Does multistakeholderism make decisions more legitimate?

The involvement of stakeholders in normative processes

has an impact on the legitimacy of their outcome.

There is an interesting iscussion going on on a list I am a member of on the true meaning of multistakeholderism and its relationship to legitimacy.

In a post, Mike Gurstein set out to defend multistakeholder processes as a framework of decision-making, but not a means to -necessarily - increase legitimacy.

He writes:

"Multistakeholder processes could and should enhance democracy by increasing opportunities for effective participation by those most directly impacted by decisions and particularly those at the grassroots who so often are voiceless in these processes"

"To do this means shifting away from multistakeholderism as a “means of legitimation” to being one among many strategies for making democracy more workable in this era of enhanced communications, enhanced interactivity and accelerated change."

While I agree with Mike on the importance of enhancing democratic participation in the development of norms, I feel that the legitimating dimension of multistakeholder processes may be underestimated.
I've written on the relationship of multistakeholderism and legitimacy at length in my recent book, but I'll restart my points here.

 

Building on Thomas M. Franck, The Power of Legitimacy Among Nations (Oxford: Oxford University Press, 1990), I argue that how legitimate a norm can be is to be measured according by referring to its determinacy (ascertainable normative content), symbolic validation through an authority figure, coherence, and adherence to a broader system of rules.

These legitimacy criteria can be refined and regrouped for application with regard to the law of Internet Governance. 

I've suggested in my thesis that an International Internet norm is legitimate if it meets a formal and a material legitimacy requirement:

- formally, it needs to be symbolically validated through its emergence in a multi-stakeholder process (the input and throughput dimension of legitimacy),

- materially, it needs to be determinate enough for its purpose (thus allowing for non-binding instruments), cohere with the Internet’s core principles and be consonant with the values of Internet Governance, and adhere systematically to the broader normative system of Internet Governance (the output dimension of legitimacy).

Multistakeholderism provides for a strong legitimation base for norms flowing out of representative and inclusive normation processes because of the triad of legitimating sources: the three key stakeholder groups (states, the private sector, and civil society).

Multistakeholderism as an approach is thus the best approximation of an ideal discourse we have. And an ideal discourse on norms is what we should strive for, because the norms developed in such a discourse, are legitimate in light of the criteria developed above. 

One example for that approach (and the consequences of ignoring it) is ACTA.

One of the main arguments brought forth by civil society against ACTA was that it was debated in secret without civil society involvement. The European Commission argues that this was untrue, but it was - also due to  reasons of EU competence -  mainly a Commission- and state-led exercise. 

I conclude in my book that any multistakeholder approach must ensure equilibrium between the actors and their normative inputs to the greatest extent possible. Therefore, the provision of clear procedural rules on how different stakeholders can contribute is necessary. Developing this on an international level is one of the more important challenges international law will face in the years to come.

By now, Internet Governance Law has developed to a point where individuals have a heightened expectation of legitimacy. There is an expectation of consultation with stakeholder groups; and there are – in certain areas of norm production – corresponding commitments to multistakeholderism by governments. These go back to the World Summit on the Information Society and have been reified in the declarations of rights and principles. 

Even though the European Commission was able to show that it had consulted other stakeholders (but barely so) and that the European Parliament was involved (to a limited degree) in the review of the results of ACTA negotiations, this was not perceived to be enough by certain civil society forces who organized, motivated by the emotionalizing power of an envisaged ‘assault’ on the Internet, a powerful movement against ACTA. This campaign ultimately let the norm entrepreneurs – states – to hold back from signing and ratifying ACTA. That ACTA included certain multistakeholder elements, though it was led by the Commission and thus could only demand technocratic-rational legitimation, did not sufficiently allow for an actualization of the expectation of legitimacy with regard to the normative output.

The implication for international treaty negotiations is this: There is a certain consonance between the post-interposition character of a regime and the level of multistakeholder participation expected by the community. The more individual-centric a regime traditionally is (or the greater individuals feel their involvement should be), the higher the level of multistakeholder participation must be provided for, for both forces to be in consonance. In civil society’s view, the result of the ACTA negotiations exhibited legitimatory dissonance. 

