International Internet Law
- an introduction
Joanna Kulesza
Forum Rettsinformatikk
23. mai 2013, Sandefjord
scope
What laws govern online disputes?
the jurisdictional challenge
Where do you initiate legal proceedings?
the practical challenge
What are the things to consider?
international Internet law – an introduction
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What laws govern online
disputes?
the jurisdictional challenge
state jurisdiction
may be exercised above all:
• within state territory
• where state competence is complete
and exclusive
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state jurisdiction
outside own territory may be exercised within:
• territories of other states
• common territories - so-called international
spaces (open sea, Antarctic, outer space)
always under authority of international law
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exterritorial jurisdiction
exercising state jurisdiction outside state
territory may lead to conflicts of jurisdiction
 principles for eliminating such conflicts are
needed
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exercising jurisdiction
basic set of jurisdictional principles
1. territoriality principle (territorial jurisdiction)
2. effects principle (effective jurisdiction)
3. personality principle (personal jurisdiction)
4. protective principle (protective jurisdiction)
5. universality principle (universal jurisdiction)
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territoriality principle
territorial jurisdiction
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territoriality principle
territorial jurisdiction
If a person, property or event is
located within state borders,
state is authorised
to exercise its power over them
subjective territorial jurisdiction
• basic principle
• justifies all legislative state activity
• any limitations thereof must come from
international law
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territorial jurisdiction in cyberspace?
subjective territorial jurisdiction
• regulating the actions of state residents
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12
www.news.com.au
effects principle
effective jurisdiction
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effects principle
effective jurisdiction
objective territoriality principle
• applicable to events taking place outside state territory if
they cause or are aimed at causing serious damage within
the state territory
• events taking place outside state territory are subject to its
legislation
• exercised primarly in transborder criminal cases (e.g. murder
taking place over state border)
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effective jurisdiction in cyberspace?
objective territorial jurisdiction
• brings complete legal insecurity
• actions taken in cyberspace cause directs results in
each state territory where Internet is accesible
• the very fact of enabling certain electronic contents
online may not result in applying national legislation
to all Internet users
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personality principle
personal jurisdiction
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personality principle
active personal jurisdiction
applicable over
own nationals abroad
(living and temporarily residing)
 diplomatic aid
 applying criminal laws against wrongdoers who
flee the country
• enforced through extradition agreements
• requires dual penality
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active personal jurisdiction in cyberspace?
• a relatively clear and familiar set of rules for each
internet user
• enables estimating the risk of undertaking actions
on-line
• but requires double penality
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personality principle
passive personal jurisdiction
applicable to
events taking place outside state territory
resulting in damage to state national
• used to be applied rarely (due to diplomatic and
moral reasons)
• is being exercised forever more extensively
(antiterrorist policies)
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passive personal jurisdiction in
cyberspace?
• often used for Internet related cases
• brings legal insecurity
• puts Internet users under many national
legal systems simultanously
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protective principle
protective jurisdiction
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protective principle
protective jurisdiction
• allows to persecute acts committed abroad by
non-state nationals if the state feels
threatened by those acts
• applies to few categories of offences:
o crimes against state security
o crimes against state functionality
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protective jurisdiction in cyberspace?
• solely effective against new cybercrimes (hacking,
cracking, computer sabotage)
• requires enhanced international cooperation in
criminal matters and functioning extradition treaties
• requires defining cybercrimes and cyberterrorism
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universality principle
universal jurisdiction
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universality principle
universal jurisdiction
state is entitled to create legislation penalizing certain
categories of acts regarded by the international
community as so damaging they should be
persecuted by all its members
• a perpetrator is persecuted regardless of the location
where they commited:
o
o
o
o
o
marine time piracy
slave trading
attacks and kidnappings of air and sea ships
genocide and war crimes
some terrorist acts
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universal jurisdiction in cyberspace?
• doesn’t require further cooperation among states
• may be legitimatelly used to combat crimes againts
the international community
• usually only incitement to universal crimes may be
committed on-line
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Convention on the Prevention and
Punishment of the Crime of Genocide
Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948.
