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Information and communication law:
AN INTRODUCTION TO INFORMATION LAW, SOURCES OF LAW AND THE
LEGAL BACKGROUND OF THE RIGHT TO FREEDOM OF EXPRESSION AND
COMMUNICATION:
Information – different ways of defining it in the legal landscape:
- company law: the term information refers to laws which impose a duty on Authority to reveal information it holds;
- criminal law: information can refer to the formal accusation of a criminal offense made by a public official or prosecuting attorney.
- We study it: information as facts or data about someone or something and the way in which these facts are communicated to others and/or the public as well. More specifically, data because it contains information that is collected to be examined and considered for example to help decision making. Information law is a very broad field of law which includes rules on traditional media laws, press law, misleading and comparative advertising and so on. It is now an established feature of the legal landscape. Modern technology enables information to be collected, used, analysed and disseminated on an unprecedented scale:
- Individuals are increasingly concerned about the scope of their right to know, and about the security of their own personal data.
- The public and private sector alike recognize that information is a crucial asset, whether for combating crime and terrorism or for meeting customer needs. ➔ At the same time, there is widespread acceptance that the use of information needs to be governed by a robust legal framework. Most of the information is today shared via the internet and an increasing number of people use the internet every day. Technological innovation has changed the way information is produced, distributed and used. This is not a simple evolution of the public sphere of pluralist democracies, but a structural change that concerns the way where liberal democracies and the market economy have evolved together for about two centuries. The digital revolution is part of today’s society. Two crucial changes demonstrate that technological innovation triggered a radically different way of producing and distributing information: 1 - a really decentralized information production system: All you need is a computer, tablet or smartphone and be connected to the Internet to become information producers. Anyone can produce information internet, react to information shared by others, propose facts, ideas, criticisms, new points of view, photos, videos. This can be possible just creating a site, a blog, using a social media, sharing a tweet, joining a chat, posting a video on YouTube, or photos and comments on Instagram.
We have entered a new information age, which Yochai Benkler has defined the “network information economy”. Its main features can be summarized as follows: a) the production of information is radically decentralized, so each user of the web becomes a potential producer of information; b) electronic devices are affordable, this makes it easy to access and communicate on the internet. Hence information and cultural production are in the hands of the world population (about two billion people); c) information flows have an open and global character. 2 - In order to make this huge mass of information and data available, the role of the subjects capable of ordering it becomes essential also to facilitate the connection between those who produce information and those who want to receive it. This task is accomplished by search engines and social media = They can be defined as information gatekeepers in cyberspace, as they connect producers and users of information and, with their algorithms, order information. The internet is open but only a few gatekeepers (such as Google and Facebook, and then Twitter, YouTube, Instagram) manipulate most of information on the web.
- the consumption of information on the Internet is growing, because most of individuals are always connected thanks also to;
- the consumption related to the traditional information industry is significantly dropping and in particular the paper-based edition of newspapers seems to be in decline. Television resists, but there is a considerable reduction in its use as well. So, the internet has become a privileged way to access to information, and share contents. ➔ two fundamental rights that need to be balanced: freedom of expression and information (which are closely related to net neutrality) and protection of user data. SOURCES OF LAW: They are acts or facts that fit for producing law:
- acts, like ordinary law and the acts having force of law: decree laws and legislative decrees referred to in article 77 of the Italian Constitution;
- facts, customary law, which consists of two elements:
- a behaviour constantly repeated over time (objective element: diuturnitas);
- the relevant actors consider it to be law (subjective element: opinio iuris ac necessitatis). They are hierarchically organized in a pyramid, where at the:
- Bottom – sources of law which are weaker in terms of power;
- Top – sources of law which have more power;
- Middle – sources of law that prevail on the ones at the bottom but succumb to the ones at the top. TOP OF THE PYRAMID:
top
middle
bottom
