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Friday, 25 May 2018 12:11

Time for international law to take the Internet seriously

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Internet-related legal issues are still treated as fringe issues in both public and private international law. Anyone doubting this claim need only take a look at the tables of content from journals in those respective fields. However, approaching Internet-related legal issues in this manner is becoming increasingly untenable. Let us consider the following:

  • Tech companies feature prominently on lists ranking the world’s most powerful companies. For example, on Foreign Policy’s list of “25 Companies Are More Powerful Than Many Countries” ten of the listed companies are from the tech industry, and perhaps somewhat less importantly, six of the top ten companies on Forbes’ list of the world’s most valuable brands are tech companies (with the four top spots being Apple, Google, Microsoft and Facebook);
  • With its more than two billion users, Facebook alone has more ‘citizens’ than any country on earth; and
  • No other communications media comes even close to the Internet’s ability to facilitate cross-border interactions – interactions that may have legal implications.

While statistics may be used to prove just about anything, the message stemming from the above is clear and beyond intelligent dispute: cross-border Internet-related legal issues are central matters in society and need to be treated as such in public and private international law.

“Smartphone Screen” by TeroVesalainen. CC0 Public Domain via Pixabay.

A particularly relevant matter is that of Internet jurisdiction. The harms caused by the current dysfunctional approach that international law takes to jurisdiction are as palpable as they are diverse. The territoriality-centric approach to jurisdiction causes severe obstacles for law enforcement’s fight against both traditional and cyber-crime, it undermines the protection of important human rights, it amounts to an obstacle for e-commerce, and it creates uncertainties that undermine the stability online with an increased risk for cyber conflict as the result. Thus, Internet jurisdiction is one of our most important and urgent legal challenges. And we all need to get involved.

No more ‘regulatory sleep-walking’:

There are many notions regarding jurisdiction in general, and Internet jurisdiction in particular, that are widely relied upon in the academic community and beyond. The two key sources for those notions are the (in)famous 1927 Lotus case, and the widely cited, but poorly understood, Harvard Draft Convention on Jurisdiction with Respect to Crime 1935 – both seen to put the supremacy of the territoriality principle beyond question. With a somnambulant-like acceptance, these authorities are treated as clear, exhaustive, and almighty.

However, those who have truly studied jurisdiction in detail generally take a different view. For example, Ryngaert and Mann have both questioned whether the Lotus decision remains good law.

A new paradigm:

I believe that we must move beyond the current territoriality focused paradigm of how we approach jurisdiction and have advanced an alternative jurisprudential framework for jurisdiction: In the absence of an obligation under international law to exercise jurisdiction, a state may only exercise jurisdiction where:

  1. There is a substantial connection between the matter and the state seeking to exercise jurisdiction;
  2. The state seeking to exercise jurisdiction has a legitimate interest in the matter; and
  3. The exercise of jurisdiction is reasonable given the balance between the state’s legitimate interests and other interests. That work is, however, just a starting point for further discussions.
“Office” by StartupStockPhotos. CC0 Public Domain via Pixabay.

Not just a matter for Internet lawyers:

Internet jurisdiction is not just a matter for Internet lawyers, it is not just a matter for the public international law crowd, and it is not just a matter for those inhabiting the domain of private international law – Internet jurisdiction is a key issue in all of these fields. And, importantly, it is a matter we will only be able to address when the experts from these fields join forces and approach jurisdiction in an open-minded manner.

To this, we may add that addressing Internet jurisdiction is not just a matter for the academic or legal community. It is for us all— industry, government, courts, international organizations, civil society, and the academic community— to help achieve useful change. Furthermore, those engaged in capacity-building initiatives must recognize that they need to incorporate capacity building in relation to a sound understanding of the jurisdictional challenges and solutions.

Much work lies ahead. But it is crucially important work and we must now turn our minds to these issues to which we, for far too long, have turned a blind eye.

Source: This article was published blog.oup.com Dan Svantesson

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