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(Private) International Law for a Digitalised World – Collision, Coexistence or Combination?

The author of this post is Prof Dr Dan Jerker B. Svantesson, Professor at the Faculty of Law, Bond University (Australia), Visiting Professor at Masaryk University (Czech Republic) and Associated Researcher at the Swedish Law & Informatics Research Institute, Stockholm University (Sweden).

On 6 December 2020, I had the great honour of giving a presentation at the Royal Netherlands Society of International Law’s Annual General Meeting. The topic I had been invited to address was the questions of whether (public and private) international law is ready for the, already ongoing, digital age. In essence, I made six observations:

  1. Examples can be found of the online environment undermining the proper functioning of public and private international law structures;
  2. As structured and applied online today, public and private international law creates a situation of ‘hyperregulation’;
  3. The complexity of international law stems in part from the fact that the frameworks and concepts applied were developed in other eras and under other conditions resulting in them being insufficient to address the issues with which we are confronted now at the beginning of the 21st century;
  4. The international law community must do more to engage with, and prioritise, Internet-related legal issues, and must seek to increase the profile of public and private international law in the Internet regulation community;
  5. Examples can already be found of, more or less, self-regulatory Internet-related ADR schemes that effectively exclude international law altogether (see here). We must recognise that, with a proliferation of such schemes, the role and influence of international law decreases; and
  6. The international law community ought to do more to engage with large, forward-looking, questions such as how AI may support, and indeed reform, how we work with international law (see further here). In this context, we must be brave enough to be willing to reconsider also the most entrenched notions.

I am happy to have the opportunity to summarise some of my arguments here. Focus will be placed on the first four of the topics outlined above.

The Online Environment Undermining the Proper Functioning of Public and Private International Law Structures

There is a long-standing recognition of a tension between the largely borderless Internet and the border-focused law. However, here I want to point to a more specific (and recent) illustration of how the online environment challenges the proper functioning of private international law.

Ordinarily, the need for recognition and enforcement works to counter the impact of excessive foreign claims of jurisdiction that are contrary to a country’s public policy. However, the protection and equalising effect normally provided by the need for recognition and enforcement has been severely undermined by courts claim a broad ‘scope of jurisdiction’ (see also here) or ‘scope of remedial jurisdiction’ as preferred by the Court of Appeal for British Columbia (see here).

Scope of jurisdiction relates to the appropriate geographical scope of orders rendered by a court that has personal jurisdiction and subject matter jurisdiction. This question has gained far less attention to date than the other two types of jurisdiction. Yet, to understand its significance we need only consider the fact that, any time a court orders an Internet actor to block, delist, deindex, de-reference, delete, remove, or takedown content, it will need to consider whether to grant that order only in relation to publications in the state where the court sits, or to extend the order more widely – perhaps even globally. Thus, it is unsurprising that scope of jurisdiction has emerged as one of the most hotly contested ‘battle ground’ in the intersection between international law and the Internet.

In a situation where a court claims worldwide scope of jurisdiction in the context of an order against a major Internet platform, and that platform complies with the order, there simply is no need for recognition and enforcement – the worldwide impact is automatic.

Imagine, for example, that a Dutch citizen in the Netherlands posts something on a US social media site. The posting, while perfectly legal in both the Netherlands and in the US, is seen to be offensive to the Communist Party of China and a Chinese court or authority orders its removal. If the US social media company complies, the removal is effective worldwide without the need for any enforcement action in neither the Netherlands nor in the US. In fact, the laws and legal systems – including the public policies – of these countries do then not feature in the equation at all.

The threats to free speech posed by this scenario are beyond intelligent dispute. However, things get much worse when we consider that the CJEU’s recently adopted approach means that Internet platforms are not only subject to orders to remove posted content, but also to block – potentially with worldwide effect – future content that is ‘equivalent’ to the content removed (see further here and here).

Applying this to the China-related example above, we are heading towards a situation in which e.g. Chinese law may stifle regime critics from other countries to the degree that their postings, while lawful where the person resides, are censored by non-Chinese Internet platforms. In such a situation, the private international law of the state in which the person or the platform are based, has no influence. Further, it is doubtful that public international law as it stands provides sufficient protection, at least if the interpretation of the relevant rules of public international law are left to the country wishing to effect the censorship as suggested by the CJEU.

