By Anja Mihr
With the advent of new technologies, the internet offers an environment where participants have the ability to affect and influence each other. This space is transparent and neutral in nature but is often corrupted, broadened, limited, or censored by the same people or governments who use it.
Public policy for cyberspace has been suggested to govern, regulate and organise the endless, and mostly anonymous, cyberspace. But how does one govern a space with half the world’s population? Human rights have been well defined by governments and stakeholders internationally. Whether these standards and mechanisms apply online or not is an entirely different debate.
Cyber Equality – Wishful Thinking?
Cyber public policy is based on a process that involves private, state and non-state actors, irrespective of their citizenship or location. Migrants, refugees, citizens, companies and governments have equal access to the Internet and share the same responsibilities. Thus, they can be held accountable, regardless of their status. Although this seems idealistic, it is not impossible.
The legal and political framework of cyber-public policy is based on the international human rights law. This legal framework does not depend on a geography or economy to hold good.
The UN human rights framework, regional treaties such as the European Convention on Cyber Crimes or the UN Guiding Principles on Business and Human Rights – all of these could be applied anywhere in the world in the light of protecting human rights.
Today’s cyberspace has seamlessly integrated with our ‘offline’ lives. Therefore ideally, we should not need a new set of human rights standards specifically for the internet. The ones in place should, and can, be implemented. However, the key differentiator between the offline and online space is that the online space eliminates accountability. It lacks justiciability and liability of actors and institutions that provide online services to users. A global agreement on the procedures of cyber public policy is yet to come about. Nevertheless, it can still be informally agreed upon by state and non-state actors, agencies, users and companies alike, and put into practice.
A Possible Way Forward
There is little to no dispute about the fact that national governments or international organisations cannot solely safeguard these rights, let alone enforce or protect them. The solution must be global. A transnational governance regime, based on human rights norms, good governance and multi-stakeholder principles needs to be put in place. In addition, the system aims to involve local or ‘server-located’, entities to enforce and protect users’ human rights could be created.
Over the last couple of years, cyber citizens have become more conscious of their social activity. With cases seen in recent court decisions, users have become wary of posting information and data that might potentially be used against them in international or national lawsuits. However, it is possible to manage the behaviour and to establish a rule of law for the cyberspace.
I see two main avenues to pursue this initiative. One, to establish a societal and legally binding ‘cyber constitution’ in the context of a new ‘cyber social contract’, and two, to establish global enforcement and monitoring bodies. The latter could include bodies such as a global Cyber-Court, multi-stakeholder committees or otherwise rotating, participatory and transparent governance regimes. Such a system would allow local institutions to collaborate with administrative or constitutional courts to implement and enforce the rights and duties of cyber citizens.
A Lawless Regime
The 4 billion ‘Internet citizenship’ has the highest ‘birth-rate’ per annum, well over 30%. If the cyberspace was a country, it would be the largest, most populated one in the world. Not only is it one without any constitution or government, it also has no legislation or decision-making body. There is no police or law enforcement mechanism to safeguard human rights. Yet, it already has international human rights standards as binding principles and norms showing how to behave in and regulate the cyberspace. Thus, it is safe to say that the current internet regime is far beyond a lawless situation.
As users, we ought to push for common rules, regulations and laws for interaction on the internet. The UN Internet Governance Forum (IGF) claims to find global solutions in tandem with governments, CSOs, businesses and service providers. Although this forum is still largely focused on security threats, it recently broadened its focus to upholding human rights online.
Given that the human rights-based approach faces major challenges and obstacles in the offline world, it is obvious that the online approach will face roadblocks too. The online world only mirrors our successes or failures to implement human rights in the offline world.
Anja Mihr currently holds the Franz Haniel Chair of Public Policy at the Willy Brandt School of Public Policy at Erfurt University in Germany. She has been Head of the Rule of Law Department at The Hague Institute for Global Justice and carried out a number of Visiting Professorships for Human Rights. She received her PhD. in Political Science from the Free University in Berlin, Germany, in 2001.