Digital Agenda for Europe
A Europe 2020 Initiative

The future of the Internet as a legal space

Discussion

Another key issue from the Discussion Paper we'd like to debate is the Internet as a legal space. The Internet poses a series of unresolved challenges for the application of law based on national jurisdictions or international law. Moreover, many activitires on the Internet are increasingly governed by contractual arrangements between private companies and users on the Internet and create conflicts between local law and private norms and requirements.

In your view, is the current framework of international law sufficiently suited to the Internet?

Which possible areas for improvement do you see as the most urgent?

How do you think that discussions and solutions to these challenges should be designed?

We would like to read your thoughts on how to move forward!

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Comments

's picture

Due to mass surveillance operations recently reveled, I believe that the real question is not whether the international community is heading to a global principle-based framework but how the international community is planning to regulate the Internet and most importantly what Europe's role will be. Truth is that, being a powerful economic engine and a positive social force, the Internet has become a powerful tool and its positive or negative use depends on the user. Thus, lacking a clear international legal status Internet legal framework is open to national practices and local interpretation of private law.

Given ITU's dead end in December 2012 regarding Internet governance, ICANN is considered to target the broad representation of the global Internet community. The ITU's recently proposed international treaty, reviewing the international agreements of telecom sector and aiming to expand its regulatory authority to the Internet, was an unsuccessful attempt of moving the ITU into the Internet and the content it conveys. This attempt failed on the grounds of Internet freedom and openness. The argument was that a treaty should not extend to content, or implicitly or explicitly undermine the principles that have made the Internet so beneficial and that bureaucrats should not be able to read every text, image, tune, text, spreadsheet, or whatever was sent or received through the Internet. Ironically, the number of governments censoring the Internet content is still growing.

Internet prospered precisely because governments, for the most part, allowed the Internet to grow organically, with civil society, academia, private sector and voluntary standards bodies collaborating on development, operation and governance. However, there are still legal gaps in the area of international practice in terms of Intellectual Property and human rights (such as the freedom of speech), E-commerce and taxation of digital companies, privacy, data protection and network security regarding internet policy. Agreement is never going to be easy.

The ICANN's (the nonprofit private organization overseeing a number of Internet-related tasks) bylaws establish the Governmental Advisory Committee whose role is to consider and provide advice on the activities of ICANN as they relate to the concerns of governments, particularly matters where there may be an interaction between ICANN’s policies and various laws and international agreements or where they may affect public policy issues. Membership in the GAC is open to all national governments and each member country appoints one accredited representative to the GAC who must hold a formal official position in the member’s government. The GAC plays a prominent role in the expansion of generic top-level domain names (gTLDs), has the right under the bylaws to “raise an issue for policy development” and can provide specific advice on the need to conduct appropriate economic studies, on stability and security (such as, root scaling), on trademark protection and on public order and morality. It could be that the GAC has an interest in providing a government view on a broader range of topics, and if informed about a broader set of policy activities, the GAC might identify public policy implications or considerations not previously articulated.

In order for ICANN to maintain multilateral accountability appropriate levels of transparency are required including a continuous assessment and improvement of ICANN Board's governance which shall include an ongoing evaluation of Board performance, the Board selection process, the extent to which Board composition meets, ICANN's present and future needs and the consideration of an appeal mechanism for Board decisions. In addition, assessing the role and effectiveness of the GAC and its interaction with the Board is also critical. Furthermore, continually assessing and improving the processes by which ICANN receives public input and the extent to which ICANN's decisions are embraced, supported and accepted by the public and the Internet community is also important. ICANN should compare its accountability and transparency-related efforts to international entities' best practices. Moreover, the GAC should agree to define the term consensus for the benefit of the entire ICANN community and should describe the manner by which consensus is achieved and recognized.

Governments play an extremely important role in the ICANN multi-stakeholder environment. Currently, more than 100 nations have representatives on the Governmental Advisory Committee but not all are heavily engaged or committed to ICANN or the multi- stakeholder model. Some governments advocate for ICANN’s role to be subsumed into an Intergovernmental organization (IGO) such as the UN or the ITU. Many others have not declared a position and others appear not to be aware of ICANN and the role it plays. For some GAC members, it is not clear how much support they have for their involvement with ICANN from their governments. Increasing GAC membership and making it easier for GAC members to participate in ICANN is important for the future of Internet policy. Progress in this area will require joint dialog, planning and execution by the Board and GAC.

