours, who were traditionally understood as owning adjacent parcels of land. During and after the Industrial Revolution, as technological advances enabled pollution to spread more widely, judges began adapting nuisance to recognize increasingly distant "neighbours." Now, as the internet brings into contact--and facilitates disputes between individuals who are so distant that they have never met in person, judges should consider adapting nuisance once again by recognizing these individuals as virtual neighbours. Such adaptation, as illustrated in two case studies, is enabled by nuisance's inherent flexibility and its concern with balancing interests. Further, this enlargement in the size and scope of neighbourhoods aligns with judges' occasional recognition of virtual communities, and more broadly with their frequent acknowledgement of experiential (rather than geographic) communities. Finally, applying nuisance in virtual 'contexts forces both judges and laypersons to acknowledge and to challenge their common, unquestioned tendency to imagine online interactions in spatial terms. Though cyberspace is nota "place," and though it does not merit a separate normative order, it may still provide a fertile environment for nuisance to take its next steps.

Avec le delit de nuisance en common law et son cousin en droit civil, les troubles de voisinage, on a cherche a etablir le seuil de tolerance entre voisins qui, selon la definition traditionnelle, etaient les proprietaires de terrains adjacents. Pendant et depuis la Revolution industrielle, au fur et a mesure que les progres technologiques ont permis a la pollution de se propager a grande echelle, les juges ont commence a adapter la nuisance en fonction de leur reconnaissance croissante du concept de voisins >. De nos jours, avec l'Internet qui met en relation des individus, et favorise l'eclosion de differends entre eux, eloignes l'un de l'autre au point de ne s'etre meme jamais rencontres en personne, les juges sont de nouveau appeles a adapter le concept de nuisance en considerant ces individus comme des voisins virtuels. Ce sont la souplesse inherente au concept meme de nuisance ainsi que le souci de concilier des interets divergents qui rendent possible une telle adaptation, comme l'ont illustre les deux etudes de cas citees. Qui plus est, l'elargissement de la definition et de la portee de la notion de voisinage correspond a la reconnaissance que les juges ont accordee, de maniere occasionnelle, aux communautes virtuelles et de maniere plus generale, a leur reconnaissance frequente de l'existence de communautes experientielles (plutot que geographiques). Enfin, l'application de la nuisance aux contextes virtuels oblige les juges aussi bien que les citoyens ordinaires a reconnaitre et a remettre en question leur tendance habituelle, voire incontestee, a concevoir les interactions en ligne en termes spatiaux. Bien que le cyberespace ne soit pas un > en tant que tel, et qu'il ne puisse etre classe comme un ordre normatif distinct, il n'en reste pas moins qu'il constitue un terrain propice a l'evolution de la notion de nuisance.

1. INTRODUCTION II. NOTIONS OF NEIGHBOURHOOD A. Who Is My Neighbour? B. The Elements of Nuisance C. Balancing Interests and Enlarging Neighbourhoods D. Public Nuisance E. Statutory Nuisance F. Not Just Next Door III. CONCEPTS OF COMMUNITY A. "Virtual Communities"? 1. Communities of Experience 2. The Birth of Cyberspace 3. No Different and Nowhere B. Communities in Court IV. MAKING SPACE FOR NUISANCE A. Nuisance in New Neighbourhoods 1. By Any Other Name 2. A Flexible Response 3. Courts and Critics 4. The Balancing Act B. Challenges to Nuisance C. Nuisance Applied 1. Scenario 1:"Spidering" 2. Scenario 2: Spam 3. Further Frontiers CONCLUSIONS: BEYOND GEOGRAPHY I. INTRODUCTION

   The internet provides a new opportunity, another venue, for human interaction. Like any human interactions, those that occur online are not universally positive. Conflicts occur; claims are made and contested.

   In our world of bricks and mortar, flesh and bone, some of our first and many of out primary claims involve the space we occupy. Yet our uninhibited use and enjoyment of this space is impossible, inevitably infringing the use and enjoyment of others. These people, our neighbours, have claims no less legitimate than our own--so within out space we moderate our actions, anticipating that they will do likewise. Neighbourhood, or voisinage, thus "implies a fragile equilibrium, or give-and-take, between my neighbour and me." (1) This equilibrium is upset when neighbours do not share similar expectations about the amount or nature of giving and taking.

