IGF 2018 WS #388 Making National Laws Good for Internet Governance

Format: 

Round Table - 90 Min

Subtheme: 

Other: Emerging Legal Trends

Organizer 1: Jessica Dheere, Social Media Exchange
Organizer 2: Agustina Del Campo, CELE (Center for Studies on Freedom of Expression and Access to Information)
Organizer 3: Gayatri Khandhadai, Association for Progressive Communications

Speaker 1: Agustina Del Campo, Civil Society, Latin American and Caribbean Group (GRULAC)
Speaker 2: Lisa Vermeer, Government, Western European and Others Group (WEOG)
Speaker 3: Gayatri Khandhadai, Civil Society, Asia-Pacific Group
Speaker 4: 'Gbenga Sesan, Civil Society, African Group

Relevance: 

Policy question: How is the proliferation of national laws governing the internet affecting the evolution of Internet governance and the protection of the core values of the internet nationally, regionally, and globally?

Background: While the discussion doesn’t build directly on previous conversations, it is related to recent legal research (included in the background documents and at http://adrd.uwazi.io) conducted by SMEX and APC on legislation affecting human rights online in the 22 countries of the Arab League and Cambodia, India, Malaysia, Myanmar, Pakistan, and Thailand. This research will continue in the coming years and expand to other regions, including Latin America, sub-Saharan Africa, and Eurasia.

Session Content: 

After more than two decades of relatively little direct legislation of the Internet, in developed and developing countries alike, national laws meant to govern the internet are rapidly proliferating, in response to data privacy and protections concerns (like the GDPR) and also as a means of managing age-old, pre-digital challenges like organized crime, hate speech, propaganda, gender violence, and violent extremism as they migrate online and take advantage of the particular affordances of digital technologies and networks. As a result, these laws are becoming a key factor in the evolution of Internet governance globally.

Yet in many cases, these laws are drafted and passed without a full understanding of the technologies and processes they regulate or their implications on the preservation of the core values of the internet—interoperability, universality, and free expression and the free flow of information. At the same time, jurisprudence citing such laws is only beginning to emerge and, where it does exist, can be difficult to locate in many contexts, not only expanding the gap in understanding among people trying to interpret the law, including members of parliament, judges and lawyers, corporations, and ordinary citizens but also threatening to transform digital networks into minefields of regulations that compromise the potential for innovation, expression, and economic development.

In this roundtable, a multistakeholder group of experts in internet law and jurisprudence, and particularly the development of new legislation, will discuss their experiences observing the development of these new internet-targeted legal interventions and their expected and unexpected impacts and help distill lessons learned for internet law and policy makers. Participants will also consider the relevance and utility of establishing a best practice forum or dynamic coalition on the rule of law in the digital sphere.

The roundtable will begin with a 20-minute overview of some of the recent laws passed to govern the internet in national contexts with brief analysis of their ripple effects both internally and beyond borders. Noting similarities and differences in the approaches of developing internet legislation in a variety of contexts around the world (specifically Nigeria, Argentina, South Asia and Southeast Asia, and elsewhere) and citing specific law and caselaw, the roundtable will then turn its focus to how internet governance is increasingly being regulated at the country level through national legislation and jurisprudence and consider during the next 60 minutes several of the following questions:

+ What are the implications of this increase in national legislation, and its related jurisprudence, for a global, interoperable internet?How difficult is it becoming to navigate? What are the potential effects on established global human and civil rights norms? For example, what has the impact been, both nationally, regionally, and even internationally? What do we want to see more of, what do we want to see less of?
+ How are national lawmakers approaching the development, drafting, and passage of legislation? Is it usually in response to potential threats or a pro-active affirmation of rights, as is the case of the new Nigerian Digital Rights and Freedom bill? Who is being involved by lawmakers in the legislation drafting process? Users, technical experts, etc.?
+ What have been the implications for the private sector, multinationals and national level companies, as well as for entrepreneurs?
+ Have these laws made the internet more predictable, safer for women and marginalized groups? If so, how? If not, why not?
+ Do we risk creating parallel legal environments?
+ What can we learn from the range of experiences? Recognizing that national governments will continue to regulate the internet, are there best practices to developing and disseminating such laws that we can derive from the experiences we’ve discussed?
+ How can the internet governance ecosystem play a more integrated role in the development of legislation that maintains norms? Is there value to continuing this conversation, possibly as a best practice forum or a dynamic coalition, perhaps on the rule of law in the digital sphere?

Walk-in participants will be encouraged to share their experiences and lessons learned during the discussion. The final 10 minutes will be devoted to summarizing the discussion and proposing next steps. All interventions and proposed next steps will be summarized in an outcome document by the rapporteur by the end of the session and circulated to roundtable participants.