and do not form part of the formal legislative procedure, but are used to express general or specific plans of the Commission. These could be an intention to propose new or review existing legislation or be guidance on legislation. → At a lower level of the pyramid, we find ordinary laws and acts having force of law → primary sources of law. If a rule contained in these laws is in contrast with a constitutional norm, the latter will prevail. Even at a lower level we find secondary sources of law, such as administrative regulations. At the bottom of the pyramid there is customary law. THE REGULATORY FRAMEWORK OF THE RIGHT OF INFORMATION AT THE HIGHEST LEVEL OF THE PYRAMID: The right to inform and to be informed can be considered a part of the broader principle of freedom of expression, which is recognized and protected by our Constitution, International Treaties, European Charters and Conventions and so on. Provision contained in our Constitution: The constitutional background of freedom of expression can be traced in Article 21 of our Constitution → Art. 21 provides that Anyone has the right to freely express their thoughts in speech, writing, or any other form of communication. The press may not be subjected to any authorization or censorship. Seizure may be permitted only by judicial order stating the reason and only for offences expressly determined by the law on the press or in case of violation of the obligation to identify the persons responsible for such offences. In such cases, when there is absolute urgency and timely intervention of the Judiciary is not possible, a periodical may be confiscated by the criminal police, which shall immediately and in no case later than 24 hours refer the matter to the Judiciary for validation. In default of such validation in the following 24 hours, the measure shall be revoked and considered null and void. The law may introduce general provisions for the disclosure of financial sources of periodical publications. Publications, performances, and other exhibits offensive to public morality shall be prohibited. Measures of preventive and repressive measure against such violations shall be established by law. While the background of freedom of communication can be found in Art 15 of the Constitution → Art. 15 states that Freedom and confidentiality of correspondénce and of every other form of communication is inviolable. Limitations may only be imposed by judicial decision stating the reasons and in accordance with the guarantees provided by the law. FREEDOM OF EXPRESSION: Other aspects of the right to freedom of expression are:
- the right to silence in the sense of the right to not express what one thinks;
- the right to use any tool to spread thoughts;
- the right to inform (freely spread news) and to be informed. The only limitations to these rights are identified with:
- good customs (expression cannot be contrary to good customs, a general clause the content of which is often identified by courts in judgments),
- the right to privacy and
- the right to honour. The right to freedom of expression in our legal system includes the freedom of the press (news reporting) and the right to criticize, which exclude criminal and civil liability.
- Freedom of the press → The first applies to journalists while doing their job. The Court of Cassation has held that the exemption operates when the news is true, exists a public interest to share this news and the information is expressed in an objective and serene way, with a correct and inoffensive language (Cass., 4 February 2005, n. 4009). The exemption of the right of reporting can be invoked for instance in the case of the journalist who, in carrying out the information task guaranteed to him by art. 21 of the Constitution, discloses through the press news, facts or circumstances that are considered harmful to the honour or reputation of others, provided that the disclosure remains contained within the limits that circumscribe the disclosure of the information activity deriving from the protection of other interests constitutionally protected (Italian Constitutional Court, judgment no. 175/1971).
- Right to criticize → it is identified with the expression of an assessment or, generally speaking, of an opinion which is not objective itself. The exemption cannot be invoked when the reporter makes personal attacks aimed at harming the individual sphere of the criticized subject (Cass., 25 January 2005, n. 2247). Generally speaking, the Italian constitutional court case law has constantly highlighted that freedom of expression is a right of paramount importance in our legal system, as it is closely related to the concept of democracy itself. In particular, the Court:
- has held that freedom of expression « is among the fundamental freedoms proclaimed and protected by our Constitution, one of those [...] that best characterize the current system in the State, a condition of the way of being and of the development of the life of the country in all its cultural, social and political aspects» (judgment no. 9 of 1965).
- has also stressed that the right provided for by art. 21 of the Constitution is arguably the highest of the « primary and fundamental rights » enshrined in the Constitution (judgment no. 168 of 1971).
- Hence freedom of expression falls, according to the Court, within the « inviolable rights of man » pursuant to art. 2 of the Constitution (judgment no. 126 of 1985), with the consequence, on the one hand, that the Republic has the duty to guarantee it also towards private individuals (in the sense that beyond dispute freedom of expression must impose respect for everyone, public authorities as well as associates, and that no one can harm this right, judgment no. 122 of 1970).
