The regulation of the internet has only been a globaly discussed issue in the past 15 years, but the World Communications Conference (WCIT) 2012 in Dubai has shown that the contemporary souvereignty concepts and the purely private regulatory approaches to be equally ineffective, as they were originally intended by the ICAAN with the allocation of domain names. It is of much greater importace to find intermediate forms that justify the concept of including all relevant participants (multistakeholderism). The word „multistakeholderism“ was formed by a group of experts in preperation of the World Summit on the Information Society (WSIS) II in Tunis; since then, international organisations and governments habe tried to increasingly obtain the ideas and perspectives of different groups, most clearly in the context of the Internet Governance Forum (IGF). This new literature does distinguish itsself through a deeper discussion of internet regulation modells (Suggestions incude code-orientated regulation, various network theories, informal lawgiving and the modell of normative expectations), a comprehensive overall view is still missing however. The development of basic structures for regulation modells requires an interdisciplinary approach which, taking into account new types of problems (access to information, data protection, social networks, the proteciton of individual works, etc.), still has yet to prove itsself. The consideration of technical innovations in the regulatory debate is of equal importance as the registration of changes in the political decision-making structure.
ICT and Human Rights
The tremendous developments in information and communication technologies (ICTs) over the last 20 years have substantially changed communication practices across the world. The Internet and mobile phones help to open new horizons for connections between people, leading to a global network for the sharing of information and ideas. In this new environment, human rights need to have a place and traditional notions related to mass media need to be adapted to the needs of civil society. Freedom of expression has become much more individualistic, with information exchanges no longer relying on the traditional intermediaries (mass media) but on the exchange of ideas on social networking and other platforms. Civil society participation in the information world requires the necessary infrastructure however. And since states have an obligation to see to it that human rights are realized in practice, this may mean the facilitation of private investments to improve the ICT infrastructure. In this context, ICT policies favoring human rights must encompass a right to development.
Violation of Human Rights and Liability Issues
Based on a recent decision of a Canadian court not to strike a claim regarding possible violations of human rights related to a former subsidiary in Guatemala, a comparative look to relevant conditions in a civil law environment might be of interest. Allowing a human rights tort to claim in the respective case concerns the liability of parent companies for its subsidiaries. Multinational corporations are normally structured in parent subsidiary relationships for a variety of managerial, regulatory, and tax reasons. It is obvious that potential corporate liability under any regime incentivises multinational operations to structure themselves so that whenever agents who do not respect human rights will be held responsible this stays within the sphere of an impecunious foreign subsidiary or a subsidiary not subject to jurisdiction where the parent company is seated. This strategy then motivates plaintiffs, to invoke veil-piercing, direct liability or similar doctrines to tap the financial capability of the parent company.
New Technologies and Privacy Protection
With the virtual world increasingly gaining importance the enforcement of privacy rights becomes more and more difficult. An important emanation of this trend is the right to be forgotten enshrining the protection of the data subject’s rights over his/her “own” data. Even though the right to be forgotten has been made part of the proposal for a completely revised Data Protection Regulation and has recently been acknowledged by the Court of Justice of the European Union (“Google/Spain” decision), to date, the discussions about the right to be forgotten and especially its implementation with regard to the fundamental right to freedom of expression have remained rather vague and need to be examined in more depth.
Prof. Dr. Weber, December 2015