The dramatic growth and development of the Internet has already thrown up a stream of fascinating and difficult legal issues. The diet of Internet lawyers is rich in novel situations and concepts and it is easy to stay immersed in the day-to-day, grappling with clients’ concerns and sorting out their problems. Over time, however, more deep-seated issues have started to reveal themselves. In this article I would like to take a step back from the daily round and explore one of them: the interaction of traditional methods of making new law internationally and the demands of life in the online world.
I will first explore the traditional model of international treaty obligations to see if it is fit for purpose for the information age. I will then examine the underlying assumption on which this model is based, namely the power of the sovereign state and look at the limits to the effectiveness of that power online. Finally, I will explore how governments can promote the rule of law on the Internet and I will propose a new constitutional convention for the online world.
International Treaties
The starting point for the discussion is the advantages and disadvantages of international treaties. These are the means by which governments have traditionally ordered relations between themselves, their citizens and other legal persons. Most of you will be familiar with the steps taken pursuant to treaties to address certain legal aspects of the Internet, in particular those dealing with intellectual property. One example is the Copyright Treaty and the Performances and Phonograms Treaty, known together as the WIPO Internet Treaties, promoted by the World Intellectual Property Organisation, which update the Berne and Rome conventions.[1] Another, more politically charged, example is the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) administered by the World Trade Organisation. This sets out minimum standards for protection of intellectual property to be observed by signatories in their domestic laws, along with enforcement and remedies for infringement.[2]
A third example is the treaties concerning the law of the sea and of space, both sponsored by the United Nations. On the face of it these are potentially the most interesting from the perspective of the Internet, as they both concern the adoption of rules to regulate human activity where there was no previous international agreement. Space in particular was terra nova, a new found land with no legal tradition or prior law. The most widely adopted treaty on space is the Outer Space Treaty, concluded in 1967 and adopted by 99 countries. Its provisions are important, but cover only a handful of issues. In summary, signatories to the treaty agree to use space for peaceful purposes, not to make any national territorial claims on planets or moons and to be responsible for the activities of their own citizens in space.[3]
The use of international treaties as a medium to create a constitution for the information age has the attractions of international validity and settled procedures for negotiation and signature. If, however, we want to use them as a tool for addressing Internet issues, other features of the treaty process are less satisfactory. It is characterised by a very long period of negotiation and subsequent ratification: the Doha round of TRIPS was started in 2001 and despite regular exhortations from most of the governments concerned to conclude the round, it shows no signs of coming to a conclusion.[4] In addition, many treaty organisations have cumbersome decision-making procedures and there is often a lack of effective enforcement of treaty obligations.[5] Progress in the adoption, enforcement and amendment of treaties can also be entirely dictated by the will of successive national governments to carry through what is originally proposed, so results are mixed: the successor to the Outer Space Treaty, the Moon Treaty, is of no practical effect as it has only been ratified by a handful of countries, none of whom carry out manned space exploration.[6]
A more fundamental objection to the treaty process is that the model it incorporates, of sovereign states negotiating on behalf of its citizens with other sovereign states to create mutual rights and obligations, has arguably been rendered obselete by the Internet and the changes it has brought. This is a serious charge and deserves careful analysis.
The Disintermediation of Governments
One well documented effect of the Internet is disintermediation, the removal of intermediate actors from the communication chain, or the value chain. Take books, for instance. Amazon has created a direct relationship with its customer, so that the traditional book shop has been removed from the value chain altogether. Book reviews are posted by users on the Amazon web site, together with ratings for books, and sales statistics are made public, so that book reviewers are displaced as well. More recently, books are now being downloaded in electronic form to be read on hand-held devices, so that publishers are in danger of being disintermediated. Similar examples abound in the fields of software, music, TV and video programming, maps, news and other types of information.[7]
Disintermediation does not apply only to commerce, it can also affect our social and cultural relationships on the Internet. The technology that allows instantaneous mass communication at virtually no cost can become a powerful agent of social change in the political arena. One clear example of how this can work is the election campaign for US president of Barack Obama, where techniques such as viral marketing and online donation of campaign funds gave him a crucial edge over his rivals. Supporters created more than 35,000 online social networking groups based on things such as geographical proximity and shared pop-cultural interests. By the end of the campaign, myBarackObama.com had over 1.5 million accounts.[8]