The integration of all stakeholders is essential for discovering, in the pre-normative phase, the challenges that regulatory attempts need to overcome and the regulatory demand they set out to answer. The multi-stakeholder approach, therefore, to which the international community is firmly committed with regard to Internet Governance law, has serious implications for the way in which international treaties should (and will) be negotiated in the future. 

Al(i)as! No Right to Pseudonymity?

Can social media users request anonymity from
social media companies? A German Data
Protection Office thinks so. (c) Kettemann 2011

Wolfgang Benedek an I have been invited to write a book for the Council of Europe on "Freedom of Expression and the Internet". As we have were finalizing the manuscript I was struck again by the breadth of human rights challenges online. It seems that every day brings new decisions, new directions, new answers (but also new questions). 

In the few days since we've handed in our manuscript, for instance, new developments happened in the French #UnBonJuif case and Microsoft followed Google and Twitter to release its transparency report on law enforcement requests.

Privacy on social networks is valued deeply by some and considered superflouos by others (or at least their carless approach to personal data lets you think that). 

The NY Times reported with regard to Skype that 

"In 4,713 cases last year, Microsoft disclosed administrative details of Skype accounts — like a user’s Skype ID, name, e-mail address and billing information, as well as call detail records if a person subscribed to a Skype service that connects to a telephone number. But Microsoft said it had released no content from Skype transmissions last year. It has said that the peer-to-peer nature of Skype’s Internet conversations means the company does not store and has no access to past conversations."

This leads to the question how we can protect our privacy in social networks. One approach is anonymity or pseudonymity. Social media services providers dislike both, because they make interacting with users (and personalizing ads) more difficult. For them, an identifiable user is a more valuable user.

But Facebook's real name policy als leads to interesting legal questions, especially since the  regional data protection office of the German state of Schleswig-Holstein started an initiative to safeguarding freedom of expression online  

Back in December 2012, the Office ordered Facebook change its real name policy and allow for the use of pseudonyms. 

The Office based its arguments on para. 13 (6) of the German Telemediengesetz (TMG; Telemedia Act) which obliges online service providers 

“to enable the anonymous or pseudonymous use of telecommunications media […], as far as technically possible and reasonable”. (my translation)

According to the Office, the German legislation is compliant with European law and serves to protect “in particular the fundamental right to freedom of expression on the Internet”. 

Though identify theft and abuse of social networks is a problem, the real name obligation does not prevent them effectively. Therefore, the Office concluded, “[t]o ensure the data subjects' rights and data protection law in general, the real name obligation must be immediately abandoned by Facebook”. 

Facebook did not go down without a fight.

Two months after the decisions by the Data Protection Office, on 14 February 2013, the Upper Administrative Court of the German state of Schleswig-Holstein agreed to suspend the ruling of the Office on the grounds that German data protection law was not applicable as the relevant collection of data takes place in Ireland (where Facebook Ltd. is incorporated)

The Office announced that it would appeal against the suspension.

The two decisions raise the larger issue of how international Internet companies should react to different standards in national and regional decisions and legislation. It is important to clarify that certain standards have to be met and that international human rights commitment, and especially commitment to freedom of expression online are respected. It also raises the question how to ensure that an authoritative standard of interpretation of freedom of expression, as developed by the ECtHR, can be translated for the local and regional offices and judiciaries.

As I wrote earlier, human rights-related developments online happen quickly. A great overview is provided by the Internet & Jurisdiction project. Both their annual report 2012 and the  summary of the key trends they see emerging is worth reading.

No Bieber in Berlin: Impressive app shows that two thirds of YouTube's most popular clips are blocked in Germany: a human rights issue?

Today, I embed a very impressive app by OpenDataCity that shows which of the 1000 most viewed YouTube clips can be seen in Germany. 

It is a very unimpressive 385. Of 1000.

61,5 % of the world's top 100 YouTube videos cannot be seen from a German IP address because of an unresolved conflict between Gema, the German agency responsible for managing intellectual property rights for artists. 

The reason for this very high number of blocked videos is that Gema asks for 0,00375 Euro per click (which is, by the way, much less than the 0,1 Euro that the Styrian butcher wanted for clicks on videos inspired by him.) YouTube (i.e. Google, Inc.) has refused to settle on this number and chooses not to offer the videos to visitors identifiably from Germany as part of a strategy of legal risk avoidance.