As Structured and Applied Online Today, (Public and) Private International Law Creates a Situation of ‘Hyperregulation’

The only reason law does not make impossible the operation of the Internet is found in the combined effect of, on the one hand, self-imposed state restraint in not applying their laws as widely as they could and, on the other hand, more pragmatically, enforcement difficulties. Worryingly, it seems to me that the latter of these factors plays a considerably larger role than does the former.

To see the extent of the challenge, we need only consider the number of countries’ laws that may apply to something as mundane as an unflattering social media post about another person. The person making the posting may have to take account of the law of the country she is in at the time of making the posting, the law of the country in which she is habitually residing (and/or has domicile) and, if different, the law(s) of her country of citizenship(s). Then she will probably also need to consider US law as most major social media platforms are based in the US (although there is also a considerable uptake in social media – such as the Chinese platform TikTok – from other parts of the world). We are here already confronted by a few, potentially very different, legal systems providing laws with which the person making the posting is meant to comply.

Given that our hypothetical posting relates to another person, we may also need to consider the laws of that person’s location, residence, domicile and citizenship(s). And we may also need to consider the laws of any additional countries in which that person has a reputation to protect.

Furthermore, under the law of many, not to say most, countries focus may be placed on where content is downloaded or read; two distinct, but often conflated, activities. Thus, the person making the posting will also need to comply with the laws of all the countries in which her ‘friends’ or ‘connections’ are found; and less predictably, the laws of all the countries in which they may be located when reading her posting. It goes without saying that, the number of additional legal systems to be considered grows with the number, and geographical diversity, of her friends or connections, and in light of the mobility of people, may never be fully ascertained at the time of posting.

As if the complexity alluded to so far was not enough, things get even messier when we confront the liability that may stem from re-publications; that is, to map out the full extent of potentially applicable laws, we must also take account of the laws of all the countries in which re-posted versions of the original posting may be downloaded or read. Here the original poster obviously loses all possibilities of predicting the scope of laws to which she may be exposed.

Finally, content placed on social media platforms is often stored in ‘the cloud’, and while we as users may not necessarily be able to find out where our content is located, we may be legally obligated to consider the laws of the country in which it is stored.

This legal situation, of extraordinary complexity, is what billions of social media users face on a daily basis. For the absolute majority, their postings will not lead to any legal drama. However, the thought of being exposed to potential legal liability in a large number of countries should be a concern to anyone. And of course, the very idea that you strictly speaking should inform yourself of all those laws you are meant to follow is daunting indeed.

Elsewhere (see here), I have described this as a situation of ‘hyperregulation’ characterised by the following conditions:

  1. the complexity of a party’s contextual legal system (i.e., the combination of all laws that purport to apply to that party in a given context) amounts to an insurmountable obstacle to legal compliance; and
  2. the prospect of legal enforcement of (at least parts of) the laws that make up the contextual legal system is more than a theoretical possibility.
The Complexity of International Law Frameworks and Concepts

In the context of applying international law to Internet activities or situations there are numerous instances of competing legitimate interests; State A’s protection of free speech may be difficult to reconcile with State B’s restrictions on hate speech, and so on. On a slightly more general level, we may observe that broad claims of jurisdiction may unreasonably interfere with the rights of people in other States, while restrictive approaches to jurisdiction may render a victim without realistic access to justice. Thus, the difficulties we experience in applying international law to the Internet stem from the fact that the ‘genuine regulatory challenges’ we need to work with are both numerous and go to the depth of involving the most fundamental legal notions. Yet this does not fully explain the complexity of our situation.

The application online of the pre-Internet legal concepts that make up public, and private, international law often involves decisions on the appropriate analogies and metaphors. As I have been arguing for the past 15 years, we must try to avoid inappropriate reliance on metaphors and analogies (see here).

In the survey that formed the base for the Internet & Jurisdiction Global Status Report 2019, several interviewed experts emphasised the concern that, in the jurisdiction field, legal concepts are old fashioned and outdated. Furthermore, one of the survey questions posed the claim that we already apply the right legal concepts to address cross-border legal challenges on the Internet. Among the surveyed experts, 46% either disagreed or strongly disagreed, 36% indicated that they neither agreed nor disagreed, and only 18% either agreed or strongly agreed.

