Blog #6: Internet Governance and the Rule of Law by Andrii Paziuk


In the sixth installment of the FOC Working Group 2 (WG 2) blog series, WG member, Andrii Paziuk, lecturer at the Institute of International Relations International Law Department and expert on the Council of Europe and the EU Joint project ‘Strengthening Information Society in Ukraine’, discusses the challenges involved in the application of Rule of Law principles to Internet Governance and the ways different stakeholders can play a role in ensuring that the Rule of Law is promoted and upheld.

Throughout this blog series, WG members will analyse current scenarios where the application of the rule of law online fails to promote human rights online, and highlight areas where further research should be undertaken to further strengthen rule of law principles and practices. To read previous blog posts in the series, follow  this link.


Internet Governance and the Rule of Law

The application of rule of law principles to internet governance is crucial to the future of the digital environment. Without these principles underlying governance, our human rights online are vulnerable.

But in practice, the application of Rule of Law principles to internet governance is difficult. This is because Internet governance[1] involves a huge range of actors[2], cuts across national borders and straddles legal jurisdictions, transforming traditional notions of sovereignty over communication and information policy and complicating the identification of appropriate bodies for decision making and the legal instruments for achieving common goals.[3]

Amid a growing reassertion of state power, and the emergence of disparate national information policy regimes, the question is no longer whether the Internet can or should be governed, but rather what kind of global institutions, frameworks and approaches it requires to be governed effectively.[4]  In order to ensure the enjoyment of human rights online – including the rights to freedom of opinion and expression, freedom of assembly and association, protection of the law against arbitrary interference with privacy, and the freedom of religion or belief – it is essential that rule of law principles form the basis for these governance mechanisms.

To aid thinking around these challenges, here are some ways different stakeholders can play a role in ensuring that the rule of law is promoted and upheld in internet governance.

States and the rule of law in Internet governance

Let’s turn to states. With their role defined as the “policy authority for Internet-related public policy issues”, states can reinforce the application of rule of law principles to Internet governance by adopting laws that are accessible and sufficiently precise to enable individuals to regulate their conduct.  Rights that people have offline must also be protected online.  The law must ensure tight control over the scope of the authority and effective judicial review to prevent any abuse of power by State officials.[5]  Internet governance decisions must be subject to a human rights impact assessment before they can be implemented.[6]  Due process is a fundamental requirement for any legal system based on the rule of law, and it includes the right to an effective remedy in the case of any human rights violations and the right to be heard before any potentially adverse decision is taken regarding oneself.[7]

Furthermore, the rule of law requires that the process by which laws and policies are developed and enacted should be inclusive and transparent, enabling the participation of all stakeholders, including the private sector, civil society, academia and the technical community.[8]  These laws and policies should be assessed by all stakeholders at their drafting stage, evaluated periodically and continuously with regard to the impact that their implementation may have on the core values: stability, interoperability, security and resilience of the Internet ecosystem.[9]

Private companies

The FOC Tallinn Agenda emphasizes “the importance and responsibilities of the private sector as a stakeholder in respecting human rights and fundamental freedoms online in the age of data-driven economies.” Their role in promoting and protecting the Rule of Law and Human Rights is gaining recognition, with their obligations in furthering this aim outlined in the UN Guiding Principles on Business and Human Rights, evaluated and presented in the report ‘Terms of Service and Human Rights’, as well as principles and operational guidance specific to ICT companies established by the Global Network Initiative (GNI), a multi-stakeholder organization committed to protecting and advancing free expression and privacy in the ICT sector.

Multi-stakeholder models of Internet governance and the rule of law

Multi-stakeholder models of Internet governance can also incorporate rule of law principles such as legitimacy and accountability into their structure.  The representative multistakeholder model of Internet governance, as defined by the 2005 Working Group on Internet Governance, ‘links stakeholders together in a network of shared rights, duties and responsibilities and encourages everybody to participate in transparent, open and bottom-up policy development and decision-making processes’.[10]The NETmundial identified a set of common principles and important values that contribute for an inclusive, multistakeholder, effective, legitimate, and evolving Internet governance framework.[11]

In order for multi-stakeholder models of Internet governance to be effective and consistent with rule of law principles, they should be based on a set of rules, such as the Code of good practice on information, participation and transparency in internet governance. These rules must be based on democratic traditions, such as pluralism and accountability, to prevent any single stakeholder group from dominating the decision making process.[12] Furthermore, steps to affirm the legitimacy and accountability of non-governmental stakeholders have been addressed through the creation of the Internet Governance Caucus at the World Summit on the Information Society (WSIS) in 2003[13] and the Civil Society Coordination Group (CSCG).[14]