In pluralist democracies, the Internet encourages what can be termed ‘the democratization of political debate’, in other words the opportunity for small groups and individuals to reach a mass audience and influence the public discussion of political issues.[9] One interesting consequence of this is that it reinforces the trend towards single issue politics and away from traditional political parties. In the UK, in contrast to the United States, online discussion groups, blogs, social networks and political web sites are creating a situation where governments and politicians generally are becoming distanced from the political discourse on the Internet, with limited engagement in the online debate. Efforts by UK politicians to master these new means of communication are seen as simplistic and tend to invite derision: think of Gordon Brown’s YouTube appearance, or David Cameron’s kitchen sink webcam. Whether politicians in the UK can adapt to the online world as successfully as Barack Obama remains to be seen, but the salient point here is that, in the UK at least, government’s and politicians’ grasp of the online world is seen as weak. In the early stages of the development of Internet-related law, governments in many countries were urged to keep away from regulating the online world because it was not clear how it would develop and consequently they could do more harm than good. This view is still the starting point for many commentators.[10]
In addition to this lack of understanding of the Internet as a medium of communication, there is another, more deep-seated issue which limits the role of governments on the Internet. The instantaneous, dynamic and fluid nature of interactions online, at minimal cost to the user, has led to an unprecedented freedom to ignore the constraints of time and place in forming relationships on the Internet and living in the online world generally. This has led to a marginalisation of many of the traditional roles of the state in pluralist democracies on the Internet. Its functions as defender of physical borders, collector of taxes, investigator and prosecutor of criminal activity and protector of individual rights all become a lot more difficult and sometimes impossible to carry out online.[11]
One consequence of this is that governments are searching for points of contact with the Internet, ‘entry points’ to enforce their edicts. In practice this means that each government is becoming increasingly reliant on the ISPs who happen to be situated within its own territory as the easiest and most direct vehicles for online enforcement. The temptation of governments to load all manner of obligations on to ISPs as a way of being seen to be ‘doing something’ about file sharing, defamation, pornography, etc should be closely scrutinised as it could lead to a number of very undesirable consequences. First, it leads to intrusive monitoring of users’ activities on the Internet, with the consequent privacy concerns. Secondly, at the economic level, it leads to massively increased overheads for ISPs in monitoring traffic. Thirdly, it could also lead to ISPs being far more cautious about what they will carry across their networks and a consequent flight by users (and possibly ISPs) to more liberal jurisdictions that are willing to carry material judged unacceptable by their home ISPs, for whatever reason. The end result, ironically, may be even more traffic outside the jurisdiction and therefore outside the control of the government in question.[12]
The third main driver of the disintermediation of government is the growth of what is often known as ‘soft law’ online. This term can be applied to codes of conduct, recommendations, guidelines, declarations of principle and standards that are not legislative instruments but carry authority by virtue of general acceptance within the relevant community. The concept was developed by legal theorists to explain the move by the European Union away from formal legislative instruments, such as regulations, towards less formal means of expression, such as declarations.[13] It has also been applied to the decisions, recommendations and other declaratory statements of organisations such as the United Nations that fall short of formal treaties.[14] It is possible to argue that much of the activity on the Internet is governed by soft law, in the sense of rules and principles created by organisations that have no legal standing (or doubtful legal standing) but carry authority within the relevant community. Examples range from the Requests for Comment produced by the Internet Engineering Task Force to the buyer and seller feedback systems on eBay.
The multiplicity of actors and roles online and the ease with which participants can make their own rules, without the involvement of the state (or even lawyers!) has led to a proliferation of soft law in its widest sense, which individual states have very little influence over. This can be illustrated diagrammatically.
Click on the panel opposite to download the diagram.
The diagram is an attempt to map some of the important issues concerning the Internet that face us today along two axes. The horizontal one shows commercial Internet activity at one end and political and cultural Internet activity at the other. The vertical one shows Internet activities currently primarily controlled by the individual at the bottom and those activities currently primarily controlled by the state at the top. It also shows the ‘direction of travel’ of these issues across the diagram in line with current debate. Some of the well-known Internet-based organisations have also been added to show where their main areas of interest lie on the diagram.
It is an interesting question what other issues ought to be on this diagram and where exactly they should be placed on it, but the general point is this. The top of the diagram, the sphere of government action, doesn’t have a lot of the current issues in it. In addition, those issues which states are addressing tend to be those related to their traditional sphere of operation: financial crime, obscenity and the like. Furthermore, some of the issues that are within its traditional sphere can no longer be effectively dealt with by the state, because the actors concerned are untraceable, or in another country and cannot be brought within that state’s jurisdiction effectively.