Interventions: 

Lisa Vermeer, government, Ministry of Foreign Affairs, the Netherlands, will discuss the need for monitoring of new bills and legislation and observations of MFA diplomats in the formulation of new internet-related bills and legislation as well as discuss how national laws are influencing global internet norms

Agustina del Campo, academic/lawyer, director of Center for Studies on Freedom of Expression and Access to Information (CELE) at the University of Palermo in Argentina. She will discuss her experience with the systemization of free expression legislation, including identifying legal trends, in Latin American and how what she's learned can be applied to new Internet related laws.

Gayatri Khandhadai, civil society, Association for Progressive Communications, will discuss analysis of legislation in South and Southeast Asian countries and lessons learned from research done in six countries on the criminalisation of online expression in both new and old legislation.

Lisl Brunner (private sector) director of global public policy at AT&T; will discuss the importance of understanding country legal frameworks related to the internet for effective private sector operation, entrepreneurial innovation, etc., as well as work telecom companies have done to try to make those frameworks more transparent through the COuntry Legal Frameworks hosted at the Global Network Initiative, and the benefits of that transparency.

Gbenga Sesan or the Nigerian sponsor of the new Digital Rights & Freedom bill will discuss the importance of passing a rights-affirming law as a strong foundation for legal frameworks related to digital spaces as well as the process of getting the bill through parliament.

If possible, we will also ask a youth representative from Brazil to talk about the Marco Civil 4 years later and the more than 300 internet-related bills now in the legislative process in Brazil.

Diversity: 

The roundtable experts represent 4 women and 1 man. The following regions are represented: Europe (the Netherlands), Africa (Nigeria), Asia (India, Lebanon), Latin America (Argentina), and North America (USA). The following stakeholder groups are represented: Government (Dutch MFA), civil society (APC, Paradigm Initiative Nigeria), Academia (CELE, Argentina), and private sector (USA, AT&T, if available). Jessica Dheere, the proposer/organizer is a first-time organizer from Lebanon. We will aim to invite a youth representative from Brazil to discuss Marco Civil and Radar Legislativo and others as either experts or walk-in participants, if the session is accepted.

Online Participation: 

SMEX will host a screening of the session at its space Beirut and will publicize the session and solicit input on its Digital Rights Law mailing list and other networks. We will encourage remote participation through social media but will will also solicit questions ahead of time from those who cannot attend in person. Throughout the session #IGF2018 will be used and so will #ictlaws and a dedicated communications person will be available to facilitate online participation and to increase the visibility of the session and IGF among the networks of the co-organisers.

Discussion Facilitation: 

As outlined in the content section, the first 15-20 minutes will frame the discussion citing the several new laws that have emerged in the last year or so and their effects so far. We will also ask walk-in participants to make us aware of other laws not mentioned. Then, the moderator will facilitate a 60-minute discussion, allowing each expert to address a specific aspect of the questions outlined above. During the 60 minutes, the moderator will punctuate the speaker interventions by picking up a thread from the most recent speaker and asking for brief reflections, responses, or contributions from the walk-in participants. In the final 10 minutes, the group will consolidate the conversation into a set of desired practices and next steps for continuing the discussion. The moderator is a skilled interviewer and moderator and will make sure to keep the conversation lively and short-winded. In addition, it's likely that insights will be recorded on a flipchart or other visual aid as the conversation progresses.

Onsite Moderator: 

Jessica Dheere

Online Moderator: 

Azza el Masri, SMEX

Rapporteur: 

Grant Baker, SMEX

Report: 

IGF 2018 Pre-Session Synthesis & Short Report Template

Pre-Session Synthesis Due: 2 November 2018 

Short Report Due: Within 12 hours of when session is held

 

Session Type (Workshop, Open Forum, etc.): Roundtable

Title: #388 Making National Laws Good for Internet Governance

Date & Time: Tuesday, November 13, 2018; 11:50 a.m. -1:20 p.m.

Organizer(s): 

Chair/Moderator: 

  • Jessica Dheere, Social Media Exchange

Rapporteur/Notetaker: 

  • Grant Baker, Social Media Exchange

List of speakers and their institutional affiliations (Indicate male/female/ transgender male/ transgender female/gender variant/prefer not to answer):

  • Speaker 1: Agustina Del Campo, Civil Society, Latin American and Caribbean Group (GRULAC), female
  • Speaker 2: Lisa Vermeer, Government, Western European and Others Group (WEOG), female
  • Speaker 3: Gayatri Khandhadai, Civil Society, Asia-Pacific Group, female
  • Speaker 4: 'Gbenga Sesan, Civil Society, African Group, male

Theme (as listed here): 

  • Evolution of Internet Governance

Subtheme (as listed here):

  • Emerging Legal Trends

Please state no more than three (3) key messages of the discussion. [150 words or less]

  1. National-level legislation to govern the internet is proliferating and often compromising multistakeholder approaches to internet governance as well as human rights online.
  2. The reasons for this are many, including in how legislation is drafted, how it travels from jurisdiction to jurisdiction, the imposition of extraterritoriality of jurisdiction, etc.
  3. States must work together with other stakeholders to avoid disrupting the multistakeholder foundations of internet governance by anticipating the effects of such legislation and jurisprudence and analyzing the overall legal framework within which new laws will apply, paying particular attention to conflicts of law, in particular between national legislation and international human rights law and norms.