International organizations

International organizations play an important role in promoting rule of law principles among their Member States.  For example, the Committee of Ministers for the Council of Europe adopted a recommendation on Internet freedom aiming to help member states to create an enabling environment for Internet freedom and to promote increased compliance with their obligation to respect, protect, and promote human rights on the Internet. [15]

The rule of law, when applied to internet governance, also requires the elaboration and promotion of an international cyber stability framework, designed to achieve and maintain a peaceful cyberspace environment where all stakeholders are able to fully realize its benefits. This is reflected in the affirmation of the 2013 and 2015 UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (UN GGE) of the applicability of existing international law, including the UN Charter, to state conduct in cyberspace.  Governments all over the world have echoed this affirmation.[16]  Cyber confidence building measures (CBMs) are also being developed in the OSCE and the ASEAN Regional Forum, to ensure stability in cyberspace by reducing the risk of misperception and escalation.

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.


 

[1] The UN Working Group on Internet Governance has defined the term as “the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.” Report of the Working Group on Internet Governance, June 2005, p 4.  See also, Applying the Rule of Law Online, Freedom Online Coalition WG2 Rule of Law Blog Series.

[2] Working definition of Internet governance, Tunis Agenda for the Information Society, 2005: Internet governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the Internet. # (italics my own)

[3] Wolfgang Kleinwachter,  History of Internet Governance and Challenges of Tomorrow, August, 2016.

[4] Mueller L. Milton, Networks and States: the Global Politics of Internet Governance, Cambridge, 2010 pp. 2-3.

[5] Recommendation CM/Rec(2016)5 of the Committee of Ministers to member States on Internet freedom (Adopted by the Committee of Ministers on 13 April 2016 at the 1253rd meeting of the Ministers’ Deputies)

[6] Milton Muller, Missing The Target: The Human Rights Push In ICANN Goes Off The Rails, Internet Governance Project, October 26, 2016, available at: http://www.internetgovernance.org/2016/10/26/missing-the-target-the-human-rights-push-in-icann-goes-off-the-rails/

[7] Terms of service and human rights: an analysis of online platform contracts / Jamila Venturini … [et. al.]. – 1. ed. – Rio de Janeiro : Revan, 2016, 148 p., available at: http://internet-governance.fgv.br/sites/internet-governance.fgv.br/files/publicacoes/tos_0.pdf

[8] Para 1.4, Recommendation CM/Rec(2016)5 of the Committee of Ministers to member States on Internet freedom (Adopted by the Committee of Ministers on 13 April 2016 at the 1253rd meeting of the Ministers’ Deputies), available at: http://merlin.obs.coe.int/redirect.php?id=18001

[9] Para 11, Internet Governance Principles, NETmundial Multistakeholder Statement, Ibid. 4.

[10] Wolfgang Kleinwächter, Editorial,  2011, p. 7 in Internet policy making, Mind No 2, Berlin : Internet and Society Co: llaboratory, 2011.,

[11] NETmundial Multistakeholder Statement, 2014.

[12] Samantha Dickinson, A Journey Can be More Important than the Destination: Reflecting on the CSTD WGEC, WSIS Forum 2016, 2–6 May 2016, ITU, Geneva, available at: https://www.itu.int/net4/wsis/forum/2016/Content/AgendaFiles/document/c47c777d-7fdf-47ab-bb30-d9100bc90e48/SamanthaDickinson,_AJourneyCanbeMoreImportantthantheDestination_.pdf

[13] WSIS Civil Society Internet Governance Caucus, September 12, 2004. Contribution to the Working Group on Internet Governance (WGIG), first open consultation 20-21 September, 2004, Geneva, available at: www.wgig.org/docs/csig-caucus.doc

[14] http://internetgov-cs.org/procedures#A

[15] Press release, Committee of Ministers’ Recommendation on Internet freedom, IRIS 2016-5:1/2, available at: http://merlin.obs.coe.int/iris/2016/5/article2.en.html

[16] Goa Declaration at 8th BRICS Summit, October 16, 2016; available at: http://mea.gov.in/bilateral-documents.htm?dtl/27491/Goa_Declaration_at_8th_BRICS_Summit