- The same Court has placed a strong emphasis on the relationship between freedom of expression and democracy, qualifying freedom of expression as the « cornerstone of the
It construes freedom of expression broadly and the exceptions to which it is subject, narrowly: In its early case of Handyside v. the UK (7 December 1976), the court proclaimed that the right to freedom of expression ‘is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’’. In line with this broad conception of the right to freedom of expression, the protection under Art. 10 ECHR also extends to the sharing of information that is strongly suspected to be untruthful. In Salov v. Ukraine (6 September 2005), the ECtHR held that: «Article 10 of the Convention as such does not prohibit discussion or dissemination of information received even if it is strongly suspected that this information might not be truthful. To suggest otherwise would deprive persons of the right to express their views and opinions about statements made in the mass media and would thus place an unreasonable restriction on the freedom of expression set forth in Article 10 of the Convention». It follows that laws that generally prohibit the dissemination of disinformation merely on the ground of its falsity, without regard for additional factors such as the harm caused to personal rights, are likely to fall foul of the right to freedom of expression under Art. 10 ECHR. There is only one particular case of untruthful expression in which the ECtHR has taken a zero- tolerance stance, namely the falsification of history by way of Holocaust denial claims. In the Garaudy case (Garaudy v. France, 24 June 2003), the ECtHR held that the real aim pursued by Holocaust deniers was to rehabilitate the National Socialist regime and to accuse the victims of falsifying history, thus defaming them and inciting racial hatred against them in a manner that would run counter to the very values which the Convention sought to promote. The ECtHR has been prepared to accept the criminal prosecution of this particular form of disinformation on the ground of its pernicious effects on the reputation and rights of the Jewish community. The ECtHR has recognized the important role of the internet « in enhancing the public’s access to news and facilitating the dissemination of information in general’ and of user-generated expressive activity online as ‘an unprecedented platform for the exercise of freedom of expression» (Cengiz and Others v. Turkey, 1 December 2015). Moreover, as to the importance of Internet sites in the exercise of freedom of expression, the Court reiterates that « In the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general» (see Times Newspapers Ltd v. the United Kingdom, ECtHR, 2009). User-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression (see Delfi AS v. Estonia [GC], ECHR 2015). In this connection, the Court observes that YouTube is a video-hosting website on which users can upload, view and share videos and is undoubtedly an important means of exercising the freedom to receive and impart information and ideas.
At the same time, the Court has acknowledged the risk of defamatory allegations and hate speech or other unlawful speech spreading like wildfire and leaving an indelible mark online (Delfi AS v. Estonia, 16 June 2015). Despite this heightened risk of harm, the ECtHR opined that the internet «is not and potentially will never be subject to the same regulations and control’ as the printed media» (Editorial Board of Pravoye Delo and Shtekel v. Ukraine, 5 May 2011). Freedom of expression is also recognized in the Charter of Fundamental Rights of the European Union (it brings together the most important personal freedoms and rights enjoyed by citizens of the EU into one legally binding document. The Charter was declared in 2000 and came into force in December 2009 along with the Treaty of Lisbon). In particular, art. 11 of the EU Charter of Fundamental Rights, similarly to art. 10 of ECHR (the first paragraph is the same), lays down that: «1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The freedom and pluralism of the media shall be respected». Case law: The Court of Justice of the European Union (CJEU) has recognized the importance of the right to freedom of expression as an essential foundation of a democratic society, a pplicable to all information and ideas, including those that ‘offend, shock or disturb’. - In Connolly v. the United Kingdom (C-274/99, Connolly v. Commission 2001), a case concerning the right to freedom of expression of a European civil servant, the CJEU held, in close alignment with the European Court of Human Rights (ECtHR) case law, that any limitations to this right must be interpreted restrictively and measures of prior restraint require particular consideration. This broad protection of the right to freedom of expression suggests that the CJEU would be reluctant to uphold responses to mis- and disinformation that could have chilling effects, such as censorship or online surveillance. The following discussion will consider the proportionality of less draconian measures which fall short of content removal. Content governance measures that affect the ranking and findability of content can still have an incisive impact on the free flow of information, even without taking it down. Recently, however, the CJEU has arguably lessened the protection afforded to freedom of expression and its corollary, the right to information, tilting the balance towards the rights to privacy and data protection (See the observation by AG Szpunar in his Opinion to Case C-136/17, GC and Others v. CNIL [2019]). - In its landmark judgement in Google Spain (C-131/12, Google Spain v. AEPD and Mario Costeja González [2014]), the CJEU held that, as a general rule, the data subject’s rights under Arts. 7 and 8 of the Charter override the interest of internet users in having access to information. The exact balance «may, however, depend in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life».