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's picture

The statement "the Internet poses a series of unresolved challenges for the application of law based on national jurisdictions or international law" is wildy exagerated. In reality, everything that is illegal offline is illegal online, and the unresolved challegenges are mostly about jurisdiction for certain specific issues, such as defamation and taxation. In general, courts have no problems in applying existing laws to Internet matters and legislators have no problems in adapting laws as needed to clarify matters (such as jurisdiction for child abuse cases). I summarize this situation, with citations to well known works, in Hill, Richard (2014), “The Internet, its governance, and the multi-stakeholder model”, Info, Vol. 16 No 1, (forthcoming).

Regarding taxation, see Tax Annex to the G20 Leaders' St. Petersburg Declaration (6 September 2013), Annex, Action 1.

Apart from jurisdictional issues, there is the general issue of the proper role of governments in the governance of Internet, in particular regarding critical Internet resources, see for example Mueller, Milton (2010), Networks and States: The Global Politics of Internet Governance, MIT Press, p. 239 ff.

In particular there is the issue of the asymmetric role of the US government, and this should be addressed.

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Ioanna Bantouna's picture

While I definitely agree with the statement that "eveything that is illegal offline is illegal online", I disagree with the interpretation of such a statement. I don't think that the legal gaps of international law are limited to questions of defamation and taxation. The legal policy of each State varies in different sectors in terms of international law. The legal framework of each State around the world is formed based on its social and economic interests and, thus, issues like policy and data protection or the freedom of speech are treated differently by the law of each state. EU has a codified, for the most part, legal framework due to multiple EU Regulations and Directives but this EU legal framework is only binding for the Member States. Different legal jurisdictions are under no legal obligation to adopt the EU rule of law. And yes, I agree that it is a matter of jurisdiction. Yet again, Internet has no boundaries. Thus, my point of view is that there could be contractual arrangements between private companies and users on the Internet that can create conflicts between different national laws. For example, when the user accepts the terms of use/ service agreement, he or she signs a contract with the company providing the services and when it comes to digital companies such as Facebook, Istangram or other social media services, those companies have a legal right to the user's content depending on the terms of their service. The question is what happens if the user's legal framework is different from the articles included in the company's terms of service. Most of the times, the digital companies add a jurisdictional term under which all controversies between the user and the company are under the company's national law and under the company's sole national jurisdiction. Put it simply, even if the user would like to sue the company on i.e. privacy, or data protection grounds, he or she can only do it in American soil (if we are talking about an American company) and the applicable law won't be i.e. the European law (presumedly that the user is European) but the American law. On my point of view, such examples raise some questions of international law.

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Andrea Glorioso's picture

Richard, thank you for your thoughtful intervention. Could you clarify if a "working paper" version of the article you mention (“The Internet, its governance, and the multi-stakeholder model”, Info, Vol. 16 No 1, (forthcoming)) is already available online? Alternatively (or in addition!) would you be willing to summarise the main highlights of that article on this space?

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Andrea Glorioso's picture

Ioanna, thanks for sharing your views. Could I ask you to elaborate on what do you think would be the most effective ways to address the questions of international law you mention in your comment?

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Ioanna Bantouna's picture

When it comes to such questions of law, I would say it depends on how strict is the language used in each company's terms of use in order to address the issue. Provided there is offer, acceptance and consideration, a contact is considered to be valid under American common law. However, things are getting a little more complicated when the company is proposing and finally making alterations to its terms of use while the user is objecting to the new terms within a reasonable time or the terms materially alter the contact since the accepted terms must mirror the terms of the offer for a valid acceptance. That is the case most of the times with privacy issues. Companies usually revise terms of use by changing the terms or by adding different terms and thus the legal status of the old users is ambiguous. For example, under Facebook's clause of June 8, 2012: "Your continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms". What happens, though, if the user is not aware of the changed terms? While the EU law might not be expressly applicable in American soil, the US - EU Safe Harbor is considered to be a binding law in US. The Safe Harbor privacy principles require the organizations to notify individuals about the purposes for which they collect and use information about them and to give individuals the opportunity to choose (opt out) whether their personal information will be disclosed to a third party or used for a purpose incompatible with the purpose for which it was originally collected or subsequently authorized by the individual. The Safe Harbor privacy principles also require, affirmative or explicit (opt in) choice to be given for sensitive information, if the information is to be disclosed to a third party or used for a purpose other than its original purpose or the purpose authorized subsequently by the individual. An organization could meet the Safe Harbor requirements by complying with government supervisory authorities or by committing to cooperate with the EU data protection authorities. In addition, the US Federal Trade Commission, comparable US government agencies, and/or the US states may provide overarching government enforcement of the Safe Harbor Privacy Principles. Unfortunately, the US - EU Safe Harbor is a voluntary scheme. While e.g. Google and Facebook are under Safe Harbor's application, many popular services used by European consumers (such as Instagram) have not joined it. Each company might require a different policy path. I keep wondering what would happen if the EU would actually require those companies working with EU clients to apply the EU Safe Harbor under an involuntary basis. Furthermore, as I implied above, in a majority of cases the user is not reading thoroughly those terms of use every time he or she is subscribing to a service or every time that those terms are revised in order to act as a contracting party. Thus, a public awareness campaign on cyber security and privacy should be a good policy start. Moreover, employing policy in layers might also be functional. Some terms of use are so against consumers' privacy that the termination of services might be needed. This way of protection is usually considered as consumer's last resort in order to protect his or her privacy. The concept behind such a movement is the alteration of the company's market effect, a company would seem having second thoughts regarding its policy if it is under the risk of losing massive clients/ users and thus lose profit. Another issue to be examined is each company's willingness to cooperate with EU's authorities regarding privacy issues. Finally, other than the enforcement aspect under American jurisdiction with FTC's cooperation, having an open dialogue with other privacy groups of American origin or addressing the issues to ICANN might also be profitable.