A Constitutional Convention for the Information Age
The above analysis demonstrates that there are clear limits to the utility of the traditional model for the creation of international obligations where the Internet is concerned. This relies on sovereign states negotiating the creation of rights and obligations that affect both the state and its citizens (and other legal persons), together with relevant international organisations, over a period of several years, then going through a further process of ratification before the treaty comes into effect. The process of treaty making has such severe deficiencies that we can reject it as a useful model solely because of these.
In addition, the traditional model relies on the states which are bound by a treaty being able to enforce its provisions at national level. As described above, this is becoming increasingly difficult online and consequently it seems that a constitution for the information age based exclusively on agreements between sovereign states is bound to fail. In coming to this conclusion we should not rule out the utility of the traditional model for dealing with specific issues such as fraud, which are squarely within the traditional role of the state, but the limits of this approach are clear.
Although this is a discouraging conclusion, it is not an excuse for doing nothing. If the old models are no longer useful then we should look for new ways of championing the rule of law on the Internet. The answer appears to lie in recognising and embracing soft law as a legitimate source of authority and ultimately of law. Professor Yves Poullet puts this point very well:
‘The law cannot allow itself to be content with deploring the limitations placed on its own enforcement and affirming the essential lawlessness of cyberspace. On the contrary, it must find . . . . an adequate active role. As far as possible it will refer. . . to the normative mechanisms present in the network: the application of principles via self-regulation and technical standardisation. . . it will draw its inspiration for the defining of rules of law, if possible at the international level, from the content of internal network regulation. What we are seeing here. . . .is without doubt the emergence of postmodern law, or . . . a new “network governance paradigm”’’[15].
In other words, governments, lawyers and others should be directing their efforts towards identifying and supporting soft law that reflects the values of the state as enshrined in its constitution and elsewhere in its ‘hard’ laws, then encouraging the growth of soft law and of dispute resolution and other mechanisms that accord with those values. Ultimately the state may recognise soft law that is both sufficiently developed and fully reflects its own values by incorporating it into ‘hard’ law.
How does one set about this task? To quote Professor Poullet again:
‘…this “postmodern law” calls for the creation of new forms of dialogue between diverse ethical and regulatory normative techniques and, more problematically, between the democratic authorities capable of nurturing such a dialogue and placing it at the service of the public interest.’[16]
In the light of this call for a new form of dialogue, I would like to propose not a new constitution for the information age, but a new constitutional convention. This convention would embrace governments, international organisations, Internet-based organisations and groups. By way of illustration, the stated purpose of the convention could be:·
to identify Internet-based organisations and groups governed primarily by soft law·
to identify best practice amongst those organisations and groups in relation to the promotion of the values of individual states and the rule of law generally·
to encourage the adoption of those best practices by other Internet-based organisations and groups·
to identify and implement mechanisms for incentivising those organisations and groups that adopt best practices in the laws of individual states.
The range of potential incentives that could be offered by states for the adoption of best practice is wide, from a simple recognition of best practice (a ‘kite mark’ system) to an enhanced legal status within the country in question, or even direct financial incentives. In a nutshell, states should be using soft power to influence the development of soft law.
Mark Turner is a Partner at Herbert Smith LLP: www.herbertsmith.com
[1] Available at http://www.wipo.int/export/sites/www/treaties/en/ip/wct/pdf/trtdocs_wo033.pdf and http://www.wipo.int/export/sites/www/treaties/en/ip/wppt/pdf/trtdocs_wo034.pdf. For commentary, see Von Lewinski, S. (1997), ‘WIPO diplomatic conference results in two new treaties’, International Review of Intellectual Property and Competition Law, 28(2), pp. 203-208.
[2] Available at http://www.wto.org/english/docs_e/legal_e/27-trips.pdf. For an introduction see Gervais, D.J. (1999), ‘The TRIPs Agreement: interpretation and implementation’, European Intellectual Property Review, 21(3), pp. 156-162. For a fuller commentary see Gervais, D.J. (2008), The TRIPs Agreement: Drafting History and Analysis, 3rd Ed.
[3] Available at http://www.oosa.unvienna.org/pdf/publications/STSPACE11E.pdf. For commentary see West, J. (2007), ‘Back to the future: The Outer Space Treaty turns 40’ in The Space Review available at http://www.thespacereview.com/article/982/1.
[4] For a summary of the current state of negotiations (from an African perspective) see Egypt’s ‘Report on Doha Negotiations’ (2009) available at http://www.acp-eu-trade.org/library/files/Egypt_EN_050809_Egypt_Report%20on%20Doha%20Negotiations.pdf. Médecins Sans Frontières have prominently criticised the protracted debate (see ‘Doha Derailed: A Progress Report on TRIPs and Access to Medicines’ (2003) available at http://www.msf.org.au/uploads/media/cancun.pdf).