So it's not the German government blocking the videos, it is YouTube not offering them for fears of legal proceedings by Gema.


Other countries used as a comparison are South Sudan (15,3% of YouTube's 1000 most popular videos blocked), France (1,0 %), Switzerland (1,2 %), Vatikan (5,1 %), Spain (0,6 %), Austria (1,1%) and Afghanistan (4,4%). 

Have a look at the app. You can find my analysis below if you can resist the temptation to have a look at some of the 1000 videos ... .



 
Supported by MyVideo. Made by OpenDataCity. This App is under CC-BY 3.0.

Now, of course this does not mean that Germany should be added to the list of 

"Internet enemies". 

Freedom House's "Freedom on the Net 2012" survey confirmes that the bad score of Germany on what can be called 'YouTube 1000 most popular video index' must not be confounded with a restrictive approach to Internet freedom per se. 

Germany ranks 3rd of the countries surveyed in terms of Internet freedom with 15 of 100 points (0 being most free).

The influence of restrictive intellectual property rights regimes on Internet freedom is limited. The US (with 0,9% of the videos blocked) reaches only 12 of 100 points (with 0 being "most free") on the Freedom House scale, while the UK (with 0,8% videos blocked) an less impressive 25 of 100 points . 

Rather, it should provoke a debate on how to protect intellectual property rights and while ensuring the right to access to cultural heritage and and to all forms of articstic self-actualization worldwide thorugh the techonlogy of one's choosing. 

And it should make Gema and Google reconsider finding a sustainable solution.

The debate should, however, not confuse the important fight against Internet censorship. The argument that YouTube's choice not to provide videos because of intellectual property concerns is the same, on a human rights level, as the enforced blocking of videos by states, cannot hold water. 

Of course, German users circumvent the blockage by using VPNs, as this article for the German "Zeit" weekly illustrates. It was published, proably by coincidence, just yesterday.

"Shut up" Affair Highlights Challenges to Privacy and Freedom of Expression Online

Screenshot from the song "Kohlhauser" by König Leopold (c) YouTube

  

"Holt die Goschn" is Eastern Styrian (an Austrian dialect) for "shut up". Three months ago, the Vienna-based band "König Leopold" pulished a song based largely on a mash-up of comments, spoken by band members, that made by a real butcher, Mr. Kohlhauser, from a small village in Eastern Styria.

The song, "Kohlhauser", is available on YouTube and has only recently caused "troubels" when Mr. Kohlhauser (who apprently lives in the same village as the grandmother of a band member) engaged a lawyer to sue for 10 cents for each YouTube view of the video. 

He felt that his proivacy had been violated and indeed what the band has done is not unproblematic. Of course, they have the right to take inspiration for their artistic products from what they see and perceive (and one assumes that they heard Mr. Kohlhauser say, inter alia, "Holt die Goschn" during a visit at this butcher shop). Yet the band says now that the "Kohlhauser" in the song is a fictional character. 

That argument won't really wash because it is an identifiable person. Yet the whole affair showcasts again the challenges of ensuring human rights protection online. 

I've given an interview on this subject to the Austrian Press Agency (APA) and two quality journals have since picked up the story. You can read it in Der Standard [in German] and in Die Presse [in German].

My key points: 

Using a person who is not a person of public interest in an identifiable way in a song without getting their consent is problematic as it violates their privacy. This is distinct from the question whether there should be consequences under penal law for the authors of the song. 

Austrian media law does provide for the possiblity of penalties, but the treatment of youTube videos for the purposes of media law is not yet clearly ajduciated. 

What the case shows, however, is that anyone who has had information about them published online has to be very careful and how they go about the fight against that information. Don't freed the trolls! Don't start a legal fight against a largely unknown band. If Mr. Kohlhauser hadn't engaged a lawyer and started to talk about suing the band, the Austrian media would not have reported on that story. The video was already uploaded three months ago. What benefit can there be for Mr. Kohlhauser? He has started a low-key "shitstorm".

