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Legal framework, jurisdiction, and enforcement in Internet governance

Page history last edited by Mary Murphy 6 years, 8 months ago

Speakers

 

Moderator: Jacques de Werra, Professor, Law School, University of Geneva
Rolf Weber, Professor, University of Zurich
Joe Cannataci, Professor, University of Groningen
Mira Burri, Senior Research Fellow, World Trade Institute & Lecturer, University of Bern
Konstantinos Komaitis, Policy Advisor, Internet Society Xianhong Hu, Program Specialist, Division for Freedom of Expression and Media Development, UNESCO

 

Outline

 

The Internet does not function in a legal vacuum. Increasingly, it is perceived that what is (il)legal offline is (il)legal online. The UN Human Rights Council made this principle explicit: ‘The same rights that people have offline must also be protected online.’ Thus, most Internet issues are already regulated in the offline environment (e.g. jurisdiction, copyright, trademark, labour law).The main challenge is how to apply these rules to Internet transactions, particularly in view of transborder aspects and the speed of Internet activities. At the preparatory seminar for the Conference, the idea of legal innovation with wisdom was suggested. It means that there is a need for innovation for the Internet, which should not ignore  the wisdom of the legal profession gathered over centuries in regulating conflicts and ensuring order in human society.

The session will focus on the following questions:

  • Is there any area where the ‘offline/online principle’ cannot be applied and there will be a need for new substantive rules for the Internet?
  •  What are the specific challenges for applying  existing legal rules on the Internet?
  •  How do we innovate with wisdom? What are the possible innovations?

 

Session notes

 

Legal frameworks: Whose responsibilities?

 

Konstantinos Komaitis, Policy Advisor at the Internet Society (ISOC), began by pointing out that discussions on so-called cyberlaw are not new. His short overview of the history of cyberlaw showed that questions in this area have been asked since the mid-1990s. At this early stage, legal rules in cyberspace were described as the ‘law of the horse’. The mid-90s was also the time of intense academic debate: academics believed that with the emergence of the Internet, new legal rules would appear. Interestingly, during the first five years of the twenty-first century, the predominant opinion was that existing laws of the offline world could easily be adapted to the online world. ‘But today we are a bit wiser’, says Komaitis. Today, we face new challenges, and one of the main questions is what sort of legal rules can be applied to online behaviour. According to Komaitis, we are seeing the emergence of communities which come together and establish (private) systems which alert, educate, and punish Internet subscribers, for example the Copyright Alert System – a voluntary initiative which involves different stakeholders.

 

Rolf Weber from the University of Zurich provided a short overview on private law issues. He explained that some laws apply only in the offline world, and others only in the online world. Rules on marriage and divorce, for example, are to be found only in the offline world, whereas electronic signature is an issue solely applicable in the online world. In the area of electronic transactions between people (e.g. e-signature) new laws are definitely needed, according to Weber.

 

However, those issues are in general less sensitive and political than, for example, personal rights (i.e. the right to be forgotten). Regarding e-contracting, there is the UN Convention of 2005 on the Use of Electronic Communications in International Contracts. The application of (already existing) laws is always an issue. The most evident problem seems to be jurisdiction, according to Weber.

 

According to Mira Burri, Senior Research Fellow at the World Trade Institute and Lecturer at the University of Bern, the persistence of the ‘online-offline dilemma’ in international trade law is mainly due to the fact that there have been no changes in World Trade Organization (WTO) laws since the 1990s. The prevailing picture is too ‘rosy’, according to Burri. We are facing numerous problems, inconsistencies, and uncertainties, for example in the areas of online music and digital games. Depending on the definition, they are classified either as goods or as services, and are therefore subject to very different (hard or soft) laws. The WTO is aware of these problems and has done quite a bit, said Burri. But still, there is no political framework; so we find ourselves in a deadlock. In consideration of the fact that the international trade law regime is very fragmented, the big question is whether we might need a multilateral framework for those rules and laws.

 

Xianhong Hu, Program Specialist for the Division for Freedom of Expression and Media Development at UNESCO, presented the basic position of UNESCO regarding IG, i.e., the concept of Internet universality based on four key principles: The Internet should be human rights-based, open, accessible to all, and nurtured by multistakeholder participation. She also presented the current comprehensive study on the Internet, mandated to UNESCO by its 195 member states. The study focuses on four areas: access to information and knowledge, freedom of expression, privacy, and ethical dimensions of the information society. It takes into account cross-cutting issues as well as options for future actions on how UNESCO can contribute its ‘bricks’ to the IG building.

 

From a UN perspective, as Hu underlined, current international human rights law seems sufficient to provide a framework for human rights issues. On the level of practice and implementation, however, she identified a great lack of procedures for the implementation of law. Specific challenges pose new issues, such as the right to be forgotten, or conflicts between rights. The right for privacy may challenge, amongst others, the public right of access to information and the sharing of memory, as fostered by the UNESCO programme Memory of the World. Further challenges are the transnational character, i.e. the different legal framework in different countries for data protection. Internet-related developments will also deepen the gap between North and South, a challenge that needs to be addressed. In regard to regulating law, a multistakeholder approach is necessary, according to Hu. She identified new possibilities in emerging global mechanisms, where intermediaries lead initiatives in order to reach consensus.

 

Joe Cannataci, Professor at the University of Groningen, in contrast to Komaitis, highlighted that there were attempts to apply law to the Internet even ten years before 1996, when addressing ‘computer crimes’. However, the legal framework today is still minimalistic, complex, confusing, and inadequate. Moreover, ‘enforcement is a nightmare and downright impossible.’ Besides a lot of talk, little has been done in the last 15 years. Cannataci, who was asked to focus on data protection, made a strong point that the laws are not sufficient and that there is a problem with jurisdiction, also as a result of the failure of the Tunis Agenda. This agenda has neither led to a multilateral convention nor achieved legal remedies. A number of countries are blocking the discussion (for commercial or other reasons), as seen in Brussels multiple times. But it should not be forgotten that the Internet is not only a place for commerce, but also for cyber war. Furthermore, research on surveillance issues amongst European citizens has shown that citizens are in favour of a legal framework. He concluded that many of us think we know what should be done, which is – in terms of legal logic at least – to establish a set of rules. This it is not going to happen very soon, and will most likely happen through a sector-to-sector approach. Some issues might lend themselves to international consensus. Other solutions are too ambitious, according to Cannataci.

 

Participants’ questions focused on the responsibility to make citizens aware of privacy and mass surveillance issues. Cannataci and Hu agreed that the often ‘irrational’ behaviour of Internet users concerning this issue is both a matter of educational awareness, for which governments are responsible, but also, something for which we are all responsible.

 

Participants also asked about surveillance: We know that citizens do not want mass surveillance: why is this wish not transferred up to the higher spheres of the government? Cannataci responded that first, citizens may be upset about privacy issues, but their behaviour sometimes indicates other priorities. Second, at least pre-Snowden, championing privacy had not won any votes yet. Third, awareness of this concern is still growing. There is very little awareness of how much privacy people are signing away. There is a commitment to discuss this issue, for example within the European Union, but it must be addressed internationally.

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