Internet and Jurisdiction process: “Non-binding does not have to equal non-accountability"

By Anriette Esterhuysen
Publisher: APCNews     Ottawa, 01 March 2018

The Internet and Jurisdiction Policy Network addresses the tension between the cross-border nature of the internet and national jurisdictions. Its Paris-based Secretariat facilitates a global multistakeholder process to enable transnational cooperation. During the latest Internet and Jurisdiction (I and J) Conference, on 26 February 2018, Anriette Esterhuysen, director of Global Advocacy and Strategy for the Association for Progressive Communications, made the following remarks:

Others have already emphasised why this process is important. I will focus my remarks on the way forward. As the wise and wonderful Bertrand de la Chappelle, whose persistence we have to thank for being here, always says, “There are three points.”

Thus, as this impressive process continues I  believe there are three points we should consider:

Firstly, solutions need to be “end-to-end”

Reading the preparatory papers for this conference, I think that is already the approach, but I want to emphasise how important this is.

We already have some excellent sets of principles to draw on, with civil society deserving recognition for being proactive in developing some of them. For example, the Manila Principles on Internet Intermediary Liability and the International Principles on the Application of Human Rights to Communications Surveillance (also known as the “Necessary and Proportionate Principles” or “13 Principles”). 

There is also the NETmundial principles – a powerful and pragmatic statement of principles, developed and agreed on in a multistakeholder process, with emphasis on human rights, development and inclusive policy making. And we will hear later today about the norm on the “protection of the public core of the internet“ developed by the Global Commission on the Stability of Cyberspace. 

The difficulty is that principles are not enough.

The I and J process needs to propose solutions that identify principles, as well as the means for their application, for checking if they are being applied, and for accountability or remedy when they are not applied. 

Non-binding does not have to equal non-accountability.  Voluntary agreements should not come at the expense of due process. In fact, they should be a mechanism for ultimately, over time, feeding into strengthening due process. 

It is also important for solutions to be adapted, changed, based on learning from practice and sharing of experience of all the different stakeholders involved. This is what I mean by an "end-to-end" approach.

Secondly, avoid the trap of settling for the lowest common denominators, or “minimum standards”

There is a common assumption that this only happens in intergovernmental processes where states notoriously often fail to agree on anything but the most mundane. A classic example is negotiations at the United Nations Commission on Science and Technology for Development (CSTD) for the annual World Summit on the Information Society (WSIS) follow-up and implementation resolution – with reference to the Internet Governance Forum (IGF). Some states will propose text to the effect that the IGF was successful and made a meaningful contribution to building understanding and cooperation among all stakeholders around complex internet governance issues. Other states will only agree to any mention of the IGF at all, never mind praise, if there is equal mention of events convened by the International Telecommunication Union (ITU). Hours of negotiation will result in text, and I am quoting: Notes the holding of the tenth meeting of the Internet Governance Forum, hosted by the Government of Brazil in João Pessoa from 10 to 13 November 2015, under the theme 'Evolution of Internet governance: empowering sustainable development'.”

Consensus-oriented multistakeholder processes are also at risk. Pragmatism is great, but not when it comes at the expense of, for example, people’s human rights.  

Inclusiveness of the process should also meet high standards. The I and J process should continue to aim to be as inclusive as possible, not just of different stakeholder groups, but also in terms of gender, race, geographic location, and different world views and experience.

Thirdly, chickens and eggs

It has already been pointed out that often, proposed responses to, for example, harmful content, create new problems. The design of the I and J process, the work that people will do, together, between now and the Berlin conference in 2019, is intended to avoid this pitfall.

The strength of this process is its evidence-based, operational solution-oriented approach. For the  broader internet governance community the challenge goes beyond that, but meeting that broader challenge effectively can be assisted by the I and J Policy Network and its outcomes. Broadly, we also need to consider the underlying causes of the problems being addressed here. What came first? The egg or the chicken? What are the basic trends, or business models, that created the need for the Internet and Jurisdiction project in the first place? Are responses to these challenges creating new problems, or just feeding into existing ones? When do we need solutions that are operational, and when do we need interventions that are more fundamental, and possibly disruptive, such as for example, the GDPR [General Data Protection Regulation]?

The I and J process ultimately can also help us answer such questions. It can contribute to a common understanding among different stakeholders of when and where such disruptive interventions are needed in order to ensure that the internet – at the risk of sounding trite – can be an effective platform for social and economic development, for learning, and cooperation, and for enabling individual human rights.

Image: Stakeholder Plenary session of the Global Internet and Jurisdiction Conference. Source: IJurisdiction on Twitter  

Read more about the Internet and Jurisdiction Policy Network here.

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