It is different, however, when it comes to undoubtedly illegal pictures, including non-consensually published nude pictures. Then, the server administrator should be immediately contacted, lawyers should be engaged, the police should be notified. 

What the story also shows is that we need to raise awareness regarding the limits of protected speech online and the balance to be struck between artistic freedom and privacy protection.

Internet content regulation and freedom of expression: three questions legislators should consider

Internet content regulators should take care: Not
everything that lookslike hate speech, is hate speech.

I am currently busy co-authoring a book for the Council of Europe on freedom of epxression on the Internet. In the process of preparing the materials I was amazed by how many documents we have by now expressly pointing out the importance of freedom of expression online. 

A very informative list can be found in what is probably the most important judgment on freedom of expression on the Internet we've yet seen by an international court: the European Court of Human RIghts's decision in Yildirim v. Turkey, §§19 et seq. (You can find a very good analysis here at the UK Human Rights Blog).

The Court chided Turkey for allowing an interference that does not meet the 

"requirement of foreseeability required by the Convention and did not allow the applicant to enjoy the sufficient degree of protection required by the rule of law in a democratic society. Moreover, this law appears to be directly contrary to the wording of paragraph 1 of Article 10 of the Convention, that the rights recognized therein apply “regardless of frontiers”(§ 67; Einglish translaten by UK Human Rights Blog)

States thus have a duty not ensure freedom of expression online just as offline. 

But legistic shortcomings are representative of a larger phenomenon. Some states have issues with developing a coherent framework of laws applicable to the Internet and or of refining existing laws to extend to the Internet. Such a duty has  been explicitly confirmed by the ECtHR in Editorial Board of Pravoye Delo and Shtekel v. Ukraine (in this case: extension of protection of journalists offline to online publications).

This made me think of an article I wrote in 2011 on the three key questions each legislator must ask when it comes to normative action in the Internet age. It's published in the collection of the 14th International Symposium on Legal Informatics, Salzburg, but I will republish my main arguments here:

• First, legislators have to consider whether to regulate or not. It is always difficult to pinpoint exactly when a social situation demands legal norms and up to when social norms are enough. If a state introduces too strict a rule too early in time this might hamper technological development. Then again, not ruling at all might lead to sectoral anarchy and human rights violations. 
• Second, legislators need to decide which entity should regulate. Often the self-regulatory powers of stakeholders will be enough but sometimes governments as the traditional rule-making authority come into play. 
• Third, the technical question of how to regulate needs to be answered. Depending on the normative goal, the normative and technological means will differ. 

The example of regulating hate speech is a good case in point. 

First, a state has to consider whether to fight (certain) online hate speech or allow it. International law helps answer that question as it sets down certain standards that all states must obey, such as the prohibition of incitement to genocide. But with regard to other hate speech, such as negationism, a country with a different historical from, say, Germany, may decide not to penalize holocaust denial. Some states, such as France or Switzerland, may also decide to penalize denial of other genocides will other states consider these denials covered by freedom of expression. 

On the second level, states have to consider which actor is best suited to implement the prohibition of hate speech. States may consider censorship by Internet Service Providers, relying on unofficial but widely circulated blacklists established by non-governmental organizations to be must effective or their own criminal law or a combination of both. 

On the third level, may also consider whether it makes more sense to blacklist sites or to have servers physically remove them. In assessing the different approaches states have to keep in mind that they should always choose the least invasive regulatory alternative to fight hate speech.

Taking this into account will help legislators decide whether to regulate or not, who to empower with regulatiory attempts and how to regulate.

As 2012 winds down, time to reflect on the future of individuals in international law and Internet Governance

2012 has been a terribly exciting year for those interested in Internet Governance, the protection of human rights on the Internet, and the interdependencies and interrelations of international law and Internet regulation. 

Differnet stakeholders attempted to formulate their own rights and principles for the Internet. I contributed by own 5 Punchy Principles for Regulating the Internet that complement the excellent 10 Rights and Principles of the Internet Rights and Principles Coalition.

The sometimes acrimonius debates between sovereignity-oriented states and defenders of the status quo led to the failure of WCIT and the clash in Dubai, but turned Internet Governance into an issue for mainstream media (at least for a time). 

