3 – Who Regulates The Internet?
Term: Meaning:
Chokepoints • Points of control where someone can affect whether or not a service or content is accessible or not accessible
The issue of jurisdiction:
• “Cyberspace radically undermines the relationship between legally significant (online) phenomena and physical location. The rise of the global computer network is destroying the
link between geographical location and: (1) the power of local governments to assert control over online behaviour; (2) the effects of online behaviour on individuals or things; (3)
the legitimacy of the efforts of a local sovereign to enforce rules applicable to global phenomena; and (4) the ability of physical location to give notice of which sets of rules
apply.”1
One way to resolve jurisdictional conflict = Comity
Comity explained:
• Can be used where we have conflicts of jurisdiction
• This relies on good relations between states in terms of negotiating and resolving claims of jurisdiction – obviously this isn’t always going to work as a solution
The US Supreme Court’s formulation of Comity:
• “the recognition which one national allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and
convenience, and to the rights of its own citizens or of other persons who are under the protection of its law”2
UK case law on issues of jurisdiction – Offline:
BEREZOVSKY v FORBES (2000)
Facts: Judgement: Relevance:
• Forbes published defamatory material • Court said that the claimant has • Cyber libertarian perspective - The UK isn't the best place to hear this
regarding two Russian businessmen in interests in England and so it is • The risk for Forbes here is that in any jurisdiction where the magazine was available they could
Forbes magazine. Berevosky was not a fine for B to make a claim be sued - this would make publication very risky
UK resident and only 0.25% (1,915 • Per Lord Steyn: “The present
copies) of magazines were distributed case is a […] multi-jurisdictional
in the UK. case. It is also a
• B wasn’t registered in the UK but he case in which all the constituent
had business interests in the UK elements of the
• The number of magazines distributed torts occurred in England. The
in the UK was less than the rest of the distribution in England of the
world defamatory material was
1
David R Johnson and David Post, ‘Law and Borders: The Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367.
2
‘Hilton v. Guyot, 159 U.S. 113 (1895)’ (Justia Law) <https://supreme.justia.com/cases/federal/us/159/113/> accessed 18 March 2023.
,• F said look UK isn't the best place to significant. And the plaintiffs
hear this case have reputations in England to
• Question for the court - was the UK protect. In such cases it is not
the correct forum for the case? unfair that the foreign publisher
should be sued here.”
UK case law on issues of jurisdiction – Online:
DOW JONES v JAMEEL (2005):
Facts: Judgement: Relevance:
• The Wall Street Journal (WSJ) obtained • The court here took a more • The court took a de minimis route in response to the potential floodgates argument of
secret documents regarding al Qaeda, technical view and looked at the treating all internet publications as publications that have effect in the UK
including a ‘Golden Chain’ document extent to which the content had • Not allowed to claim -
which listed 20 alleged Saudi financial actually been viewed - only 2
backers of Osama Bin Laden, including externals had accessed it
Mr. Jameel. • Lord Philips MR : “It would be
• The WSJ published a story on its an abuse of process to continue
website with a link to the 20 names. to commit the resources of the
• Mr Jameel argued that this was English court, including
defamatory substantial judge and possibly
• Q for the court - Was there harm in jury time, to an action where so
England and Wales? little is now seen to be at
• 6,000 subscribers to website in stake.” – thus waste of time and
England and Wales, 5 subscribers had resources
clicked on the hyperlink (3 of whom
were known to the Court)
The current law on defamation in the UK:
S.9(2) Defamation Act - Action against a person not domiciled in the UK or a Member State
‘A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained
of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.’