➔ The intervention, therefore, could not concentrate on furthering only the Single Market aims but had to include individual freedoms. As a result of this tension, two focal points of EU intervention in the field of Internet law began to crystallize:
- centred around the Single Market → it reflected the ideal of a unified European market for goods, services, people and capital and the belief that this aim cannot be achieved without a single market for electronic commerce. In modern days, this is often called the Digital Single Market project.
- Centred around consumers → it reflected the EU’s determination to protect the individual. This idea has its strongest manifestation in EU privacy and consumer laws. ➔ Both aims were asserted strongly, beginning from treaty provisions, through Directives and judgments. The presence of both aims in EU instruments gave conflicting results. EU LEVEL: the Community body of laws relating to the Internet, at present, is not joined in a common overarching structure guided by Single Market-informed policies, instead, it is an aggregate of connected secondary laws reliant on the European Commission (‘the Commission’)’s interpretation as the cases slowly trickle (pass) through the Court of Justice of the European Union (CJEU).
- The instruments normally referred to as ‘Framework D irectives’ act as frameworks only for the specific areas they cover (such as electronic commerce or telecommunications).
- The policy instruments (such as Strategies, Action Plans or Green and White Papers) have indirect influence on the multitude of Directives in fields other than their own.
- Many projects were begun in the 1990s, at a time when the Internet was in its infancy and its potential impact poorly understood, but continue to this day.
- Other projects were drafted in fulfilment of the Europe an Union’s international obligations, partially under the influence of commercial forces and lobbies.
- Others yet were a result of the work of the Council of Europe, the EU lacking the required competence.
- Finally, the regulatory set-up is mainly vertical, consisting in e-commerce, telecoms and media as three large target areas. The modern Internet increasingly requires horizontal approaches that cross these ‘siloes’. US LEVEL: policies and legislation on the other side of the Atlantic appeared more transparent, individual interests were easier to trace and public debate seemed louder. The drafting of such laws as the hotly disputed 1998 Digital Millennium Copyright Act (DMCA) in the United States was followed by a public and academic debate, the formation of interest groups and clashes in the Congress. In the United States, the battles also raged (and continue to do so) over speech regulation on the Internet in light of the First Amendment, as well as over privacy and the role of intermediaries. In Europe, some of these issues remained altogether unnoticed for the larger part of the early 2000s, while many others were observed dispassionately. It was only after 2011, with the net neutrality debate, the Snowden revelations, the advance of GDPR and the revelations concerning
business practices of large platforms, that public interest in telecommunications and data protection regimes respectively began to stir. From a linear model characterized by exclusive content being placed by individual corporations, the Web has moved towards a collaborative, interoperable, user-centred platform and, further, to a platform enabling large degrees of personalization. At the same time, the telecommunications (carrier) and audio-visual and e-commerce worlds (content) began to converge. The Internet itself gradually started to be more accessible through mobile platforms such as smartphones and SIM-enabled tablets and laptops. The Web itself has evolved from a passive medium into a platform, from a released and finished package into a constantly changing, dynamic “permanent beta” like open access and open source. Much of daily life had migrated to the Internet to the extent that the Internet became representative of our culture and we (the users) have transformed our identities. INTERNET ARCHITECTURE: Three groups of features: layered structure, end-to-end nature, neutrality LAYERED STRUCTURE – it describes the Internet’s heterogeneous nature and the complexities of its hardware, software and substance: the Internet is not homogeneous but rather composed of different layers → “regulation should be directed at or match the layer where the problematic conduct arises.” END-TO-END