Where and How to Protect Legal Interests in the Digital Era

Author :
Guilherme Cooper Vicente

The session discussed the role of courts, public and private, in Internet governance (IG). The moderator, Dr Jovan Kurbalija, Director, DiploFoundation, introduced key trends which framed the debate: the increasing participation of courts in IG, growing challenges to the protection of citizens’ online rights, and the fact that we are at the brink of another information revolution, with artificial intelligence (AI) at the forefront. Welcoming remarks were made by Mr Michael Kleiner, Economic development officer, State of Geneva Directorate General for Economic Development, Research and Innovation (DG DERI), who provided a framework for the discussion as part of the Geneva Digital Talks, a process drawing on practical solutions and cyber expertise in Geneva. The Geneva Digital Talks will be concluded at the Internet Governance Forum in December and will hopefully continue in 2018.

The speakers set out the scene for the discussion: Dr Roxana Radu, Manager, Geneva Internet Platform (GIP), analysed the past regulation of traditional IG matters, contrasting them with present technological issues and emerging dilemmas. Mr Vincent Subilia, President, Swiss Chambers' Arbitration Institution (SCAI), provided a link between digital policy and the practice of arbitration in Geneva. Prof Dr Jacques de Werra, Vice-rector, University of Geneva, discussed how a system of micro-justice, based on values and standardisation, could assist in settling private Internet-related disputes that may arise between Internet platforms and their users.

Radu began by offering an overview of legal issues in Internet governance debates. Dividing her presentation into two parts, she first analysed the evolution of regulation in traditional IG matters, as well as the preferred legal instruments on a hard-soft law continuum. While in the late 1980s ‘hard’ instruments were the default option for regulating the Internet, post-1995 it was primarily via ‘soft’ mechanisms, such as guiding principles, model laws and global strategies that the Internet was regulated. The latter were also used to address the two greatest issues from 2005 onward, cybersecurity and civil liberties. In the second part, Radu discussed the legal implications, present and future, of three digital trends: sharing economy, digital rights, and AI. Using the examples of Uber (taken from a DiploFoundation original study) and Google to illustrate the first two tendencies, she approached AI differently, through questions concerning accountability, ownership, citizenship, and the social and political rights of robots (including replication, voting and taxation). To conclude, Radu posited that the hybrid nature of new business models produces legal uncertainty, whereas AI and emerging technologies require ethical clarifications to begin with.

Subilia established a link between the broad topics in digital policy and the practice of arbitration. SCAI has issued more than 1000 awards since its establishment. While it does not yet provide online services, this may fit within the organisation’s plans. Subilia stated that SCAI is contemplating adding innovative tools to its process in order to continually improve quality, cost-effectiveness and speed for awards (recognised in the 149 countries that ratified the New York Convention). On the matter of speed, Subilia noted that SCAI introduced an expedited process as early as 2004, ‘time is indeed of the essence’ such as for example when it comes to the domain names dispute resolution. Lastly, Subilia mentioned the recently launched ejust service as example of online arbitration.

According to de Werra, it is not uncommon for courts to step in when regulation is not clear enough. There is therefore no reason to worry if courts sometimes engage in digital policy making by rendering decisions in Internet-related cases. However, what poses a problem is the fact that private actors (specifically Internet platforms) can (and may even have to) engage in quasi-judicial activities by rendering decisions which could have a major impact on millions of Internet users around the globe. This is precisely what has been taking place since the well-known 2014 decision by the Court of Justice of the European Union on the so-called ‘right to be forgotten’ (more precisely the right to be de-indexed). Google has since had to decide on hundreds of thousands of requests for removing content, and the persons who were not satisfied with the decisions made by Google generally did not challenge the decisions before the relevant bodies because of the costs and other burdens associated with such proceedings. In the Internet age, traditional court proceedings before national courts do not appear as the most appropriate way to decide Internet-related disputes which can arise between Internet platforms and their users. Cases like the ones pertaining to the ‘right to be forgotten’ consequently confirm the need for a system of online micro-justice, whereby a neutral, trusted private party would judge each individual case in order to address the challenges of what de Werra has called ‘Massive Online Micro Justice’ (MOMJ). Geneva and Switzerland can bring their tradition and expertise in international dispute resolution in order to formulate digital dispute resolution policy proposals that would respond to the challenges of MOMJ. This is what the University of Geneva’s digital policy project, the ‘Geneva Internet Disputes Resolution Policies 1.0’ was intended for. Such a system should reflect key values, such as transparency, expertise and efficiency, and human-based justice (and not AI-driven justice).

Kurbalija encouraged the ensuing discussion by asking the panellists and the audience whether they ever needed access to justice in online matters, personally or institutionally. The ‘right to be forgotten’ procedures, data breaches imperatives, the lengthy time of court proceedings, and the disconnect between global technologies and local jurisdiction were among the topics addressed.

Explore the issues

Jurisdiction is the authority of the court and state organs to decide on legal cases. The relationship between jurisdiction and the Internet has been ambiguous, since jurisdiction rests predominantly on the geographical division of the globe into national territories. Each state has the sovereign right to exercise jurisdiction over its territory.

Privacy and data protection are two interrelated Internet governance issues. Data protection is a legal mechanism that ensures privacy. Privacy is usually defined as the right of any citizen to control their own personal information and to decide about it (to disclose information or not). Privacy is a fundamental human right. It is recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional human rights conventions. The July 2015 appointment of the first UN Special Rapporteur on the Right to Privacy in the Digital Age reflects the rising importance of privacy in global digital policy, and the recognition of the need to address privacy rights issues the the global, as well as national levels.

Arbitration is a dispute resolution mechanism available in place of traditional courts. Such mechanisms are used extensively to fill the gap engendered by the inability of current international private law to deal with Internet cases. An example is the Universal Domain-Name Dispute-Resolution Policy (UDRP), which was developed by WIPO and implemented by ICANN as the primary dispute resolution procedure.

In arbitrations, decisions are made by one or more independent individuals chosen by the disputants. The mechanism is usually set out in a private contract, which also specifies issues as place of arbitration, procedures, and choice of law. International arbitration within the business sector has a long-standing tradition.

Historically, telecommunications, broadcasting, and other related areas were separate industry segments; they used different technologies and were governed by different regulations.

 

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