While the great insight that the “Internet is awesome. Therefore, it needs to remain free.” cannot be doubted, some content control is necessary to preserve human rights (of others). How social networks go about this task was a big topic when  Facebook's Content Moderation Standards were leaked.

(Facebook was also at the center of the biggest data protection dispute to date, an issue that remains unresolved: even after the conclusions of the Irish Data Protection Commissioner)

2012 was without doubt the most important year for human rights online. It was a  true  victory for Internet users, when the Human Rights Council adopted its Resolution on the promotion, protection and enjoyment of human rights on the Internet confirming that all human rights apply online just as offline. 

All of these developments are facets of a broader paradimg change: the emergence of the invidual in international (Internet) law. This is also the very topic to which I have dedicated the last years of my research. The result has been my book on the future of individuals in international law that has just been published by Eleven International. 


You can order it here.

The Future of Individuals in International Law

Lessons from International Internet Law

Matthias C. Kettemann

978‐94‐90947‐87‐3 
hardcover 
218 pages 
€ 75, 00












Content

The state-centric international order is in flux and the role of the individual as an actor in international law is growing. Yet in most international law regimes, states continue to interposition themselves between individuals and international law. Against the background of humanization which is shown to permeate all international legal regimes, this book sketches the future of individuals in international law. From the normative success of International Internet Law as the most innovative post-interposition regime this book draws lessons for the optimal design of (existing and emerging) legal frameworks.

Describing in detail the characteristics of a post-interposition regime, including a commitment to multistakeholderism, non-traditional normative instruments and system-wide disintermediation, this book demonstrates why the future of individuals in international law looks bright. 

Target group

This publication is aimed at all those touched by international law: states representatives and diplomats, cyber foreign policy and cyber security experts from the military , legal practitioners from the private sector, civil society representatives, academia and students and teachers of international law, human rights and Internet issues.





In the coming weeks, I will present some of the insights I've developed during my research on my blog and will put them up for discussion. But for now, I wish you a happy last day of 2012 and great New Year's Day and a fantastic and productive start into 2013! 

A great 2013 to all readers!

The Internet is the world's "Plaza Pública", says UN Special Rapporteur Frank La Rue, and "it will prevail" against censorship

UN Special Rapporteur Frank La Rue
at a press conference in in Stockholm
(2010) (cc) janwikifoto

The Internet&Society Co:llaboratory has uploaded Episode 4 of its Podcast Series, which is based on a  telephone interview I conducted in May 2012 with UN Special Rapporteur on Freedom of Expression Frank La Rue in the framework of the fifth Co:Lab initiative on Human Rights and the Internet. 

I've blogged about the powerful reports Mr. La Rue presented to the Human Rights Council and the General Assembly here and here before. 

In the interview, he mentions his  key points regarding human rights protection online. You can find the full transcript here, but here's a brief overview of the highlights:

• "[The] Internet per se does not generate change, [the Arab Spring revolutions] were no Internet revolutions [...] it is the people who generate change. But it is also very clear that the Internet did play a key role in this process, and that it was a major facilitator. 
• "It it is key to have access to the Internet [and] using the Internet is key [to ensure] several rights." 
• "The second right, that i think is essential, is the right to education. I believe education in the future will be linked to the use of the Internet, as an investigative tool, but also as a moving library, a virtual library, but as well as the possibility of writing, collecting, sharing information."
• "The Internet [is]  connected to all development issues, economic and social, and it is key for every state to guarantee access to Internet to the most remote rural villages" 
• "[In] terms of the justice system, Internet facilitates the [openness] of the justice system, [by] making the justice system more public [it] facilitates the rural demand for justice, [it] facilitates access to information as a device for truth, all of which are crucial to eliminat[ing] impunity."
• "[W]hatever states do to block, filter, censor the Internet, they will inevitably fail, because the Internet is not only such a powerful messenger but the technology also evolves so rapidly that states and state institutions will not be able to keep pace with the broad public and the users."
• "[The] Internet will inevitably prevail as the open space of communication and free flow of ideas between peoples of the world." 
• "[The] Internet has to be seen as the Plaza Pública, the public square, the public space, where we all meet, relate, socialize, exchange views and communicate."