A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Tuesday, July 24, 2012

5 Punchy Principles for Regulating the Internet

Internet regulation needs to be grounded in human rights
(at the Schoeckl mountain near Graz, Austria)
(c) Kettemann 2012
In a excellent analysis published in La Nacion and on his  blog, Eduardo Bertoni, director of the center for Studies of Freedom of Expression and Access to Information of the law faculty of the University of Palermo (Argentina), has highlighted the importance of the
JOINT DECLARATION ON FREEDOM OF EXPRESSION AND THE INTERNET 

of 1 June 2012. 

This declaration which really deserves more spotlight was adopted by the four international instruments on freedom of expression: 
  • The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, 
  • the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, 
  • the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and 
  • the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information.
Pity that ASEAN's human rights protection regime has not yet evolved in a way to allow installing  a similar rapporteur. But the signs, in Asia as well, are encouraging.


In their  JOINT DECLARATION ON FREEDOM OF EXPRESSION AND THE INTERNET, the four FoE experts underline certain key principles which merit extensive citations (and the whole declaration deserves a thorough reading):

1. General Principles

a. Freedom of expression applies to the Internet, as it does to all means of communication. Restrictions on freedom of expression on the Internet are only acceptable if they comply with established international standards, including that they are provided for by law, and that they are necessary to protect an interest which is recognised under international law (the ‘three-part’ test).

b. When assessing the proportionality of a restriction on freedom of expression on the Internet, the impact of that restriction on the ability of the Internet to deliver positive freedom of expression outcomes must be weighed against its benefits in terms of protecting other interests.

c. Approaches to regulation developed for other means of communication – such as telephony or broadcasting – cannot simply be transferred to the Internet but, rather, need to be specifically designed for it.

d. Greater attention should be given to developing alternative, tailored approaches, which are adapted to the unique characteristics of the Internet, for responding to illegal content, while recognising that no special content restrictions should be established for material disseminated over the Internet.

e. Self-regulation can be an effective tool in redressing harmful speech, and should be promoted.

f. Awareness raising and educational efforts to promote the ability of everyone to engage in autonomous, self-driven and responsible use of the Internet should be fostered (‘Internet literacy’).

It seems difficult to me to express in a more condensed and illuminating way the biggest challenges that Internet regulations faces, but I've given it a try.



These are my five punchy principles for regulating the Internet 

1. Offlline human rights apply online, as do  the rules on restrictions. 
2. Internet access needs to be ensured - both to the infrastructure and to content. Restrictions need to be legal, pursue legitimate goals, and be proportionate. 
3. Content illegal under international law needs to be fought. Legal, but shocking or disturbing content, needs to be protected.
4. The Internet is a new entity. It needs some regulation. It deserves new regulatory approaches (the multi-stakeholder approach) and new regulatory instruments (outside of traditional treties).
5. Self-regulation should be the standard, co-regulation  should be used where necessary and direct regulation should be employed if neither of the former leads to legitimate results.

What do you think? Could these five principles be a  useful guideline for regulators? Am I missing something important? 


Of course, adding my principles to the principle hype of 2011 might not be the best approach. Perhaps we should stick with what has been accepted internatioally. 

Bertoni concludes his analysis with an interesting idea worth pursuing:

"Our lawmakers could sign onto a declaration with similar reach [as the Joint Declaration referenced above, MCK]. Or, the Executive could directly and formally adopt the criteria from the Joint Declaration. With this simple idea, we would be laying the groundwork for the development of public policies related to Internet regulation that wouldn’t jeopardize fundamental rights that are guaranteed by our constitution and international human rights conventions."


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