ARCHITECTURE – it refers to the Internet’s decentralized nature and its lack of dependency on a central distribution system. This architecture depends on packet switching, decentralized standard-setting, cryptography and anonymity. Packet switching - the computers are independently managed but connected in a network and adhere to a common standard enabling them to communicate (the TCP/IP protocol) →it enables the data to be broken into packets, which are then transmitted through the network of intermediaries and reassembled in the target computer. The data can use any route available on the way but the route chosen does not have an impact on the quality of the ultimate information received. This feature of the Internet is a result of the desire of the original client (the US Defense Department) to make the network resistant to failures of individual communication lines. Directly in connection with this is the decentralized standard-setting. Although the original network arose under the auspices of the US government, the actual standard- setting is performed by non-governmental bodies:
- the Internet Engineering Task Force (IETF)
- the World Wide Web Consortium (W3C),
- the very influential organization in charge of the domain names is the Internet Corporation for Assigned Names and Numbers (ICANN). Connected with these features are anonymity and cryptography. A varying degree of anonymity is available and even guaranteed to users on the Internet.
As a consequence of the described architecture, the Internet is open – not susceptible to authorizations either at the production or at the user end. At the same time, these features make it a subject and target of numerous interests: international, national, corporate and individual. ➔ In summary, understanding the Internet’s architecture is a prerequisite for good governance of the Internet. MAKING LAWS FOR THE INTERNET: INTERNET GOVERNANCE The question is “the Internet can be governed at all?” The wave of popular enthusiasm (a certain kind of optimism) is best represented by ‘A Declaration of the Independence of Cyberspace’ written by John Parry Barlow. In memorable words, Barlow said: “ We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.” We now know that the ‘ global social space we are building’ is not naturally independent of tyrannies and that governments do have methods of enforcement that both corporations and individuals have reasons to fear. Other ideas have crystallized into policy and decidedly shaped the Internet, among these, few are as indicative of the formative phase of the Internet or as important for the course that it took as ex- President William Clinton’s ‘A Framework for Global Electronic Commerce .’ The principles which it contains, informed by the liberal 1990s, have pushed the Internet from a purely regulatory environment into governance, from hard to soft law and from public to private regulation. The Clinton framework notes that the expansion of the Internet has been driven primarily by investment from private corporations. In order to maintain the acquired freedom, the regulatory ‘nudge’ is supplied in the form of a simple idea that the Internet must not be regulated but ought to be market-driven, and that markets and not governments are the most efficient regulators. To ensure future development, businesses and consumers should maintain their central role with as little government intervention as possible. On the contrary, governments should encourage self-regulation and create such environments that would enable free and unhindered development of the Internet. Following from that, governments should avoid undue restrictions and, where their involvement is needed, ‘its aim should be to support and enforce a predictable, minimalist, consistent and simple legal environment for commer ce’. Governments should also recognize the unique qualities of the Internet and not attempt to fit the Internet to the legacy regime developed for telecommunication services. Finally, e-commerce should be facilitated on a global basis → The ideas developed here were followed in the European Union’s Initiative in Electronic Commerce from 1997 and permanently informed most of the core EU Internet regulatory efforts. Internet governance does not have a precise definition → The Working Group on Internet Governance defines Internet governance in the following manner: “ Internet governance is the development and application by Governments, the private sector and civil society, in their respective
roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet”. ‘Governance’ vs pure regulation: governance applies to international organizations, citizens and businesses in addition to governments understood in a traditional sense. It is an attempt to address a global phenomenon by global action. ➔ The importance of the above definition lies in the recognition of the fact that the Internet is not ruled or shaped purely by laws or regulation but that it spreads to all ‘principles, norms, rules, decision-making procedures, and programmes’ that shape the Internet. It requires something more than pure traditional regulation. The concept of “ new governance” in the European Union : the mere usage of the term governance suggests that the approach in the EU is already changing from ‘command - and- control’ towards a ‘regulatory’ one. Some of the features that can be used to describe it include ‘diversity’, ‘revisability’ and provisional character. Others are participation of the affected, transparency, openness, evaluation and review. A central authority would have the task of coordinating the new governance and facilitating ‘the emergence of new infrastructure’. Another term which has an autonomous EU meaning is multi-stakeholder governance = different stakeholders, including non-government and commercial entities, are all involved in Internet governance. Since its inception in 2009, the approach has already found its way into several initiatives: the European Multi Stakeholder Platform (MSP) on ICT standardization set up at the end of 2011, it typically holds four meetings a year and helps with ICT standardization. The dominant EU paradigm is, therefore, that the Internet ought to be governed rather than purely regulated. But how is the right balance chosen between intervention of national governments, involvement of independent bodies and of corporations and the power of the medium, which has, it seems, a significant potential to regulate itself? Which governance model preserves the autonomy of the Internet, its liberalizing potential and its networking power while enabling the state to regulate? → we need to find the right balance! How? Looking purely in terms of traditional regulation, there are four (exclusive or concurrent) potentially applicable governance models: MODEL 1 – it presupposes the extension of territorial sovereignty → it assumes that the present legal paradigm based on state territorial sovereignty is adequate for Internet regulation, and its proponents say that the state can simply adapt its current laws to apply to the Internet. The latter is not a separate entity that exists outside national borders, but, on the contrary, is largely subject to national jurisdictions which states can and should take advantage of. A large proportion of activity on the Web does rely on this model, ranging from protection and enforcement of intellectual property rights to data protection, taxation or consumer protection. The Internet can be contained in as much as this localization is present = to the extent that the users and the networks are found in individual geographic locations, the rules that apply to them will also be local. This prevents neither the globalizing nor the liberalizing effect of the Internet which both derive from its architecture.
based on. Any impact on the regulatory regime also brings changes to the architecture itself, making it more or less restrictive. The present Internet is liberal only because it is built on architecture not easily subject to centralized control, but, although this may evoke the vision of the invisible hand leading the Internet, one of Lessig’s most important ideas is that cyberspace should not be left to the invisible hand: “ [W]e have every reason to believe that cyberspace, left to itself, will not fulfil the promise of freedom. Left to itself, cyberspace will become a perfect tool of control ... The invisible hand, through commerce, is constructing an architecture that perfects control.” Or, in another place: “ We can build, or architect, or code cyberspace to protect values that we believe are fundamental. Or we can build, or architect, or code cyberspace to allow those values to disappear.” However, the issues are of considerable complexity. Closely related to the link between code and law is the idea that the Internet is not suited to direct legal control and needs a more flexible approach in the form of self-regulation.
- Self-regulation = the delegation of regulatory powers from state to non-state entities comprising of industry representatives.
