Cyberlaw: 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

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‘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.’2

   

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

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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, ...

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