This, it is submitted, hints at what may be termed ‘artificial (i.e. manmade) regulatory challenges’ in that the frameworks and concepts being applied are insufficient to address the issues with which we are confronted. In general, it seems that international lawyers are looking at all changes taking place in today’s world through the lenses of vested concepts such as extraterritoriality, sovereignty etc. They want the world to be guided by reference to these concepts. Yet it should perhaps be the other way round – the concepts we use should be guided by how the world in fact is. While we of course ought to make use of those concepts that truly remain useful, we must also be prepared to develop new concepts if reality so requires. In other words, the inadequacy of the tools may cause regulatory challenges preventing, or at least limiting, progress.

It seems to me that the Internet jurisdiction debate these days is focused on tackling the most imminent day-to-day issues (some of the ‘genuine regulatory challenges’), at the expense of attention being directed at the underlying conceptual mess (the ‘artificial regulatory challenges’). This is of course natural given the very real impact these challenges have for society. However, real progress can only be made where we also tackle the ‘artificial regulatory challenges’.

Examples of proposals I have advanced to address these artificial regulatory challenges include:

  1. A new jurisprudential framework for the concept of jurisdiction (see here);
  2. The categorisation of types of jurisdiction under public international law, introducing the concept of ‘investigative jurisdiction’ (see here);
  3. The introduction of the concept of ‘scope of jurisdiction’ (discussed above); and
  4. A clarification of the status of ‘sovereignty’ (see here).
The International Law Community and the Internet

In 2019, online retailer Amazon surpassed Walmart to become the world’s largest retailer, and tech companies feature prominently on lists ranking the world’s most powerful companies. The world’s most populous states – China and India – have an estimated 1.39 and 1.35 billion citizens respectively; but Facebook has a ‘population’ of 2.45 billion active users. Thus, a rule introduced in the laws of China directly affects just over half as many people as does a rule introduced in Facebook’s Terms of Service!

In addition, there is a clear ongoing trend of borders between the online data-driven world and the physical world are eroding. In the Internet of Things (IoT) era, however, the speed with which these borders erode is increasing dramatically, with effects for all aspects of society. Put simply, the offline world is no longer offline.

To all this may be added the changes in the world due to the, at the time of writing, ongoing pandemic. With large parts of the physical world currently in lockdown, it may be said that the online world is now working better than does its offline counterpart.

Our currently increased reliance on online at the expense of the offline may well affect behaviour patterns long-term, meaning that we will continue to live an even greater segment of our lives online in the future also after the world has overcome the pandemic. This is an aspect of a broader phenomenon that may be termed ‘COVID-19 driven trend acceleration’; that is, already existing trends are significantly accelerated due to the COVID-19 pandemic and how society adjusts to it.

The message stemming from the above is clear, loud and beyond intelligent dispute – cross-border Internet-related legal issues are central matters in society and need to be treated as such also private and public international law.

Yet, law in general, but public and private international law in particular, treats Internet issues as an exotic side dish to the main course taken for granted as being the offline – physical – world. Anyone doubting this claim need only take a glance at the tables of content of textbooks and journals in those respective fields: Internet issues do feature but typically only to a very limited, subsidiary, extent. Approaching Internet-related legal issues in this manner is unsustainable in today’s world where cyber is such a big part of our lives.

Thus, it seems to me that an important task that remains to be completed is to recalibrate the debate from one of a clash between (international) law and the Internet, to one focused on how international law can better help facilitate a desirable online environment.

Final Remarks

As it turns out, the Internet is not a fad after all. It is not just here to stay; it is here to dominate our lives. Looking at news reports, and indeed society in general, this is obvious. Yet looking at legal literature in general, and international law in particular, it is not adequately reflected. This is unsustainable and those who take pride in proclaiming that they do not deal with Internet issues are escapists at risk of irrelevance. What is worse, much could have been achieved to create better Internet regulation – and ultimately a better world – had more experts from non-technology fields been more willing to engage with these novel legal issues as they became apparent. I hope the 2020 Royal Netherlands Society of International Law’s debate on a current issue in the domain of international law can help create real awareness and greater discussions of these issues, at least for the Netherlands – a longstanding leader in progressive, constructive, and creative thinking in international law – but hopefully more broadly.

But as noted by Juenger: “[T]urmoil is bound to happen whenever old principles clash with new realities” (see here), and in few other areas has this so clearly proven to be the case as it has when applying private and public international law principles to the online environment. Much remains to be done to improve the relationship between international law and the Internet, and the tasks that lie ahead – tasks for us all – are huge indeed. But they are neither unsurmountable, nor are they optional.

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