Therefore…
• Ultimately there was a reform of defamation law due to the effect of the internet on defamation
• This act was introduced - you need to consider whether the courts of E&W are the most appropriate place to bring an action - thus this significantly limits the jurisdiction of the
courts - so laws have been trying to deal with this jurisdictional grab that may happen on the internet
• Meaning of appropriate –
o If reach is far – Forbes – then fine to claim in England and Wales
o If reach is not far – Jones – then not appropriate to claim in England and Wales
, C-507/17 GOOGLE INC v CNIL (2019):
Questions posed by this case:
1. Does the de-referencing right extend to all domain names, irrespective of whether the search is conducted outside EU?
2. Is the search engine only required to delist from domain name corresponding to State where search request is made, or more broadly for all domain names linked to EU States?
3. In addition, is a search engine required to use geo-blocking techniques for searches from IP addresses in the individual’s State of residence, or more generally from all IP
addresses in EU States?
Facts: Judgement:
• C tried to impose an • The court says that if you look at the wording of the GDPR and predecessor legislation that it wasn’t designed to have a global effect - so no
order on google to obligation to remove from global sites
remove certain
content from google • Not apparent from the wording of the law that it was intended to have global application [62]
everywhere in the o Thus, no obligation to dereference on all versions of the search engine. [64].
World (Rather than o But must be carried out in all EU Member States [66]
just France)
• Thus this is again a • Need to put in place measures to prevent EU users from using e.g. VPNs –
claim to the
extraterritorial • EU law does not require or prohibit global de-referencing… à “Accordingly, a supervisory or judicial authority of a Member State remains
application of the law competent to weigh up, in the light of national standards of protection of fundamental rights (….) , a data subject’s right to privacy and the
• Went to the EU court protection of personal data concerning him or her, on the one hand, and the right to freedom of information, on the other, and, after weighing
too those rights against each other, to order, where appropriate, the operator of that search engine to carry out a de-referencing concerning all
versions of that search engine.” [72]
• Thus, Para 72 -> gives it back to EU member states, for them to weigh up in light of their rights granted to citizens - after doing the balancing to
determine whether the operator should carry out the delisting everywhere - so entirely possible that in France that the data protection authority
would continue to mandate global delisting even though it isn't required in EU law -> thus fragmentation depending on where you access the
internet from
The role of digital platforms:
• “Internet Intermediaries bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products and
services originated by third parties on the Internet or provide Internet-based services to third parties.” OECD (2010)
Intermediary responsibility:
• “So, the problem is to establish to what extent intermediaries that contribute to creating a socially beneficial communication infrastructure, should be liable for misuse of that
infrastructure by their users”. European Parliament, Report on Intermediaries (2017)
Intermediary liability exemptions:
, E-Commerce Regulations 2002: Hosting – Reg. 19
Where an Information Society Service stores information provided by its customers. It is not liable for damage or criminal sanctions provided that:
• It did not know that anything unlawful was going on;
• Where a claim for damages is made, it did not know anything that should have led it to think that something unlawful might be going on; or
• When it found out that that something unlawful was going on, it acted expeditiously to remove the information or to prevent access to it, and
• The customer was not acting under the authority or the control of the service provider.
The law in Germany - 2017 Network Enforcement Act (NetzDG – Germany )
Social media platforms obliged to remove content that is ‘manifestly unlawful’ within a 24 hour period of receiving a complaint; all other unlawful content must be removed within 7
days (with limited exceptions)
Factors incentivising take-down:
- Severity of the sanctions (up to €50 million)
- Volume of complaints (Jan-June 2018: 1,704; 21% removal; 76% in 24 hours)
Private ordering through terms of service:
Belli and Venturini, Private Ordering and the Rise of Terms of Service as Cyber-Regulation:
• “….online private ordering relies on the key role of Terms of Service [ToS] and their technical implementation as fundamental regulation and implementation tools for governing
the internet ecosystem. While acknowledging that ToS are an efficient and well-suited instrument to regulate the online world, we stress that ToS represent a tool of unilateral
imposition of rules, despite being presented as voluntarily accepted by the involved parties through the expression of free and informed consent.”
