Jurisdiction on the net
For many years there has been a close-to-philosophical debate about what the cross-border nature of the internet meant and how national law should deal with it.
But with more and more court cases and new legislative efforts, time has come to find practical solutions. "We have all agreed that international law applies to the internet. Now we have to agree on how,“ said Marina Kaljurand, Undersecretary for Political Affairs at Estonia's Ministry of Foreign Affairs during the EuroDIG 2015 in Sofia, Bulgaria. A panel organised by the Internet Jurisdiction Project took a quick look on possible solutions and some nascent concepts.
A case before a Paris Court about a painting by Gustave Courbet taken down by Facebook, US courts seeking access to user data stored on Microsoft servers in Ireland – increasingly courts have started to "assert jurisdiction“ over internet platforms not physically present or not headquartered in their jurisdiction - the cases certainly underline the question of how to deal with the cross-border nature of the internet and jurisdiction. This question has "arrived at the core of internet governance discussions,“ Paul Fehlinger, manager of the Paris-based Internet & Jurisdiction Project said in opening the discussion in Sofia.
Kostas Rossoglou, Head of EU Public Policy at the crowd-source review and online reservation portal Yelp said the question of jurisdiction and applicable law arouse constantly using services like Yelp. When he made a comment about a restaurant, that the restaurant owner did not like, what law applied where the company internet service company is headquartered in the US and the restaurant somewhere in the EU? Some headaches for the intermediaries resulted from the problem that the discussion was "hi-jacked by copyright“ with distinctions on the lawfulness of the content per se rather than its lawful use.
Rossoglou reminded that some high-level principles on intermediary liability have existed for some time. "The challenge is to operationally define what are the norms,“ he said.
Manila Principles and User Guide
One attempt to operationalise the many priniple sets available has been made by civil society organisations. Gabrielle Guillemin, Legal Officer at Article 19, pointed to the so called Manila principles. Intermediaries should not be held liable when not directly taking part in content postings. Instead, notice-and-takedown regimes for content which could have a chilling effect are put to the fore. The principles also request transparency and due process from the various legal systems. The Manila principles were an attempt to keep up with basic human rights while not touching substantive law.
The effort, while on intermediaries, would protect users who were "not able to cope“, Guillemin said. Users often face an "incredibly complex legal environment“ with platforms like Facebook, Youtube or Twitter subject to the law of their country of origin. When they expressed themselves online, users might be liable or even violate criminal law for defamatory acts, for instance. Not even in the 28 member states of relatively harmonised EU is navigation on the web easy. Users and intermediaries have to live with the fact that the EU e-commerce Directive was "implemented in very different ways.“ Notions such as "actual knowledge“ and "a notice“ were open to different interpretations.
Another effort to help users navigate was presented by Elvana Thaci, Administrator at the Directorate General of Human Rights and Legal Affairs for the Information Society, Media & Data Protection at the Coucil of Europe, one of the founding organisations of the EuroDIG. The "Guide to human rights for Internet users“ gives some more or less practical hints on access and non discrimination, freedom of expression and information, assembly, association and participation, privacy and data protection, education and literacy, children and young people, effective remedies and redress. The guidelines should be embedded, Thaci said, in frameworks that rule over the relationship between users and platforms“. Human rights could help as a basic guide in the cross-border tussles, Thaci said.
For Bertrand de la Chapelle, founder of the Internet & Jurisdiction Project, cross-border mechanims for remedies and redress are just not yet conceived. Thaci hinted at international private law as a source of inspiration and experience. "We need more lawyers in the discussion," she said.
Treaties or coexistence in the network of networks
For the European Commission, which has considerably stepped up its engagement with the EuroDIG this year - even pointing to EuroDIG funding it intended to put on the table, Megan Richards, Director for Coordination, at the Directorate General Connect, and member in ICANN's Governmental Advisory Committee, offered the planned data protection regulation as an effort for better harmonisation. The regulation has to be implemented as such in all member states – as compared to a directive - is expected to help cross-border economic activities.
"If there is one regulation applied this makes our life easier,“ she said. Other issues under discussion, for example the removal of unjustified geo-blocking in the copyright reform or the harmonisation of common contract provisions were under way, Richards said. At the same time, Richards challenged the idea that there was one internet. "It is in fact a network of networks.“ Certainly it was not possible to come up with one comprehensive solution to the net cross-border jurisdiction problems. Richards at the same time distinguished between multi-stakeholder net governance on the one side and state driven efforts to find common rules, as for example on cybercrime.
The question if an international treaty approach was the right answer to cross border tussles or the discussion should focus on operational principles could only be answered on a "case-by-case“ basis, said Thaci. A distinction could be made by harmonisation on substance and harmonisaton of procedures.
Fehlinger summarised that on some rare issues, such as child abuse images on the internet, "it is likely to achieve an international, universal consensus between governments through traditional Westphalian cooperation mechanism such as treaties.“ On issues related to hate speech or defamation, it was on the other hand highly unlikely that an international consensus can be achieved. This left the community advancing with baby steps towards "harmonised procedures, so called policy standards, to guarantee due process, accountability and transparency across borders and enable the digital coexistence of different national laws in shared cross-border online spaces,“ Fehlinger said.