Andrew Murray
Andrew Murray

please note:
On leave Michaelmas 2014 - Summer 2015

Email: a.murray@lse.ac.uk
Administrative support: Lucy Wright
Room: New Academic Building 7.11
Tel. 020-7849-4645 

Technology Law and a Fellow of the Royal Society for the Encouragement of Arts, Manufactures and Commerce (FRSA). Andrew studied law at Edinburgh University, from where he graduated (LL.B. Hons) in 1994. He undertook the one year Postgraduate Diploma in Legal Practice during 1994-95 and then spent one year as a research assistant in the Department of Private Law, University of Edinburgh before taking up a lectureship in law at the University of Stirling in 1996. He joined the LSE Law Department in September 2000. As well as holding memberships of: The Society of Computers and Law (SCL); The Higher Education Academy (HEA) and The David Hume Institute, Andrew was from 2001-2004 an Executive Member of the British and Irish Law, Education and Technology Association (BILETA); and was from 2002-2008 a recognised 'Independent Expert' of the Nominet UK Dispute Resolution Procedure and from 2007-2012 a Fellow of the Honourable Society of Gray’s Inn.

see also Andrew Murray's LSE Experts page

see also The IT Lawyer

see also MediaPaL@LSE Blog

Research interests

Andrew’s principal research interests are in regulatory design within Cyberspace, particularly the role of non-State actors, the protection and promotion of Human Rights within the digital environment and the promotion of proprietary interests in the digital sphere, encompassing both intellectual property rights and traditional property models.

 
External activities
  • Andrew is a member of the Management Board of Creative Commons, England & Wales and currently serves as Articles Editor of the Modern Law Review. He is also a member of the Advisory Committee UNESCO study on Freedom of Expression and Media Development relating to Internet intermediaries.

 
Books  

'Information Technology Law : The Law and Society' (Oxford, 2010)

Information Technology Law - coverInformation Technology Law is the ideal companion for a course of study on IT law and the ways in which it is evolving in response to rapid technological and social change. This ground-breaking new work is the first textbook to systematically examine how the law and legal process of the UK interacts with the modern 'information society' and the fast-moving process of digitisation. It examines the challenges that this fast pace of change brings to the established legal order, which was developed to meet the needs of a traditional physical society.

The Regulation of Cyberspace: Control in the Online Environment (London: Routledge-Cavendish,  2006).

In The Regulation of Cyberspace, Andrew Murray examines the development and design of regulatory structures in the online environment. The book models how all forms of control, including design controls, and market controls, as well as traditional command and control regulation, are applied within the complex and flexible environment of Cyberspace. Drawing on the work of Cyber-regulatory theorists such as Yochai Benkler, Andrew Shapiro and Lawrence Lessig, Murray suggests a model for Cyberspace regulation which acknowledges its complexity. He further suggests how this model can be utilised by regulators to provide a more comprehensive regulatory structure for Cyberspace.

Human Rights in the Digital Age (London: Glasshouse, January 2005); co-edited with M. Klang

Human Rights in the Digital Age - cover

The digital age began in 1939 with the construction of the first digital computer. In the 65 years that have followed, the influence of digitisation on our everyday lives has grown steadily and today digital technology has a greater influence on our lives than at any time since its development. This book examines the role played by digital technology in both the exercise and suppression of human rights. The global digital environment has allowed us to reinterpret the concept of universal human rights. Discourse on human rights need no longer be limited by national or cultural boundaries and individuals have the ability to create new forms in which to exercise their rights or even to bypass national limitations to rights. The defence of such rights is meanwhile under constant assault by the newfound ability of states to both suppress and control individual rights through the application of these same digital technologies.
     This book gathers together an international group of experts working within this rapidly developing area of law and technology and focuses their attention on the specific interaction between human rights and digital technology. This is the first work to explore the challenges brought about by digital technology to fundamental freedoms such as privacy, freedom of expression, access, assembly and dignity. It is essential reading for anyone who fears digital technology will lead to the ‘Big Brother’ state.