- Deregulation = which is the reduction of excessive governmental control
- Non-regulation = complete absence of regulation
- Governance = a general term for a move from regulation to less government-oriented approaches In Europe, self-regulation started to gain prominence in the Internet area in the late 1990s. The EU itself supports self-regulation, which is mentioned in various EU policy documents, but also endorses co-regulation, which is a combination of state and non-state regulation. Typically, an organ with statutory authority to regulate an area delegate to the industry but maintains a degree of oversight. In the 2005 EU-commissioned study on co-regulation, this model was seen as a viable option as long as transparency and openness were maintained. Marsden has argued that co-regulation as a model, which involves the cooperation of Member States, corporations and the EU, is drawing to an end thanks to the slowing down of the dynamic market entry of the early Internet. Furthermore, the right balance between regulation, self-regulation and co-regulation is particularly important today where it is not obvious how issues such as hate speech or fake news can be controlled → we need to find the right balance! Article 16 of the 2000 Electr onic Commerce Directive, entitled ‘Codes of Conduct’ specifically supports self-regulation. It provides that Member States and the Commission shall encourage: (a) the drawing up of codes of conduct at Community level, by trade, professional and consumer associations or organisations, designed to contribute to the proper implementation of Articles 5 to 15; (b) the voluntary transmission of draft codes of conduct at national or Community level to the Commission; (c) the accessibility of these codes of conduct in the Community languages by electronic means;
(d) the communication to the Member States and the Commission, by trade, professional and consumer associations or organisations, of their assessment of the application of their codes of conduct and their impact upon practices, habits or customs relating to electronic commerce; (e) the drawing up of codes of conduct regarding the protection of minors and human dignity. In addition, Member States and the Commission shall encourage ‘the involvement of associati ons or organisations representing consumers’ in the drafting and implementation of codes of conduct affecting their interests and drawn up in accordance with paragraph (a): ‘Where appropriate, to take account of their specific needs, associations representing the visually impaired and disabled should be consulted.’ The European Union relies on all four models of regulation, but the coexistence of the models does not ensure a ‘free’ Internet, nor does it make the EU a liberal regulator. The perceived and desired freedom of the Internet is a function of many factors. In the European Union, first among them is the Single Market. As the raison d’être of the Community, this aim features prominently in all Community legislative measures. However, tensions are present between the Single Market, on the one hand, and other treaty values, such as the protection of private life, fundamental rights or consumer protection, on the other. Furthermore, the Internet originated in the United States and much of the development, control and legal problems are inextricably tied to it. Solutions to problems in cyberspace inevitably often also need to be American solutions. One of the biggest challenges placed before EU regulators today is facing the United States’ regulatory power and providing an alternative to it. The Internet developed in the United States and its current ‘look and feel’ is a result of that development. Its main features were a result of both the architecture and the deregulatory approach mandated by the Federal Communications Commission. The architecture, set up in the early 1960s and 1970s, and careful regulation in the 1980s led to the booming of the medium in the 1990s and its ubiquity in the twenty-first century. The European Union can never match this historically given fact. Neither does it have to. Its regulatory choices are determined by its own history and environment. DOMAIN NAME REGULATION AS AN ASPECT OF GOVERNANCE: The control of domain name assignment was from the very beginning conducted on behalf of the US government by other organizations, notably the Internet Assigned Numbers Authority (IANA). This organization was established under a contract with the US Department of Defence and put in charge of overseeing global Internet Protocol (IP) address allocation, Domain Name System (DNS) root zone management, and other Internet Protocol assignments. In reality, it was a small group of people, directly supervised by Jon Postel of the Information Society Institute of the University of South California. On 24 December 1998, IANA entered into a transition agreement with the Internet Corporation for Assigned Names and Numbers (ICANN) and transferred its functions to it, effective on 1 January 1999. The United States has, directly or indirectly, been in charge of assignment of names and addresses since the inception of the Internet and is very reluctant to hand over that control to an international body. At a World Summit on the
