'Balancing Internet Regulation and Human Rights' by Aleksey Ponomarev
indicates that -
It’s not a secret that with the development of the Internet the transition from freedom into control can be noticed. Having been considered as a completely independent medium of communication which lays outside of any state jurisdiction according to views of "digital libertarians" in the early days of the Internet, cyberspace is becoming fully, and extensively, regulated space that we have ever known. This article aims to analyze the current instruments of Internet regulation both legal and through Internet architecture, and to find a balance between necessity of regulation in one hand and obligation to follow human right standards on the other hand. For this purpose various Internet control and censorship techniques is discussed, as well as international human rights standards which might be jeopardize by exercising of such control. In the end the attempt to strike a balance between Internet regulation and human rights is has been made.
Ponomarev concludes that -
it is clear that the Internet can be a tool to expand our fundamental rights, empowering us with boundless information and connecting us with individuals and communities around the world. While it is a powerful and positive forum for free expression and exchange of ideas and knowledge, the Internet poses a profound danger to our fundamental rights, serving as a tool for criminals and even terrorists. Threats come also from private sector which restricts privacy and freedom of knowledge. However there is a common view about free and independent Internet, it is obvious that state regulation is inevitable. And least clear of all is how we can regulate the Internet in such a way that allows us to draw on its benefits, while limiting the very real and serious dangers of abuse. The regulation is complicated due to the inherent nature of the Internet — a decentralized, user-driven network that is under the control of no government and that transcends nearly all borders.
Although regulation of cyberspace is not easy task it does not mean that it is not needed. While it is true that market and social norms influence the Internet to some extent, in reality law and architecture are main regulators of cyberspace. Legal and technological measures are applied separately or in a combination. In some cases, for example when all parties are located within the physical territory of a particular state, regulation is rather effective, but when information comes from external sources it is almost impossible to control that flow of the Information. The law of the regulating state cannot be normally applied to foreign entity and states. Various technologies of the Internet filtering aimed to restrict the access of ‘harmful’ or ‘unwanted’ information or web-pages are neither effective, nor reliable (in case of geo-identification for example). Above-mentioned technologies cannot only be easily circumvented, but are also extremely costly and might violate fundamental human rights of Internet users.
Both legal and technological measures of the Internet regulation jeopardize rights and freedoms which constitute the highest values of free democratic society. Internet filtering methods such as Deep Packet Inspection as well as self-censorship measures constitute the highest danger for human rights.
Traditional rights to freedom of speech and expression, right to privacy and freedom of knowledge also should be protected in the Internet, as in the real life. Thus, all international human rights instruments apply to the cyberspace as well. Moreover one can witness the emergence of a new generation of rights – Internet rights. The said rights support the basic principles of the Internet architecture, guarantee the freedom of the Internet and free flow of information within cyberspace.
However all rights and freedoms are not absolute and are a subject to restrictions, cause there is tension between individual right and obligation of the state to exercise its functions social and security functions. Ways of finding a balance are provided in human rights instruments, however it is very difficult not to overstep the prescribed rules. According to the author’s view traditional rights should be reaffirmed and new Internet rights fixed by adapting a new international legislation focused on Internet. An attempt to unify possible exception from human rights should be made, harmonization of moral and national security limitation should also be reached. As Internet is international phenomena a collective efforts of states should be taken in order to regulate the Internet. The treaties might be realized in form of ‘soft law’ – declarations, recommendations, reports, as well as acts of international organizations, non-governmental organizations. It matters little whether these instruments are “non-binding” because this law is more likely to be enforced in the so-called ‘court of public opinion’ than in a judicial forum.
Special mechanisms should be designed to pressure states to refrain from violating rights. Civil organizations and human rights advocate representing the opinion of the society should be part of that mechanism. Moreover every user should be given a chance to participate in the process of regulation of the Internet influencing technologies of the Internet control.
Finally, people should not forget that the Internet was made for providing new opportunities for communication, business, information sharing, as well as for promoting human rights and freedoms all over the world. Thus any restrictions of both well recognized and innovative rights should be accurate and limited according to the interests of the society.