 
Selected articles
and chapters in books
 

'Cyberspace Regulation' in D Levi-Faur(ed), Handbook On The Politics Of Regulation (Edward Elgar, 2011)

'Transparency, Scrutiny and Responsiveness: Fashioning a Private Space within the Information Society' (2011) 82 The Political Quarterly 509

'Nodes and Gravity in Virtual Space' (2011) 5 Legisprudence 195

In 1996 John Perry Barlow made his now infamous Declaration of Independence for Cyberspace. In this the cyberlibertarian ethos was laid out: We must declare our virtual selves immune to your sovereignty, even as we continue to consent to your rule over our bodies. We will spread ourselves across the Planet so that no one can arrest our thoughts. Since that date much has changed. The work of a number of US cyberpaternalist philosophers such as Jonathan Zittrain, Jack Goldsmith, Joel Reidenberg, Yochai Benkler and most famously Lawrence Lessig has illustrated the fundamental weaknesses in Barlow's (and therefore cyberlibertarianism's) basic premises. This does not mean though that because one can be controlled in cyberspace, one ought to be controlled or even one will be controlled. The distinction is between the ability to control and the effectiveness and legitimacy of control mechanisms. It is this distinction which is at the heart of network communitarianism and which is likely to come more to the fore as the network is replaced with the cloud, always on data, augmented reality and mobile data communications. The key issue for regulators now is the strength of the network and the ability of regulators to control within the network. Building upon previous regulatory designs of the author and taking account of nodal governance theory as developed by Clifford Shearing and Julia Black, this paper aims to demonstrate that the key to building effective and legitimate regulation in the virtual space is to recognise and harness key nodal connections and key nodes themselves. It will demonstrate how the cybercommunity functions as both a community and a group of individual nodes and will seek to develop a theory of regulatory gravity in which the relative communicative power of various nodes may be modelled to take account of the effectiveness and legitimacy of a regulatory intervention.

'Volume Litigation: More Harmful than Helpful?' Computers and Law 2009, 20(6), 43-45

'Symbiotic Regulation'  Vol.26 (2) The John Marshall Journal of Computer & Information Law 207 (October 2009)

In this paper the author examines the development and design of regulatory structures in Cyberspace. The paper considers and models how all forms of control – including design and market controls, as well as traditional command and control regulation are to be applied within the complex and flexible environment of Cyberspace. Drawing on the work of Cyber-regulatory theorists such as Yochai Benkler, Joel Reidenberg and Lawrence Lessig and matching it with an examination of social ordering from the English Peasant’s Revolt to the more modern theories of Jurgen Habermas and Nicklaus Luhmann this paper suggests a model of Cyber-regulation which acknowledges its true complexity. It further suggests how this model may be utilized by both regulators and regulatory theorists in our attempts to design a more comprehensive regulatory strategy for Cyberspace.

'The Reclassification of Extreme Pornographic Images' (2009) 72 Modern Law Review, 73-90

Legal controls over the importation and supply of pornographic imagery promulgated nearly half a century ago in the Obscene Publications Acts have proven to be inadequate to deal with the challenge of the internet age. With pornographic imagery more readily accessible in the UK than at any time in our history, legislators have been faced with the challenge of stemming the tide. One particular problem has been the ready accessibility of extreme images which mix sex and violence or which portray necrophilia or bestiality. This article examines the Government’s attempt to control the availability of such material through s.63 of the Criminal Justice and Immigration Act 2008, which criminalises possession of such images. It begins by examining the consultation process and concludes that an underlying public policy objective was the root of the new offence despite the lack of a clear mandate for such a policy. The article then examines whether this weakness in the foundations for the proposed new offence caused the proposal to be substantially amended during the Committee Stage of the Criminal Justice and Immigration Bill: to the extent that the final version of s.63 substantially fails to meet the original public policy objective. The article concludes by asking whether s.63 may have unintended consequences in that it fails to criminalise some of the more extreme examples of violent pornography while criminalising consensual BDSM images, and questions whether s.63 will be enforceable in any meaningful way.

'Conceptualising the Post-Regulatory (Cyber)state.', 287-315 in Brownsword R. & Yeung K. (eds) Regulating Technologies : Legal Futures, Regulatory Frames and Technological Fixes, Hart, Oxford, 2008.

As our understanding of the mechanisms of control in Cyberspace evolves we see that that previously simplistic view which imagined Cyberspace as a place of rigid regulatory structures where environmental (or code-based)controls would rule supreme fails to account for the complexity of social and cultural transactions in Cyberspace.In this paper Murray seeks to combine theories of decentred or multi-nodal regulation with social network theory to explain more fully how regulation succeeds or fails in the digital environment. This leads to a proposal for a new way of looking at regulatory settlements in Cyberspace which rely upon symbiotic regulation rather than command and control regulation. 

‘Contracting Electronically in the Shadow of the E-Commerce Directive’ in Edwards (ed), The New Legal Framework for E-Commerce (Oxford: Hart, December 2005)

The E Commerce Directive Dir.2000/31/EC provides for harmonization of electronic contracting in the European Union. Central to this programme is equivalence for electronic communications and harmonization of the contractual trigger. Articles 9-11 are the key provisions dealing with these issues. In this paper Andrew Murray examines the effectiveness of these provisions and the United Kingdom’s adoption of these provisions through Electronic Commerce (EC Directive) Regulations 2002 SI 2002/2013). In particular he challenges the assumption of the DTI that Section 8 of the Electronic Communications Act 2000 meets the requirements of Article 9.

