Blog #1: Applying the Rule of Law Online
Introducing the Working Group 2 Blog Series:
Welcome to the Working Group 2 (WG2) Blog. The Group’s aim is to further strengthen rule of law principles and practices that protect and promote human rights online, whilst maximizing impact for social and economic development. In this forum, WG members will analyse current scenarios where the application of the rule of law online fails to promote these values and highlight areas where further research should be undertaken to meet the Group’s aim.
The rule of law has been around for quite some time. It can be traced back to the earliest forms of human civilization and represents, at its core, a will to temper or restrain arbitrary power. In the digital world, this matters more than ever. In order for the digital environment to act as an enabler for development and human rights, the application of rule of law principles online is imperative. Achieving sustainable technology-enabled development – also referred to as digital development – rests upon our ability to address this challenge.
To an extent, the way that the Internet is currently governed is an anomaly. For many years, it has passed under the radar of decision-makers, with little attention given to its governance, and with a general view that the self-governing virtual communities could resolve most problems via consensus.
Today, we are facing a reassertion of state power, coupled by increased incongruence of national information policy regimes, and the growing challenges to apply the rule of law in a digitally connected world. The question is no longer whether the Internet can or should be governed, as was the case in the ’90s, but rather what kind of global institutions, frameworks and approaches it requires to be governed effectively.
One fundamental factor behind the exponential growth of digital development, and the strong linkages to human development, is freedom on the Internet and the extension of our offline rights and liberties to an online world.
As a result, the UN Human Rights Council, in its resolutions 20/8 and 26/13 took note of this, and emphasised the importance of respect for human rights online. At the same time, states have a legitimate stake in cyberspace from a law enforcement and crime prevention perspective, in particular considering that a number of illicit activities such as drug trafficking, money laundering and fraud have become digital activities. Moreover, national security imperatives presuppose that states can gather intelligence and ward off cybersecurity threats – for instance from extremists and radical groups that are connecting online.
In all of these instances, from protection of individuals’ rights on the Internet, law enforcement and cybersecurity, states are required to follow due process and respect rule of law principles. There is, however, no specific treaty or framework to regulate cyberspace from the perspective of the rule of law – an attempt to create such an international agreement would likely be unconstructive given how quickly the ICT space evolves and the current lack of international consensus on internet governance.
Some general properties of a rule of law based-system are the explicit recognition of key principles in constitutional texts, laws and regulations – including, for instance:
- Legality – government powers are authorised by law; government powers are limited by legislature and subject to independent judicial review; government powers are limited by independent audit and review; transitions of power are subject to law.
- Legal certainty – laws are applied generally with equal treatment and absence of discrimination;laws are not applied retrospectively due process and timely proceedings in criminal, civil and administrative matters; effective enforcement of government regulations; government regulations are enforced without improper influence; the exercise of government discretion is subject to law, and conforms to the principle of proportionality and necessity of legitimate aims.
- Accountability – sanctions for government officials for official misconduct; the right to appeal decisions taken by government officials and agents.
- Transparency – laws are clear, publicized and accessible; laws are relatively stable over time; there is a degree of public participation in decision-making and formulation of laws and policies; there is a possibility of requesting official information; the process of enacting laws is transparent.
- Respect for fundamental rights – access to justice, the right to be heard, right to a legally competent judge, the right to an effective remedy, the presumption of innocence.
A society governed by the rule of law enhances the establishment of predictable, transparent and accountable procedures, thereby safeguarding human rights. A rule of law-system requires the existence of a fair and effective, objective and impartial, institutional environment that can safeguard these principles when the state exercises its power. Legislatures, courts, regulatory and supervisory agencies etcetera perform functions important to these ends.
The rule of law adapts and assumes a specific form in relation to each policy area, such as public financing, health, education, regulatory functions, legal and judicial sector etc. Therefore understanding how rule of law principles apply online is a process of identifying the specificities of the policy area and carefully adapting the principles without compromising with the core value of the rule of law as a concept.
Given the cross-jurisdictional and complex nature of this area, many questions remain for decision makers from both governments and companies. Through the WG2 blog series, members of the Working Group will be analysing current challenges and identifying areas for future research to further our understanding of how to apply the rule of law online in such a manner that protects and promotes human rights and digital development.
The views expressed in this blog represent the views of individual authors, building on the work of the Working Group. They do not represent the views of the Freedom Online Coalition or its members.