Article 2 In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 3
The following acts shall be punishable:
(c) direct and public incitement to commit genocide;
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universal jurisdiction?
incitement to genocide?
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Where do you initiate legal
proceedings?
the practical challenge
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the jurisdictional puzzle
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the treaties
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Jurisdiction in cyberspace?
existent sequence of jurisdictional principles
is not satisfactory
How to set the limits of state power in
cyberspace?
 interpreting existing legal norms?
 setting new mechanisms for cooperation,
specific for online activities?
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Jurisdiction in cyberspace?
• an international concensus is required to set the
sequence of legal priciples applicable to electronic
communications
until then?
• interpretation of existing laws
• cyber law vs. real law
do we need Internet law?
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cyber law vs. real law
36
© J. Kurbalija, Introduction to Internet Governance
What are the things to
consider?
international Internet law – an
introduction
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international Internet law
narrow approach
legal regulation behind Internet back-bone
(DNS, TCP/IP, root-servers, ICANN)
o Internet backbone administration model
o Internet backbone property model
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© telegeography.com
39
international Internet law
general approach
legal framework for Internet Governance
“the
joint
development
and
application
by
Governments, the private sector and civil society, in
their respective roles, of shared principles, norms,
rules, decision-making procedures, and programmes
that shape the evolution and use of the Internet.”
Report of the Working Group on Internet Governance (2005), pt. 10, p. 4.
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From IG to IIL
The body of work of UN delegate organizations
together with previous achievements of other
international fora (CoE, IETF, ICANN) allow to identify
the basic principles of the international IG regime
This set of rules together with the organizational
framework behind them allows to assert that what
once was solely a facet of international relations is
now becoming a new area of international law with a
clear set of principles, own terminology and
discussion fora.
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International Internet Law (IIL )
is developed by:
• international organizations
• national governments acting through international
law instruments, but also by the
• business and civil society members
in a new multi-stakeholder process
A new formula for shaping international law
is in the making
M.S. McDougal questions the actual distinction between law and policy
U. Fastenrath finds soft law crucial to exercising any political impact
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On general rules and principles Law of the horse?
"the best way to learn the law applicable to specialized
endeavors is to study general rules.
Lots of cases deal with sales of horses; others deal with
people kicked by horses; stIIL more deal with the
licensing and racing of horses, or with the care
veterinarians give to horses, or with prizes at horse
shows. Any effort to collect these strands into a
course on 'The Law of the Horse' is doomed to be
shallow and to miss unifying principles.”
F. H. Easterbrook (1996)
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IIL principles
I. Multistakeholderism
II. Cultural diversity
III. Freedom of access
IV. Openness
V. Network security
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Future of IIL
Future of IIL
• international cooperation of all stakeholders is
predominant to the existence and further evolution
of IIL
• elaboration of IIL content is taking place in multiple
international fora
future of IIL reflects the evolution of public international law:
• a universal hard-law framework for cyberspace
seems to be the background for recent CoE, EU, ITU
or ICANN activities
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Internet Framework Convention
an Internet Framework Convention would have to:
1) incorporate the IIL principles described above
2) tackle all the key issues of electronic communications
3) propose a unique multilateral and multi-stakeholder
regime based on a wide contractual consensus
acceptable to national authorities, international
organisations, industry representatives and civil
society
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Internet Framework Convention
for the consensus to be binding, the Convention would
have to foresee at least two interrelated
responsibility/liability mechanisms
the rules for private law entities (from industry or civil
society sectors) would have to differ from traditional
international law schemes applicable to states
might be based on the current trends in IT industry
endorsing self-regulatory privacy protection, using
peer pressure and consumer choice, rather than
traditional contractual liability
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Internet Framework Convention
• particular solutions for each issue tackled within the
Convention might be further developed within its
Additional Protocols
• Additional Protocols could derive richly from
international law: environmental law, human rights
regime, law of the sea
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Thank you
joannakulesza@gmail.com
graphics: ©istock unless indicated otherwise