to the Security, Openness and Privacy plenary session of the 7th Internet Governance Forum, Baku, Azerbaijan, 8th November 2012. EuroISPA and the European Commission jointly organized a workshop on ‘Protecting the rule of law in the online environment’.
November 2012. Participants were asked to describe what criteria they consider constitute adequate mechanisms for adjudication of disputes and complaints, whether there can be public confidence in processes developed with the input of stakeholders that are themselves one of the parties to complaints, and what structures they recommend be adopted in the design of complaint resolution procedures to respect the legitimate interests of all parties.
Malcolm Hutty, President of EuroISPA: My name is Malcolm Hutty, I am the President of EuroISPA, the European Internet Services Providers Association, and the Head of Public Affairs for the London Internet Exchange, here to present the report of Workshop 111, “Protecting the rule of law in the online environment” which was cosponsored by EuroISPA and the European Commission. I am pleased to say that we had a truly multi?stakeholder panel that involved all the sectors that are engaged with this broad debate. This included representatives from businesses that make complaints about behaviour and content on the internet on the grounds that it maybe legal, NGO’s representing citizens and those of journalists, a criminal law specialist, and from the government sector we had an intergovernmental organisation, a public official responsible for balancing policy options and an eminent legislator from the European Parliament. Even within the constraints of ensuring such a wide participation of sectoral representation we managed to ensure representation from 4 continents. I am particularly pleased to report that that included an NGO from Azerbaijan representing journalists here who sometimes have difficulties in issues regarding freedom of expression.
The context of our workshop really follows up from one aspect of what the previous workshop reported a moment ago, the questions around so-called “privatisation of law enforcement”. The real context is the risk that as the world moves ever more online, as the online world becomes an ever-more central part of the world economy and our everyday lives, we are moving to a condition where both content and behaviour is relies upon an online intermediary, where the off line world equivalent had no such intermediary. The presence of such intermediaries creates a new route for those who wish to complain about content and behaviour on the grounds that it is said to break the law or breach the rights of a third party, by putting pressure on the intermediary to apply sanctions on those responsible for the content or behaviour concerned. This raises questions about how to apply and protect the rule of law.
Thus we arrive at the core question for the workshop, how do we ensure that the rule of law and the principle of procedural fairness – what is known is some jurisdictions as the principle of “due process” – how do we ensure that these principles that we expect in the off line world are equally and effectively applied in the online context?
Now, as you can imagine, with such a large range of participants, there were many perspectives, and many valuable specific points were made that sadly there is clearly insufficient time to repeat here. Mr Chairman, the Internet Governance Forum is not a forum where we seek to make decisions or expect to reach universal agreement or consensus, but I am pleased to say that there were two key points of consensus which we arrived at, which were agreed by all those present.
First, the rule of law and questions of procedural fairness are invoked when intermediaries take action to intervene to suppress content and activity on the grounds that it is illegal or infringes the rights of a third party. That important principle was proposed by the Council of Europe and endorsed by those present.
Secondly, it was agreed that while illegal material and behaviour should be addressed, legal material and behaviour should not be removed or suppressed. This implies a need for mechanisms to distinguish between the two. Now, given that the first proposition that was universally endorsed, that means that questions to the rule of law and procedural fairness are invoked, it follows that those mechanisms to distinguish between the legal and the illegal must be ones that provide and respect the interests of the person who is complained about as well as the interests of those making the allegations.
This is an important principle that was also endorsed by all those present, and I suggest it provides an important foundation stone to any future discussions about the role of the rule of law in the online environment.
Thank you Mr Chairman.