Criminal law and the free and open Internet: Issues and ways forward

by Anja Kovacs

On 8 November 2012, the Internet Democracy Project organised a workshop at the Internet Governance Forum (IGF) on Criminal law and the free and open Internet: Tensions and ways forward in democratic societies. What were the most important issues raised in the workshop? A report.

In recent years, Internet governance has come to face a paradox that some argue threatens the free, open and global nature of the Internet: this paradox lies in the tension between States’ sovereign right to legislate the Internet on the one hand and the existence in many countries of criminal law that, when applied strictly, may run counter to freedom and openness on the other.

While the presence of this tension in authoritarian countries has been acknowledged for long, it is increasingly clear that such situations are prevalent in democratic societies across the world as well. Yet despite its growing spread and importance, so far the latter phenomenon has not received much systematic attention.

This workshop, therefore, aimed to shed greater light on this paradox and the challenges it brings for a free, open and global Internet specifically in the democratic world. Four outstanding panellists joined us for the event:

  • Moez Chakchouk from the Tunisian Internet Agency;

  • Iarla Flynn from Google Australia;

  • Carlos Cortés from the Center for Studies on Freedom of Expression and Access to Information, at the University of Palermo in Argentina;

  • Paul Fehlinger, Program Manager of the Internet and Jurisdiction Project at the International Diplomatic Academy in Paris, France.

Babu Ram Aryal from ISOC Nepal was the remote moderator for the event.

The workshop proceeded in three steps. In the first part, the workshop tried to set the broader context and to show that even in democratic societies, which the workshop focused on, there is great variety in our understanding of what the appropriate ways to, for example, protect freedom of expression, are. The debate started with a discussion of the Innocence of Muslims video, with Iarla Flynn from Google explaining how Google handled the controversy surrounding the video in different countries.

Interestingly, and somewhat unexpectedly, participants soon found themselves in a situation where, on the one hand, a staunch pro-free speech activist from Pakistan asked Mr. Flynn why Google didn’t take down the video in her country, where several people died in related protests, while on the other hand, Moez Chakchouk from the Tunesian government’s Internet Agency argued that Google should not take down such content even where it has received a court order. The setting of the scene thus brought out very clearly how complex the issues involved are, so much so that different actors at times are lead to take positions contrary to those that one might perhaps have expected from them.

In the second part, the workshop went into the challenges that exist due to the tension between the application of criminal law online and the free and open Internet. Carlos Cortes noted that increasingly, the desire on the part of governments to implement criminal law online as well is leading to the emergence of architectures of control in which criminal law becomes embedded in the internet at various layers, including the content layer.

Further, businesses play into this desire to regulate users more and more according to criminal law at least in part by creating terms of service that, as Paul Fehlinger noted, have increasingly come to resemble accidental constitutions’, in that they have become a new level of regulation that more and more of us have to abide by if we want to be able to express ourselves.

These two elements together – the way criminal law is implemented in the architecture of the internet and in the terms of services of businesses – lead to new behaviours online, a forced acceptance of new kinds of behaviours. How we have to give up our privacy on certain platforms is one prominent example.

The workshop also spoke of the co-operation of businesses with law enforcement leading to the privatisation of law enforcement, a system under which citizens often find it considerably more challenging to get recourse. It was pointed out that it sometimes is difficult to understand what the principles are that intermediaries in particular apply in cases of controversial content, and sometimes, one participant in the workshop remarked, it seems they are pragmatic in their decisions rather than principled, making it particularly challenging for users to understand what exactly is going on.

Where challenges from the point of view of States are concerned, the issue of cross boundary harm was discussed at considerable length. There have been instances, for example, in which the government of State X has seized a domain in State Y, even though the activities of that domain were legal in State Y. What such instances make clear is that a State asserting its sovereignty online in the same way as it would off line can harm the rights of users in another State. As Mr. Fehlinger pointed out: in the online sphere, sovereignty kills sovereignty’.

A final set of challenges that received attention in the workshop was that of how the patchwork of laws has lead to an increased risk of forum shopping. In Latin America, Mr. Cortes pointed out, defamation is treated very differently in different countries: while some countries have it on their books as a civil offence, in other countries it is criminalised. There is a risk that journalists who publish online will now be persecuted according to where punishments for defamation are likely to include jail terms.

The third part of the workshop, finally, looked at ways in which the tension between the application of criminal law and the free and open Internet can possible be eased, even if perhaps not entirely resolved. A first set of arguments related to the point that both users and governments need to attain a much better understanding both of how the Internet works and what the issues in the debate surrounding the application of criminal law online are exactly.

Secondly, it was argued that both governments and businesses also need to be far more transparent and adopt better and stronger processes. Where governments are concerned, the point was further made that there is a need to be more clear about the different steps involved in making good policy, and the need not to skip any of these steps. At the moment, there was a sense, a lot of action taken with regard to the online sphere seems to be about doing politics” rather than about making policy”.

Mr. Chakchouk gave the example of his own country’s current policy as a third way to ease the tension. In Tunisia, the development of the Internet and control over the Internet are two aspects of power that are kept separate. Moreover, the Tunisian Internet Agency is a staunch advocate against any kind of Internet censorship. However, Mr. Chakchouk argued, governments should have the opportunity and ability to go after those who commit crimes online. In this scenario, in other words, surveillance thus becomes an antidote against censorship.

Finally, there was discussion around the value of instruments such as the Inter American human rights system and the need to identify shared norms and standards that can be applied as a way to move forward collectively.

The above is only a brief overview of the most important issues raised in the workshop, which was marked by extremely rich discussions, with a wealth of ideas to make progress in what is emerging as one of the most challenging areas in Internet governance. As host of the workshop, the Internet Democracy Project is very grateful to the speakers and audience for their engaged and very valuable participation.