[5] For example, it is well known that the TRIPs negotiations were born out of the difficulties of working within the framework of WIPO: see Gervais (1999), ‘The TRIPs Agreement’, p. 156.
[6] See the United Nations Office for Outer Space Affairs’ report ‘Status of international agreements relating to activities in outer space as at 1 January 2008’ available at http://www.unoosa.org/pdf/publications/ST_SPACE_11_Rev2_Add1E.pdf
[7] See Grewal, D., Iyer, G.R., & Levy, M. (2004), ‘Internet retailing: enablers, limiters and market consequences’, Journal of Business Research, 57 (7), pp.703-713; and Zhu, K. (2001), ‘Internet-based Distribution of Digital Videos: The Economic Impacts of Digitization on the Motion Picture Industry’, Electronic Markets, 11(4), pp. 273-280.
[8] See Schifferes, S. (2008), ‘Internet key to Obama victories’, BBC, available at http://news.bbc.co.uk/1/hi/technology/7412045.stm; Miler, C.C. (2008), ‘How Obama’s Internet Campaign Changed Politics’, New York Times, available at http://bits.blogs.nytimes.com/2008/11/07/how-obamas-Internet-campaign-changed-politics/?scp=1&sq=obama%20Internet&st=cse; and Shoko Kiyohara, S. (2009), ‘A Study on How Technological Innovation Affected the 2008 U.S.’ Presidential Election’, Ninth Annual International Symposium on Applications and the Internet, available at ftp://ftp.computer.org/press/outgoing/proceedings/Patrick/acutrack/saint09/data/3700a223.pdf.
[9] See Bimber, B. (1998), ‘The Internet and political transformation: populism, community, and accelerated pluralism’, Polity, 31(1), pp. 133-161, available at http://diktyologie.homo-numericus.net/databank/pdf/Bimber_Pluralism.pdf; and Ferdinand, P. (2000), ‘The Internet, democracy and democratization’, Democratization, 7(1), pp. 1-17.
[10] See Baird, Z. (2002), ‘Governing the Internet: Engaging Government, Business, and Nonprofits’, Foregin Affairs, 81(6), pp. 15-20, available at http://www.bos.rs/cepit/globalizacija/html/teme/tema5/06_Baird_15_20.pdf; and Geist, M. (2003), ‘The role of Government in Internet regulation’, World E-Commerce & IP Report, 3(12), pp. 29-30.
[11] Wriston, W.B. (1997), ‘Bits, Bytes, and Diplomacy’, Foreign Affairs, 76(5), pp. 172-182, available at http://bss.sfsu.edu/fischer/IR%20305/Readings/bits.htm; for a more optimistic view see for example Perritt, H.H. (1998), ‘The Internet as a Threat to Sovereignty?’, Indiana Journal of Global Legal Studies, 423(5), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1030&context=henry_perritt;
[12] See the ‘Digital Britain’ report (2009), available at http://www.culture.gov.uk/images/publications/digitalbritain-finalreport-jun09.pdf; BPI, ‘Internet Service Providers & The Music Business’, available at http://www.bpi.co.uk/article/Internet-service-providers-the-music-business.aspx; and ISPA (2008), ‘File sharing and self regulation’ available at http://www.ispa.org.uk/news/page_497.html.
[13] See Senden, L. (2005), ‘Soft law, self-regulation and co-regulation in European law: where do they meet?’, Electronic Journal of Comparative Law, 9(1), available at http://www.ejcl.org/91/art91-3.html; and Trubek, D.M. & Trubek, L.G. (2005), ‘Hard and Soft Law in the Construction of Social Europe: the Role of the Open Method of Co-ordination’, European Law Journal, 11(3), pp. 343-364, available at http://www.law.wisc.edu/ils/wisgar/hardandsoftlaw.pdf.
[14] Abbott, K.W. & Snidal, D. (2003) ‘Hard and soft law in international governance’, International Organisation, 54, pp. 421-456; and Hillgenberg, H. (1999), ‘A fresh look at soft law’, European Journal of International Law, 10(3), pp. 499-515, available at http://www.ejil.org/pdfs/10/3/597.pdf.
[15] ‘Some Considerations on Cyberspace Law’ in The International Dimensions of Cyberspace Law (UNESCO Publishing, 2000) at p.169. See also ‘Developing Legal Systems and Good Morals for the Internet’ by Christina Hultmark at p.219 and Les Droits de L’homme dans le Cyberespace (UNESCO Publishing 2005)
[16] Op cit pp169-170.
