On 12 February 2014, the European Commission (“Commission”) submitted to the European Parliament a report entitled “Internet Policy and Governance: Europe’s role in shaping the future of Internet Governance” (“Report”).
The Report proposes a common vision on the development of Internet governance, which the Commission believes is essential to preserve the benefits of a single, open, free and unfragmented Internet, underpinned by the multistakeholder model of governance. As well as emphasising the need for careful yet robust stewardship of the Internet, the Commission also acknowledges that further work is required to address the legal issues that arise from the cross-border provision of Internet-based services, such as cloud computing, particularly in relation to conflicts of jurisdictions and laws. In 2015, the Commission plans to publish a progress communication on the key recommendations outlined in the Report.
The Report outlines what it deems to be the fundamental pillars of the Internet, and proceeds to make a number of proposals to strengthen the current framework:
- A principles based approach: an open, unfragmented system with a low entry threshold is seen as the ideal foundation for the Internet. Attempts made in some Member States to filter Internet traffic or block connectivity on the basis of security concerns are condemned, as the Commission seeks to promote the diversification of the infrastructure underpinning the current Internet forum to strengthen the resilience of the Internet and promote fundamental rights.
The Report advocates the COMPACT approach, which envisages the “Internet as a space of Civic responsibilities, One unfragmented resource governed via a Multistakeholder approach to Promote democracy and human rights, based on a sound technological Architecture that engenders Confidence and facilitates a Transparent governance both of the underlying Internet infrastructure and of the services which run on top of it”. Since the adoption of the Tunis Agenda in November 2005, which supported multistakeholder governance of the Internet, the Report acknowledges that several attempts to introduce Internet governance principles have been made, but these are mostly limited in the number of stakeholders or geographical area. The Commission therefore advocates the creation of a more coherent set of principles that would be more widely supported by stakeholders.
- A cooperative governance framework: the Commission regards the current position of the Internet Governance Forum (which was established in 2006 as a global multistakeholder forum on public policy issues related to Internet governance) as weak and calls for a more sustainable model to “clearly define the roles of actors in the governance process” and a shared commitment by stakeholders to develop a thorough set of governance rules.
- Globalisation of core Internet decisions: the Report acknowledges that whilst the Internet works well without oversight by international governmental bodies, legitimacy can be increased by achieving a greater international balance within the existing structures. In particular, the Commission objects to the exclusionary contractual relationship between the Internet Corporation for Assigned Names and Numbers (“ICANN”) and California and foresees the Global Multistakeholder Meeting on the Future of Internet Governance in April 2014 as an opportunity to address the globalisation of ICANN.
- Multi-stakeholder process: a genuine multistakeholder mode of Internet governance will enhance the legitimacy of the Internet. The Report outlines the three requirements of transparency, inclusiveness and balance, and accountability as the minimum objectives to be achieved in creating Internet policies based on the multistakeholder model. The Commission acknowledges that the mere fact that something is termed to be “multistakeholder” does not necessarily mean that the decisions are legitimate, and proposes the establishment of the Global Internet Policy Observatory in 2014 to ensure that representativeness is achieved across different stakeholder groups by providing a global monitoring resource for Internet policy-making in order to surpass ‘policy silos’ and contextualise information.
- Technical norms shaping the Internet: the Report acknowledges the public policy implications within the technical details for Internet protocols and praises the efforts made by the technical community in accommodating public policy concerns (e.g. imposing accessibility standards for persons with disabilities). Given that there are still regular instances where technical experts make decisions in the absence of stakeholder representation, however, the Commission advocates the regular review and comment by stakeholders on technical decisions and the creation of open Internet standards.
- Building confidence: the Commission outlines the EU’s strategy for making its online environment the safest in the world. Current efforts such as the EU Cybersecurity Strategy and the overhaul of the current data protection regime demonstrate not only that steps are currently being made to develop the Internet, but also that efforts are being made to curb the increasing number of illegal online activities that infringe fundamental rights. The Report refers to the loss of confidence in the Internet that is attributable to the revelations of mass surveillance activities, stating that strengthening the global governance of the Internet will help to rebuild trust and contribute to a sustainable Internet environment.
- Conflicts of jurisdictions and laws: the Report highlights the legal uncertainty attributable to the extraterritorial application of certain national laws and the insufficient development of the conflict of law principles which could prove harmful to the growth of certain online services such as cloud-computing services which are inherently cross-border in nature. Whilst acknowledging that conflict of laws issues cannot be addressed by a single mechanism, the Commission states its intention to work on existing policies and conduct a detailed review of conflicts and jurisdictions with a view to assessing the means necessary to resolve any arising conflicts.
Link to the Report: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2014:0072:FIN:EN:PDF