'The nature of the Internet dictates a shift from unilateral nation-state regulation towards a multi-layered governance system in which there is a role to be played by both public and private bodies at both national and international level. ' The object of this essay is to analyse the regulation of the internet. Firstly, it will focus upon the changing nature of the internet, its proliferation during the 1990's and its consequent decentralisation. It will then examine how and why the methods of regulation have changed with time.
The essay will consider the importance of public and private actors in initiating the shift towards a multi-layered governance system. It will then attempt to highlight the fundamental problems of the internet as a global phenomena (such as the proliferation of child pornography) which have rendered nation-state regulation insufficient. The final part of the essay will argue that even a multi-layered approach has its flows and even cross jurisdictional initiatives cannot adequately regulate harmful internet content and its free flow. It will also suggest ways forward. 1.
The shift away from unilateral nation-state regulation. The Internet can be defined as; '… the global data communication system formed by the interconnection of public and private telecommunication networks… '1 More specifically, we define Internet governance as; 'Collective action, by governments and/or the private sector operators of the networks connected by the Internet, to establish agreements about the standards, policies, rules, and enforcement and dispute resolution procedures to apply to global internetworking activities.
The founders of the internet I.e. those who were involved in its early development did not perceive the internet to be in need of governance. Indeed, the internet has been transformed from a research and academic facility into a general purpose communications medium widely available to the public and is used for an expanding range of private and public purposes. 3 Moreover, the introduction of the World Wide Web during the 1990's has resulted in the emergence of new issues within an international context and has drawn new actors into the discussion as to how the internet should be regulated.
4 Indeed, no-one anticipated the consequent decentralisation of the internet. In this sense, any attempts to regulate at the nation state level will be stifled due to the way it has developed I. e. its borderless nature. This is why 'collective governments' need to work together. The Internet's methods of establishing communication are non-territorial which has created a non-territorial arena for human interaction and thus for policy and governance and any attempts to make it into a solely territorial model, (nation-state regulation alone) would now involve enormous transitional costs.
5 Any new attempts for a nation state to regulate content of the internet in a unilateral manner would fail. This is because when the internet first emerged, the majority of national governments/parliaments did not realise the potential of the internet, nor did they recognise the importance of Jon Postel's act of delegating the management of country code top-level domains to individuals or institutions of countries. 6 Consequently, government involvement, has always been kept to a minimum.
It could therefore be argued that the shift away from unilateral nation-state regulation occurred as early as the 1990's, when the internet was created without geographical borders and hence has never been a reflection of manmade national borders which separate territories, sovereign nation-states and national jurisdictions. 7 The internet has undoubtedly become a multi-layered network with many players linked by various bilateral agreements. 8 Others would argue that the internet is not a 'lawless place,' 9 and that there has been no such shift away from nation-state regulation.
Instead, some would argue that a multi-level governance system has been initiated as a means of supplementing the laws, rules and regulations created by the governments of Nation-States. In 1997, Walker stated that; '… One can expect a trend towards 'governance' rather than the 'government' in which the role of the nation-state is not exclusive but may need further sustenance by… varied levels of power at second hand. '10 Walker appears to be acknowledging the significance of nation-state laws and standards, but also recognises that nation-state regulation alone will not suffice.
2. Role to be played at the national level: Public and Private bodies: As part of the movement into multi-layered governance, the involvement of self regulation at the private level cannot be underestimated. This can be demonstrated in the contentious area of child pornography. It would be impossible to reach agreement at the international stage as to how pornography should be defined because with the multi-national environment of the Internet also comes cultural, moral and legal variations and what is illegal in one country may not be in another.
'…each country may reach its own conclusion in defining the borderline between what is permissible and not permissible… ' 12 One way in which self regulation is carried out is by way of Internet Service providers. In the UK, ISP's have been encouraged to produce codes of practice to control access to illegal and unsuitable material. 13 The Internet Watch Foundation was established in the UK in 1996 as a further method of self regulation for the ISP's in the private domain and has an e-mail, telephone and fax hot-line so that users can report materials related to child pornography and other obscene materials.
This has prevented ISP's from being accused of possessing the material in the UK, as the ISP's are only required to remove the content which has been identified and located by another source. 15 For example, according to IWF's second report, the number of reports reached 2407 and in 447 of these reports action was taken and, more significantly, 430 of the actions reports contained child pornography. 16 The decision in the case of Sacchi v Italy 17 illustrates how national level of governance is still authoritative.
It demonstrates how control of information by means of nation-state regulation is still possible. In this case the applicant claimed that by being prevented by domestic law from operating his cable television firm, this constituted a violation of the right to freedom of information as safeguarded by Article 10 of the European Convention of Human Rights. 18 His application was rejected. At the national level, governments have co-regulative initiatives. Indeed, governments at the national level are needed to take the lead on areas which need to be addressed.
For instance education and awareness campaigns are an important method of regulating the content of the internet, as citizens will be made aware of how to protect their personal information on mediums such as social networks. Co-regulation at the national level also occurs due to the strong link between government aims and the self regulatory solutions offered by the industry which set out to achieve government aims. 19 At the national level, governments cannot rely upon legislation to regulate and govern the internet. This is because governments cannot react quickly enough to the rapid development of the internet.
Certainly, government action ought to be a last resort as the law always lags behind technology. 20 This can be demonstrated if we were to look at the nature of the parliamentary process itself in the UK. Indeed, encryption rules took seven years to develop in the UK. 21 Furthermore, the rules on the possession of extreme pornography will not come into force until January 2009. 22 Therefore, it is important that governments rely on additional and alternative regulatory models.
The Governments in most jurisdictions have acknowledged the fact that; '…the Internet is too widespread to be easily dominated by any single government… '23 Role to be played at the International Level: Public and Private bodies: Whereas the EU was originally developed for economic issues, it is now involving itself in criminal matters and cross-jurisdictional cooperation. Indeed, in 2003, it published the Council Framework decision on combating the sexual exploitation of children.
All EU Member States were required to implement the decision and work at the International level has been ongoing with the encouragement of the United Nations, whereby the World Summiton the Information Society was set up in relation to internet related documents. 25 The Geneva Action Plan was set up to identify the role of the stakeholders and had as its aim, to develop the infrastructure and access to the internet for poor regions such as Africa. 26 In terms of harmonization at the international level, some people would argue that private bodies can only achieve a shared global perspective in limited areas such as data protection and consumer laws.
However, the Organisation for Economic Co-operation and Development27 brings together the governments of countries committed to democracy and the market economy from around the world to: Sustain sustainable economic growth, boost employment, raise living standards, maintain financial stability, assist other countries, economic development and to contribute to the growth in world trade. 28 This International initiative is designed to improve regulation by providing a setting whereby governments can compare policies, seek answers to problems and learn from each others practices.
By working together, the aim is to achieve a higher level of expertise to ensure better regulation techniques. Similarly, the Cybercrime Convention recognises the importance of co-operation between Member States and seeks to come up with a common criminal policy aimed at the protection of society against cybercrime within the context of the continuing globalisation of computer networks. 30 The convention is designed to strike the right balance between the rights of law enforcement and respect for the fundamental human rights and fundamental freedoms.