   Enter the law of nuisance, or troubles de voisinage. (2) Focussing on what is "normal" for a given neighbourhood, nuisance seeks to set the threshold for neighbours' tolerance of one another. Thus, "[n]uisance does not demand a clear resolution of ... differing perceptions. Indeed, it demands demonstrated willingness to live with considerable conflict." (3) This conflict, however, can be productive: it can foster dialogue inside or outside the courts--propelling neighbourhoods toward change.

   A significant change of late has been the alleged decline in importance of physical neighbourhoods and the corresponding rise of online, "virtual" communities. (4) Judges have struggled to respond by applying old legal concepts to new and shifting technological contexts, gradually adapting the laws of contract and property to virtual communities. (5)

   The law of nuisance, however, is a notable exception. Despite its inherent flexibility, it has played almost no role in virtual communities. Some writers have called for its use, (6) but they have done so in a largely cursory manner: they consider only new applications of nuisance law, failing to discuss the implications of such applications both for the law itself and for law's conception of neighbourhoods and communities.

   In the pages that follow, I seek to remedy this deficit. I explore whether, and how, we can apply nuisance to virtual communities, and I ask what we learn about virtual communities (and communities generally) in so doing. I draw on scholarship and jurisprudence from common and civil law jurisdictions, though the subject matter requires that I rely heavily on American sources. (7) I find that nuisance's flexibility renders it a useful tool for regulating virtual communities, and that some courts have already laid the groundwork for such regulation by recognizing nongeographic neighbourhoods. Throughout, I address the metaphoric use of "cyberspace": our common tendency to imagine the internet as a place. I find that this metaphor has perhaps detrimentally stifled some avenues of legal analysis, but that it also enables the creative application of nuisance to internet-based civil suits.

2. NOTIONS OF NEIGHBOURHOOD

   1. Who Is My Neighbour?

      The Canadian Oxford Dictionary uses somewhat geographic terminology to describe a "neighbour" as "a person, institution, etc., resident or established next door to or near or nearest another." (8) This conception of a neighbour reflects the word's origins, a combination of Old English neah (near) with gebur (dweller). (9) Only one ("next door to") of the three geographic indicators in the dictionary's definition of "neighbour," however, and no aspect of the word's etymology, requires that a "neighbour" occupy a physically contiguous space. (10)

      The challenge in bounding a neighbourhood is thus to determine who is "near(est)." The task, however, cannot simply be to assign "near" a physical measurement, establishing around each person a radius within which all those "resident or established" are neighbours. Such a conception would make neighbourhoods ever-fluctuating: your neighbourhood would change as you moved, and those who lived on your block would be neighbours only when you were at home. (11) Rather, the neighbours at issue here are those who are "near" in some other sense. The word "near" is itself relatively flexible, meaning, inter alia, "close to, in place or time," "dosely related," "intimate," or "similar." (12) Our neighbourhood, then, could consist of those who are proximal, or alternatively those to whom we are similar--or both, in gated neighbourhoods, ethnic enclaves or ghettoes.

      We reach a similar conclusion in examining the French voisin, for which the definitions include not only "[q]ui est a une distance relativement petite" and "[p]ersonne qui vit, habite le plus pres" but also "[q]ui presente un trait de ressemblance." (13) This range of meanings reflects the word's origins in the Latin vicinus, meaning not only "neighbouring," but "near," "similar" and "like." (14) Thus, Adrian Popovici writes that "[a]utrui est mon prochain, mais pas mon voisin. Mon voisin est neanmoins et parfois meme souvent autrui; mais il est mon voisin." (15)

   2. The Elements of Nuisance

      The tort of nuisance and its civilian cousin, troubles de voisinage, moderate the relationships between neighbours. (16) This moderation is expressed austerely by article 976 of the Civil Code of Quebec ("CCQ"):"[nleighbours shall surfer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom."

      A great deal is entailed by this apparently straightforward provision. First, it says nothing about the rights of neighbours. Before the 1994 reform of Quebec's civil law, troubles de voisinage were seen by some as an abus de droit, the use of a right contrary to its social function. (17) The only rights entailed by the post-reform article 976, however, are exegetical. The first is the right of neighbours to annoy each other "normally": each may engage in conduct that could be illegal elsewhere--in other words, each has the...