Salient points, conclusions, learnings and challenges

In relation to group of questions 1:

- There is less resistance at the different levels or branches of powers when the process of developing legislation have the support of different stakeholders. The chances for approval and enactment of the laws increase.

- Civil society have to literally allow someone else take credit for the work. Step back and provide the support to other stakeholders for the sake of the multistakeholder character of the processes is something that should be considered as part of the strategy.
- To be able to influence legislative processes, it is necessary to to get familiar with the legal language. It is also necessary to identify the political tensions that might exist between the different powers or different branches of government and how it impacts the legislative process.
- The work does not end with the law. The work begins when there is a law and it is necessary to create conditions for its implementation. Look at mechanisms for legal redress, for instance.
- Consultative process and collaborative lawmaking inspire and are taken as a reference for processes in other countries.
- Legislative processes are not harmonic and do not happen in an organised way. It is necessary to understand the logic and the power dynamics to be able to engage and influence the processes.

In relation to group of questions 2:

- It is necessary to move the discussion from the digital rights realm to the broader human rights. 
- Links between national and international or multilateral processes should be built.

- The online space is treated different than the offline space. The online space is being more restricted than the offline one. There is a failure of civil society to being able to make the advocacy around internet related matters relatable. How to make advocacy relatable is a key issue.
- It is important to understand the way in which offline laws are used along with ICT laws.
- A caution: while at the international level it is repeatedly affirmed that rights offline apply online, it is important to realise that is not necessary the norm that applies nationally where in some cases even constitutional guarantees are not being applied and respected.

In relation to group of questions 3:

- It is crucial to understand the intersections and dialogue between court decisions, jurisprudence and legislation. Court decisions can spark legislation or kill them.

- That dialogue between courts and legislative powers depends on the country. The legislative activity is more intense in some countries than in others.
- Specific cases have great impact in the way in which internet issues are legislated, using in some cases paradigmatic cases that set jurisprudence.
- Courts have a key role in standard setting 
- A lot of regulation is good and necessary and some of it can be harmful. Are we clear on the type and scope of regulation we want to see being developed and applied?
- Be careful to apply geographically based regulation to a medium that needs the interconnection between networks.
- Technology and technologically scenery changes a lot faster than legislative processes move along. How to ensure that legislation on specific issues do not lose relevance over time? How do we respond to the regulatory race. How we can do legislation that addresses the issue that is relevant for us but at the same time protects the infrastructure of the internet?
- Decisions are traveling across borders and there is an issue in translating circumstances, context and regulatory frameworks. Congress are having hard time doing that translation.

Some recommendations:

- Developing what we mean by a rights based approach to ICT policies - we could try to first articulate how this applies and how the RBA is to be applied to the development and assessment of policies.
- Come up with ways in which we can assess whether national laws meet their national and international guarantees. If this can be done in a cross jurisdictional manner it will facilitate analysis and advocacy. 
- Making available positive jurisprudence that is developing in different regions - especially from the global south will be good for assisting legal action in different countries, especially when there is a tradition of referring to foreign pronouncements. 
- Develop campaigns and conversations that can explain the consequence of bad laws and provisions. By doing this we might end up gaining a fresh perspective based on interaction with users, beyond experts.

Conclusions:

- Regulation is about creating standards. Governments are thinking regulation in terms of control and people will react. We need to move to talk about standards. 
- Participation is very important in whatever form it takes. 
- Instead of being reactive, be proactive 
- Explain what a human based approach to ICT policies. Pronounce the rights that the regulation will impact and how they will be impacted.
- A fundamental shift needed is recognising users as rights holders rather than subjects to control.
- Recognition of the social exclusion in terms of digital exclusion. 
- There is the need to look at the relationship between companies and governments and how that is influencing the way laws are being made.
- Legislative processes take time. Processes matters.
- Analyse speed vs quality in legislation affecting ICTs so we can use that evidence to improve legislative development in the future.

 

Session Time: 
Tuesday, 13 November, 2018 - 11:50 to 13:20
Room: 
Salle X

Contact Information

United Nations
Secretariat of the Internet Governance Forum (IGF)

Villa Le Bocage
Palais des Nations,
CH-1211 Geneva 10
Switzerland

igf [at] un [dot] org
+41 (0) 229 173 678