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Forum Paper Title: Internet regulation and the role of International Law
The first major legal discussion about the Internet was devoted to the question of its resistance to regulation, due to the “virtual” nature of its existence. Nevertheless, national laws have been enacted throughout the world with the aim and effect of subjecting the Internet to “real” regulation. But if we consider the global character of the Internet, International Law should be a suitable tool to regulate it. Therefore, this paper considers the current and future role of International Law in regulating the Internet.
In the first part of the paper, we examine the current role of International Law in regulating the Internet. That exercise will allow us to identify different national approaches to the regulation of the Internet, as well as the existing International Law instruments stemming from those approaches. There is an array of questions relating to this new technology that States have addressed in various ways. I will focus on certain substantive issues, such as free speech and the fight against harmful content; intellectual property and the promotion of public domain information; and privacy and the protection of personal data vis a vis the commercial use of collected data. Although there are other questions to be addressed (digital divide; education; cyber security; taxation, electronic commerce and contracts, etc.), the issues I examine will give a measure of the differences between national laws, and the present role of International Law in relation to the Internet.
In the second part of the paper, we consider some traditional International Law questions and issues that, in relation to the Internet, have not to date attracted enough attention. First, it seems clear that the integrity of essential computer networks is a matter of national security for every country. So it is necessary to determine whether a cyber-attack, in the form of a virus or otherwise, may be considered an armed attack, and therefore legitimately trigger a state’s self-defense, or even the collective security action of the United Nations (UN). Second, since the Internet is not only important for each country in the world, but is also crucial for the well-being of people in developed and developing countries alike, it seems fair to ask about the future governance of the Internet. In this regard, International Law may contribute the very interesting concept of the “common heritage of mankind” to the discussion. This concept may be useful in answering questions such as who rules the Internet, or who is entitled to appropriate the Internet, and how the Internet should be governed. Third, we may consider whether access to the Internet can be regarded as a human right. It is clear that freedom of expression is a human right, and access to the Internet means much more in that respect that, say, access to telephone lines and sets. In this regard, some steps have been taken to outline what has been described as a right to “universal access”, which may include a right to Internet access.
Throughout the analysis, the World Summit on the Information Society held in Geneva in 2003 sponsored by the UN and the International Telecommunications Union (ITU) will be taken into account as the most recent international effort to bring together all issues relating to the Internet, and to establish the principles on which democracy can be introduced in this area.
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