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's picture

Thank you for your interest in my work. You can find an early version of that paper, as well as other papers by me, at http://www.apig.ch/news . The paper in question was based on the following five papers that you will find on the cited web site:
* Internet as a paradigm
* Defining the Internet
* Key characteristics that distinguish the Internet
* The Internet's multi-stakeholder model
* The way forward for Internet governance?

The paper can be summarized as follows:

The collection of protocols and services commonly referred to as the Internet is unique because of a combination of factors, which are not exactly the ones that are most often mentioned. Since the Internet is unique, traditional governance mechanisms are not always appropriate, and indeed the governance of the Internet has, to date, been provided by a complex mixture of national measures (some laissez-faire and some restrictive), extra-territorial assertions of national powers, collaborative arrangements between technologists, and collaboration between commercial interests. This governance model has worked well in some areas, less well in other areas.
This paper presents some definitions of Internet, discusses their significance for Internet governance, and discusses the implications of the so-called multi-stakeholder model of Internet governance; it is suggested that that model can be improved, in particular by increasing the role of more traditional governance mechanisms such as intergovernmental organizations.

Best,
Richard

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's picture

I agree with most of what you say, but I don't see any inconsistency with what I said earlier, which is that there some jurisdictional issues can be problematic. The specific example you give is excellent, but the real issue is not one of jurisdiction, but rather that companies can choose a favorable jurisdiction and that this may be unfavorable to the user. You are correct that contracts such as the one you mention specify US courts and US law, but, in many jurisdictions (in particular in Europe) an individual private consumer cannot waive his/her right to sue in his/her national court under his/her national law. So in fact a European consumer could initiate an action in his/her country against the US entity asking for application of his/her national law. However, it is not clear whether there would be a substantive case, that is, whether the lawsuit would be worth pursuing. As always in legal matters, it depends, and it depends on the specifc facts. To be clear: is there a violation of the consumer's national law?

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Ioanna Bantouna's picture

Firstly, I would like to apologize for my late reply but I just saw your post. In addition, I would like to embrace this fruitful and essential dialogue in search of meaningful answers to contradictory issues and questions of law of the digital reality. As you correctly mentioned, in legal matters the decision depends on the specific facts of the case and thus the substance of an alleged violation based on consumer's law depends on the merits of the case. Yet again, the first claim that the US entity will probably make in such a case would refer to the inadmissibility of the case before the European Courts based on the contract's jurisdictional clause signed by the consumer before addressing the national law itself. If the Court of consumer's origin were to decline to hear the case due to procedural/ jurisdictional inadmissibility, the company does not have to address the essence of the law itself. Another issue that bothers me in such hypos is the enforcement element. Even if the lawsuit would be worth pursuing and the national Court were to decide in favor of the European plaintiff, what are the odds of enforcing such a ruling in a non European soil under an unfavorable to the European user contract? Furthermore, imagine the possible dead end scenario of two contradictory Court Judgements concerning the same case, one decided under the user's national law in European soil by a European Judge (presumably the user is European) and another one decided under the company's jurisdictional clause by an American Judge in US (presumably the company is of American origin). That is why I totally agree with you that some jurisdictional issues can be problematic depending on the language used in each contract and depending on the company's good faith. Moreover, that is the reason why I believe that there are some questions of international law to be addressed in this particular field of law.

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