13 Jun 2014
Designing a coherent framework for the regulation of Internet content
An invited expert paper prepared for the Global Governance Reform Initiative of the Hague Institute for Global Justice, presented in the Hague, 13-15 May 2014; under review in Global Governance.
The paper seeks to address the question of the appropriate forms of regulating Internet content. While the digital technologies underlying the development of the Internet as an economic, social and cultural phenomenon may have lowered the thresholds for individual and group expression, participation and engagement, and triggered proliferation of content, online content is by no means free or easily accessible. In fact and increasingly so, there are a number of limitations to the free flow of content – some of as an intended result from design of technologies, policies and practices, others as an unintended consequences of policy choices made in other areas. The paper first seeks to raise the awareness of these limitations by mapping existing and potential barriers to access to and distribution of content on the Internet. While the paper focuses on content, it would be indispensable to expose the interplay between content with the regulation of infrastructure and code, as it is often here that the hindrances to access to content may be placed. As the paper will be particularly interested in governance mechanisms, it will also map the institutional framework that underpins these issues, in particular at the global level. The paper will try to offer a structured analysis of the fairly complex governance landscape in this regard, where many regulatory areas intersect and are regulated by institutions with different history, legitimacy and decision-making processes. Particular attention will be paid to less visible rule-making fora, such as preferential trade agreements. This analysis will later on contribute to assessing the viability and sustainability of different policy designs for the regulation of content, as well as ask the important question of overall governance coherence. As a response to this messy and complex governance landscape, it is not the paper’s aim to put forward ‘simple’ legal or institutional solutions. It will rather approach the question of appropriate design using the methodology of multi-layered governance, as developed in legal and political science theory, which basically says that there is no 'one size-fits-all' regulatory model and for different issues solutions at different layers of governance (national, regional and international) may work best. The multi-layered governance models needs to be however also enriched with newer approaches, which acknowledge the greater role of non-state actors and networks of actors, and the emergence of hybrid modes of regulation. In addressing the appropriate form of governance for regulating Internet content (e.g. national-level regulation; voluntary, end-user based initiatives; international treaties; transnational private sector-led initiatives, etc.), the paper will pay particular attention to the bounds of the state, as the conventional sovereign and global actor, in regulating content. It will seek to make suggestions, where state powers should be constrained (for instance, by an international agreement) and where the state should still be given some wiggle room to regulate matters that are critical to it and its citizens. The possibilities for installing checks-and-balances, so as to secure free flow of information online will be explored.