than only to the US government. The model, which had been agreed on in 2014, is a result of voluntary agreement between ICANN and the US Department of Defence (DOD). The European Union plays a marginal role in the sphere of Internet governance. EU COMPETENCE TO REGULATE: When transferring parts of their sovereignty to the Union, Member States placed safeguards in the Treaty on European Union (TEU) ensuring that EU legislation has a proper legal basis, is proportionate to the objective to be achieved and does not violate the principle of subsidiarity. The authority to legislate in the sphere of information technology, intellectual property, telecommunications or, specifically, the Internet derives from several legal bases and is subject to different procedures: among these are the free movement of services provisions, Articles 49 and 56 TFEU. The Single Market legal basis, contained in Article 114 TFEU, is the most widely used legal basis in the EU, both in general and for various laws affecting the Internet. The use of the Single Market legal basis has been subject to judicial scrutiny since its introduction in the Single European Act in 1986. In order to speed up the completion of the Single Market, it enabled laws to be adopted more easily with only a qualified majority instead of the more common uniformity. EXAMPLE OF CASE STUDY: The culmination came in 1998 with the “Tobacco Advertising” judgment in which the (then) European Court of Justice ruled that Article 114 TFEU could not be used as a general legal basis in the absence of other bases. On the contrary, that basis is available only when there is a genuine Single Market aim. After the Tobacco Advertising judgment, in other words, it is much more difficult to rely on the Single Market basis. Doubts remain as to whether the breadth and the scope of intervention which it enables in Internet regulation can be squared with the principles of subsidiarity and proportionality. It is doubtful whether subsidiarity = which is the idea that law-making powers should be located at the lowest level of government, close to the citizens, is duly taken into consideration in some of the Directives. Subsidiarity rests upon a dual test: not only are Member States not in a position to achieve the objective but the Community itself, by reasons of scale or effect, is better suited to the task. The claim that serious disruptions in the Internal Market result from lack of harmonization in these areas is tenuous. A typical instance is found in Recital 6 of the Preamble to the now defunct Data Retention Directive: “ The legal and technical differences between national provisions concerning the retention of data for the purpose of prevention, investigation, detection and prosecution of criminal offences present obstacles to the internal market for electronic communications, since service providers are faced with different requirements regarding the types of traffic and location data to be retained and the conditions and periods of retention ”. No ‘obstacles to the internal market for electronic communications’ had been presented by industry representatives in the months leading to the adoption of the Directive. On the contrary, it is possible to argue that the new requirements present an additional burden for corporations. The principal objective, moreover, is not to contribute to the Internal Market but to help combat
serious crime. Examples of these kinds of problems can be found in almost every EU Directive affecting Internet law. On the surface, the EU seems to respect the principle of proportionality as it opts for Directives more often than Regulations and for framework instruments when possible. It can be argued that some Community Directives lack proportionality. The TFEU provisions serve not only as a legal basis for most of the EU’s Internet laws but also as a general backdrop for Internet activity in the Community. In that sense, it is to be expected that the Community Single Market law will be applicable in this area. That law, as developed in the CJEU’s cases, states that both discriminatory and non-discriminatory obstacles to trade in goods and services are illegal unless specifically justified in the Treaty or by reference to the Court’s own exceptions. Very few cases concerning the Single Market coming from the CJEU specifically focus on the Internet and those that do, do not necessarily establish far-reaching principles_._ This is a result of the fact that Internet law is largely harmonized in the EU, making a direct reference to Treaty rules usually unnecessary. Nevertheless, the cases serve to support the point that measures restricting the sale of goods or provision of services on the Internet are illegal, unless otherwise justified in the Treaty or by reference to the Court’s case law. An example of the Court’s approach to purely Single Market cases is found in DocMorris : In that case the issue was whether a Dutch company which legally provided pharmaceutical services via a dispensary in the Netherlands, by mail order and on the Internet, can also provide them on the Internet in Germany, where such sales are restricted to authorized pharmacies. The Court, after careful consideration of all the conditions of sale and the classification of drugs, decided that a national measure restricting such sales is a measure having equivalent effect, normally justifiable under Article 36 TFEU but not so if the prohibition is absolute. In Gambelli case , it was held that the Italian prohibition on online gambling was in violation of the provisions on free movement of services.
- Both cases illustrate nothing more than the Court’s willingness to apply its developed Single Market doctrines to the Internet. The CJEU cases, although numerous, do not normally revolve around constitutional protections of the four freedoms but concentrate instead on these freedoms’ implementation in the specific Directives. EUROPEAN POLICY ON INFORMATION TECHNOLOGY: HISTORY: The history of the EU’s interest in Internet law is relatively long. Although relevant intellectual property (IP) and data protection laws pre-date the earliest Internet laws, specific e-commerce initiatives can be dated to the mid-1990s. Several documents provide an indication of the drive behind the EU Directives to be analysed. Historically, the first document of interest to Internet law and the one to colour the EU’s subsequent approach to the Internet is the European Initiative in Electronic Commerce from