‘Should States Have a Right to Informational Privacy?’ in Klang & Murray (eds.), Human Rights in the Digital Age (London: Glasshouse, January 2005)

Individual privacy protection is an important issue in the digital age, but questions also need to be asked about whether states should have a right to privacy. As the Internet spreads, there are increasing calls for informational transparency on the part of the state, but as government services go online, the author suggests that there are strong arguments in favour of more, rather than, less state privacy. The convergence of digital technology is providing numerous outlets for digital media. The author suggests that the growing capacity for information gathering and transmission means that the ‘State is paralysed by fear’ and its response is ‘spin’. Arguing from Edward Shils’ contention that modern democracy depends upon a ‘state of political civility’, he indicates that it is becoming more and more difficult for the State to manage its relationship with the media. Individuals who embody the precepts of the State may benefit from a greater emphasis on personal autonomy, emotional release, self-evaluation, and protected communication. In the UK much emphasis is given to media management and the co-ordination of information as a result of unrelenting media coverage of the government’s actions. As a result the author argues in favour of an open debate about the feasibility of providing privacy protection for the State as an antidote to the politics of ‘spin’.

'La Regulacion de Los Contratos Electronicos: Una Comparación Entre La Posicion Europea y Norteamericana' [2004] 2 Foro de Derecho Mercantil Revista Internacional 75-97 (Reprinted [2005] 1 Revista de Derecho de la Empresa 119-140)

The development of on-line retailing (or e-tailing) is an essential element of the commercial development of Cyberspace and has provided the foundation of a flourishing online business community. The ability to enter into and perform contracts online is at the heart of this development. Without the certainty offered by a legal obligation to supply goods or services consumers may feel exposed, leading to faltering consumer confidence in electronic commerce with potentially harmful economic consequences. This paper compares how the two leading e-commerce trade blocs, the European Union and the United States have dealt with these challenges. It will highlight the advantages and disadvantages of each and will make recommendations which may benefit Latin American nations in developing an e-contracting regime.

‘Regulation and Rights in Networked Space’(2003) 30 Journal of Law and Society 187-216.2

The Internet is often described as inherently free from regulation; a space where freedoms and liberties are guaranteed by the design of the network environment. The naivety of this view has, however, been exposed by commentators such as Shapiro, Reidenberg, and Lessig who have clearly demonstrated the inherent regulability of networked space. The question no longer is: can networked space be regulated? but rather, how and by whom is it regulated? This paper examines the regulation of rights in networked space. Property rights and rights to free speech, or free expression, are examined in relation to a number of issues that have emerged in the networked environment, or cyberspace. Its aim is to examine whether the embryonic regulatory structure of cyberspace, which has the advantage of starting with a completely clean slate, is sufficiently sympathetic to the unique qualities of this fledgling jurisdiction.

‘Controlling the New Media: Hybrid Responses to New Forms of Power’ (2002) 65 Modern Law Review 491-516 (with Colin Scott)

The development of new media industries, stimulated by the technology of digitalisation, has thrown up an important literature on mechanisms for regulation and control. In this article we elaborate on and develop Lawrence Lessig’s ‘modalities of regulation’ analysis. As we reconceive them the four basic control forms are premised upon hierarchy, competition, community and design and can be deployed in fifteen pure and hybrid forms. This analysis is enriched through elaborating on the essential elements of control systems (standard–setting, monitoring and behaviour modification) to demonstrate the importance and variety of hybrid forms that real–world control systems take in the new media domains. Although the article does not provide any universal prescriptions as to which control forms are likely to be most appropriate in particular domains, it does provide a richer analytical base both for understanding existing control mechanisms and the potential for using greater variety. The development of regulatory regimes which are both legitimate and effective in any given domain is likely to require sensitivity to the particular context and culture of both the domain and the jurisdiction within which it is located.

‘The Use of Trade Marks as Meta Tags: Defining the Boundaries’ [2000] 8 International Journal of Law and Information Technology 263-284.

Top ranked returns on popular search engines such as Yahoo and Lycos could become the virtual equivalent of a prime time television advert. The value of judicious meta tagging could therefore be substantial. This paper examines the emerging meta tag/trade mark jurisprudence. It suggests that following the decision of Playboy Enterprises v. Welles (SD Cal. Filed 1 December 1999) a ‘fair use’ loophole may have emerged allowing competitors to legally exploit their competitor's trade name or mark when meta tagging their web site. This paper examines this potential loophole and evaluates whether the practice of competitive meta tagging may emerge.