Dealing with Digital Property in Civil Litigation

Abstract

This article aims to shed light on the conceptual, doctrinal and practical issues regarding digital property law by weaving together several facets of the subject. Legislative schemes for the digital environment have emerged to cover some issues but not others. The debate about further statutory reform to deal with digital property is ongoing. Litigated cases in Canada are becoming increasingly common, and those that arise tend to be complex and significant. With this article, we facilitate better understanding of digital property issues among the bench and the bar, and offer a principled approach to legal policymakers grappling with law reform in this context. The approach we put forward is one based on technological neutrality, in the substantive functional sense not the minimalist notion of media neutrality.

We begin by providing important historical perspective on the debate about digital property rights, tracing its evolution over the past 20 years. We then canvass six distinct areas of law where digital property issues are engaged: the legal definition of digital assets as property; the protection of digital property against damage; dealing with digital property in life and on death; digital property and privacy rights; jurisdiction over cyberspace; and the technological regulation of digital property.

After discussing the most significant legal developments during the past two decades, we conclude with strategic insights for judges, practitioners and others faced with digital property issues in the future. We show how substantive technological neutrality can serve as a guiding principle connecting each of the digital property doctrines we review.

Keywords: Property, Cyberspace, Internet, Technology, Domain Names, Trespass, Privacy, Estates, Jurisdiction