Blue Pencil Set

register enewsletter

A+ A A-

Internet Governance Strategy

57 InternetLaw

One of the most striking aspects to derive from the English court's recent dealings with the abuse of the Internet in connection with super injunctions being sought by celebrities, is the limitation of a super injunction.

Remember the issues as to whether it applied to Tweeting and how do you enforce against a person breaching the order on the other side of the world, or even Scotland which is a different legal jurisdiction to England?

Although many laws do apply to the Internet, it is in certain respects still frontier country and many jurisdictions work separately to police the Internet. One of the main balancing acts is between freedom of speech and universal access versus abuse and crime.

The Internet is increasingly becoming the main outlet for music, TV and film and this state of affairs will increase as broadband speeds increase.

The Council of Europe's 47 members, including Russia, signed up to an Internet Governance Strategy to protect and promote human rights, the rule of law and democracy.

The Strategy identifies 40 key steps to be taken between 2012 and 2015 in 6 areas:-

  • Element
  • Internet's Openness
  • The Rights of Users
  • Data Protection
  • Cybercrime
  • Democracy and Culture
  • Children and Young People

The intention is to make the Internet inclusive and people centred; a safe highway and not an opportunity for crooks and perverts.

In particular, the initiative will build itself around the international framework of human rights law which needs to be recognised as having as much application to on line activities as well as off line.

The Strategy will maximise the rights and freedom of Internet users, plus development in data protection and privacy, including the enhancement of the rule of law and an effective co operation against cybercrime, the maximisation of the Internet's potential to promote democracy, cultural diversity as well as the protection of empowerment of children and youth.

The Strategy sees this occurring by use of what are described as 'soft law' instruments to assist with the understanding and implementation of the Strategy with one of the main goals being to achieve freedom of expression regardless of frontiers and internet disruption. This includes ensuring standards that provide a free access across borders of legal online content, and at the same time ensure human rights standards. The Strategy wants the network to be neutral and not subject to political or any other form of bias. The Council of Europe regard this as essential to preserve and develop the concepts of democracy. Also, the general public to be properly informed of their obligations and rights in order that the Internet is used responsibly, including the protection of privacy and protection of personal data.

Another aspect of the strategy is improved information flow through the European Audiovisual Observatory, as well as improved public services through the Internet to as to promote involvement in democracy and encourage diversity.

The Council of Europe wishes to develop, strengthen and modernise its existing convention (Convention 108) to protect and promote data protection, as Lee Hibbard, Head of the Information Society Unit in the Council of Europe stated '...The Strategy provides orientation and promotes a holistic and sustainable approach to the Internet, with people and their rights and freedoms at its heart. In doing so, it champions multi-stakeholder dialogue in a way forward for Internet policy making.'

The bold programme raises a number of questions and implications including:-

1.    How does this reconcile with some countries proposed increased scrutiny of the internet in respect of anti terrorism, Britain's recent announcement being one such example?

2.    One person's privacy is another person's denial of freedom of expression; look at the debacle in the United Kingdom giving rise to difficulty in enforcing injunctions and the current review of media responsibility by the Leveson Enquiry.

3.    A number of countries are providing information about people's wealth held in one country Eg. the reciprocal arrangement between UK and Swiss tax authorities. How does this reconcile with the Strategy?

4.    The Council of Europe represents 47 countries whilst the Internet is global so will it have the impact it desires given that China and the USA, for instance, are not members. However, Russia is and is the Council of Europe hoping to show the rest of the World by example.

5.    The Strategy promotes the use of the Internet ' it is accessible and without any arbitrary interruption(ie not 'switched off') by fostering inter-state (international) co operation so that governments can better anticipate, prepare and thereby avoid disruption to the Internet.' Will the implementation curb the activity of Wikipedia when they switched off in protest and at restrictions on freedom of speech; China's restrictions on access to material and also the likes of Wikileaks?

6.    The Strategy refers to the use of soft law instruments and a holistic approach. However, is it the first move to establishing a truly international court to protect and enforce all matters relating to the Internet? The Internet is omnipresent and exceeds the reach and power of an individual country court of law.

7.    Will the Strategy foster the further commercial use of the Internet as one of its aims to encourage accessibility and lawful use of the Internet? In achieving good accessibility governments have to have a consensus to ensure broadband which is robust enough to deal with the circulation of content including pay per view and video on demand.

8.    The responsible use of the Internet is akin to driving. We have the freedom to drive provided we abide by certain rules and drive in a proper way. How does one ensure the responsible use of the Internet when someone could place something obscene, threatening or defamatory on their Facebook page and it is available to the rest of the world in seconds? The education systems around the world need to cooperate and introduce lessons on the appropriate conduct and use of the internet so we encourage freedom of use, but also responsibility.

9.    What is acceptable in one country may offend sensibilities or mores in another. Nuts magazine might be acceptable in the United Kingdom, but it could offend sensibilities elsewhere and could be the victim of censorship. How do you balance competing tastes moral, religious or otherwise?

10.    The news is dominated by dilemmas such as Libya and Syria whereby on the one hand you have the pressure not to interfere in the running of a nation allied to wanting to promote and support those who genuinely seek democracy and freedom of speech. How would one protect and enforce the unrestricted flow of information via the Internet in such situations?

In order for the Strategy to have any real impact it needs to work closely with governments around the world, key players such as United Nations and major Internet providers such as Google, YouTube and Facebook, broadcasters and film makers for instance as well as the legislators and judiciary around the world.

Arguably, the Strategy could be the first step towards a truly international Intellectual Property court, and universal rules which could include copyright laws. TV made us the Global Village, proper regulation and universal support could create the Global Neighbourhood Watch whereby you can safely walk the streets and conduct yourself lawfully, without fear of crime or oppression. We can hope.

Julian Wilkins

Julian Wilkins is Editorial Director for Blue Pencil Media Limited. Julian has a LLB (Hons) in law and M.Phil in law as well as a Diploma in European law and was admitted as a solicitor in 1988; he practices in the area of media, entertainment, and intellectual property law as a consultant for Devereaux Solicitors in London. Julian is also a Notary Public and CEDR accredited commercial mediator. Julian has written for academic publications and contributed to an Exhibition Catalogue about 1960s photographer Philip Townsend. Julian is a member of the International Association of Entertainment Lawyers and also the British Institute of International and Comparative law. Julian is a finalist in The Media Lunch Club “Short Circuit” script competition to be held in November 2011. Julian’s comments “The rapidly changing world economy and technology is presenting incredible opportunities for the Creative Industries and Blue Pencil hopes to reflect and contribute to these changes.”

2011 © Blue Pencil Media Ltd. All rights reserved | Company No. 07628531 | Registered Office 1 Old Court Mews, 311 Chase Road, London, N14 6JS