“While it could be argued that a range of new threats to online freedom have arisen in recent years, there is one issue in particular I would like to highlight in this written contribution: the ready acceptance by many actors in business and civil society of States’ insistence on their sovereign right to control the Internet, even if it is often patently clear that existing laws – and increasingly also new ones – are inadequate to deal with the new context and challenges that the Internet brings.
While the democratising potential of the Internet may very much continue to be a reality, even democratic elected governments all over the world seem to be hard at work to thwart that potential. Yet our willingness to accept sovereignty as a justification for these efforts seems considerable. When the US resorts to the unacceptable practice of seizing domain names all over the world, even when these facilitate activity perfectly legal in the country in which they operate, we resort, among other things, to the argument of sovereignty to denounce the practice. When Twitter announces a policy of national censorship, we hail it for the levels of transparency it stands for and the new insights in national censorship regimes it will likely provide.
But what else does wielding the argument of sovereignty do? It is my contention that the increasingly tenuous relationship between the purported global nature of the Internet and our ready support for the sovereign exercise of power by States over this resource is one of the greatest threats to online freedom that has emerged in recent times in democratic and authoritarian countries alike. And it is high time that we start thinking through this tension and its consequences. If not, the consequences for the empowering potential of the Internet may soon prove to be devastating.
The tension between the increasingly mythical global nature of the Internet and national initiatives to regulate it can be observed all over the world: from the UK to Malaysia, from Russia to Australia. But as this is the context that I am most familiar with, let me illustrate my point with an example from India. For much of the past year, Internet activists in India have been working hard to get a set of overly-broad rules regarding intermediary liability, first issued in April 2011, repealed. The rules make it obligatory for intermediaries to notify users that it is illegal to upload content which is, among other things “disparaging”, “grossly harmful” or “ethnically objectionable”. When the intermediaries receive a complaint about any content, they are required to take action within 36 hours. The poster of the content need not be notified. Somewhat surprisingly, when in late December 2011, both a civil and a criminal case were filed in the Indian courts against Google, Facebook, Microsoft, Yahoo! and a slew of much smaller content intermediaries, these rules and other Internet-related legislation really played only a minor role, however. The larger question that dominates the trials is that of how to enforce Indian legislation and related practises that predate the Internet era in this new age.
A step back into history can help clarify what this entails. Since its founding, the independent Indian nation-state has wielded censorship as a tool to both contain the conflicts that emanate from India’s tremendous diversity and to ensure its homogeneous social, moral and political development. If the list of reasonable restrictions in the Constitution is fairly long, this is because the country’s lawmakers were clear at the time of Independence that freedom of expression would need to be subordinated to the social reforms necessary to put the country on Nehru’s path to development. India’s far-reaching anti-hate speech laws, too, derive from the desire to combat ill will and disharmony.
But if the advent of satellite television already revealed the vulnerabilities of this strategy, the Internet has of course made clear that in the long term, it is simply untenable. It is not just that the authors of a speech act may not be residents of India; it is that everybody can now become an author, infinitely multiplying the number of expressions that are produced each year and that thus could come within the Law’s ambit. If the old censorship régime is to nevertheless be maintained in this new context, it will therefore increasingly require the active chilling of freedom of expression on the part of the state. The rules regarding intermediary liability can in many ways be seen as an indication of the willingness to try and do just that. So, although filed by private parties, can the court cases against the intermediaries.
What does the application of national law then do in this and many other cases? For one thing, of course, as their right to freedom of expression in effect will be severely restricted by the time they will finally get online, the empowering potential of the Internet for India’s marginalised citizens – who in any case so far have had no role to play in the shaping of the future information society – will be far more restricted than what we might believe it to be today. India’s use of censorship as a way to ensure national harmony has of course to some extent always had to elide, and silence, the enormous diversity within Indian society itself; censorship always benefits the status quo, and the Indian case has been no different. But in the earlier context, where the political economy of communication and media in any case made it difficult for more marginalised groups to make their voices heard, the disjunction was perhaps never experienced as acutely. In contrast, today, there is actually a real opportunity to make sure that the voices from a much wider range of people can make themselves heard. Imposing existing censorship regimes, no matter how much social acceptance they may have, will obliterate this.
But there is more. Increasingly, it starts to look like the consequences of some national initiatives will end up affecting the nature of the Internet at a more fundamental level as well. If governments worldwide will insist on retaining pre-Internet levels of control over content production and consumption, it is likely that the criminalisation of technologies to evade such control in a growing number of countries will only be a matter of time, in effect meaning, as Chinese netactivist Michael Anti has pointed out, that we will be requiring a visa to travel to the “global” Internet. Moreover, in India there have also been reports of government proposals that require intermediaries to place servers in the country so as to enable law enforcement agencies easy access to encrypted data. While protecting its citizens is a legitimate goal, and even obligation, of any State, this particular measure would effectively break up the Internet. In the light of the above, it is clear that it would have potentially far-reaching consequences for freedom of expression as well.
It deserves to be pointed out that situations such as the one described above are not necessarily the result of ill-will. Evolutions on the Internet happen at lightening speed, and States are at times forced to respond at short notice. Moreover, as the Indian case illustrates so well, in contexts where the Internet severely shakes up the existing way of doing things, there might at times be considerable support for States’ chosen strategy, no matter how restrictive it may be. The existing culture regarding freedom of expression in a country matters. In addition, the challenges that diversity brings in India and elsewhere are real, and States has an obligation to navigate the contradictions and disagreements that at times arise from it carefully.
I am therefore not trying to argue here that we should simply stop respecting States’ sovereignty. But if we are to save the free, open and global Internet that we all hold dear, I do think that we need to urgently recognise that our strategies might have to change. More specifically, we need to think through much more carefully what exactly a free, open and global Internet entails, and measure States’ policy initiatives against these standards. We also need to start thinking more creatively about alternative ways in which States could deal with some of the challenges they are confronted with, and push such alternatives, at times in parallel with legal solutions, more vigorously.
In the light of the above, finally, it is perhaps also high time that the proposals for greater international cooperation regarding Internet governance with multi-stakeholder participation, made over the past few years by several developing countries, including India, Brazil and South Africa, are re-evaluated. So far, many Western governments in particular have been staunch opponents of such proposals. But as we are reaching the unfortunate situation where the future of the Internet will be a topic of debate in the International Telecommunication Union, a notoriously unwelcoming space for civil society actors, the costs of not engaging with these is slowly becoming clear. It could well be argued that in the light of my remarks above, the much more open and inclusive proposals of the IBSA players urgently deserve reconsideration and greater engagement on the part of the Western world. It is by forming broader fronts across stakeholders and regions on these issues that the free, open and global Internet that we hold dear can be salvaged.
I look forward to further engaging on this and other issues, and on ways forward, with all of you during the Forum”.