4 – Who Regulates The Internet? Net Neutrality And Platform Power:
Background to this topic:
• Private actors are prominent regulators and a big example of this = net neutrality and exercise of power at the platform level
• If we think about the internet architecture
o Physical - net neutrality blocks/impedes the distribution of content at that layer
• We typically think of ourselves as being regulated as public - the power of the state - we have constitutions to make sure states don’t abuse their power
• The argument - private actors are increasingly exercising power because of the nature of the digital environment - we might need new rules to curtail the power of private
actors in the same way that laws constrain the state
Definitions:
Net Neutrality • ‘Net Neutrality is the principle that data packets on the internet should be moved impartially without regard to content, destination or source.’ (Murray,
Information Technology Law)
Term: Meaning:
Chokepoints • Points of control where someone can affect whether or not a service or content is accessible or not accessible
The issue of jurisdiction:
• “Cyberspace radically undermines the relationship between legally significant (online) phenomena and physical location. The rise of the global computer network is destroying the
link between geographical location and: (1) the power of local governments to assert control over online behaviour; (2) the effects of online behaviour on individuals or things; (3)
the legitimacy of the efforts of a local sovereign to enforce rules applicable to global phenomena; and (4) the ability of physical location to give notice of which sets of rules
apply.”1
One way to resolve jurisdictional conflict = Comity
Comity explained:
• Can be used where we have conflicts of jurisdiction
• This relies on good relations between states in terms of negotiating and resolving claims of jurisdiction – obviously this isn’t always going to work as a solution
The US Supreme Court’s formulation of Comity:
• “the recognition which one national allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and
convenience, and to the rights of its own citizens or of other persons who are under the protection of its law”2
UK case law on issues of jurisdiction – Offline:
BEREZOVSKY v FORBES (2000)
Facts: Judgement: Relevance:
• Forbes published defamatory material • Court said that the claimant has • Cyber libertarian perspective - The UK isn't the best place to hear this
regarding two Russian businessmen in interests in England and so it is • The risk for Forbes here is that in any jurisdiction where the magazine was available they could
Forbes magazine. Berevosky was not a fine for B to make a claim be sued - this would make publication very risky
UK resident and only 0.25% (1,915 • Per Lord Steyn: “The present
copies) of magazines were distributed case is a […] multi-jurisdictional
in the UK. case. It is also a
• B wasn’t registered in the UK but he case in which all the constituent
had business interests in the UK elements of the
• The number of magazines distributed torts occurred in England. The
in the UK was less than the rest of the distribution in England of the
world defamatory material was
1
David R Johnson and David Post, ‘Law and Borders: The Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367.
2
‘Hilton v. Guyot, 159 U.S. 113 (1895)’ (Justia Law) <https://supreme.justia.com/cases/federal/us/159/113/> accessed 18 March 2023.
,• F said look UK isn't the best place to significant. And the plaintiffs
hear this case have reputations in England to
• Question for the court - was the UK protect. In such cases it is not
the correct forum for the case? unfair that the foreign publisher
should be sued here.”
UK case law on issues of jurisdiction – Online:
DOW JONES v JAMEEL (2005):
Facts: Judgement: Relevance:
• The Wall Street Journal (WSJ) obtained • The court here took a more • The court took a de minimis route in response to the potential floodgates argument of
secret documents regarding al Qaeda, technical view and looked at the treating all internet publications as publications that have effect in the UK
including a ‘Golden Chain’ document extent to which the content had • Not allowed to claim -
which listed 20 alleged Saudi financial actually been viewed - only 2
backers of Osama Bin Laden, including externals had accessed it
Mr. Jameel. • Lord Philips MR : “It would be
• The WSJ published a story on its an abuse of process to continue
website with a link to the 20 names. to commit the resources of the
• Mr Jameel argued that this was English court, including
defamatory substantial judge and possibly
• Q for the court - Was there harm in jury time, to an action where so
England and Wales? little is now seen to be at
• 6,000 subscribers to website in stake.” – thus waste of time and
England and Wales, 5 subscribers had resources
clicked on the hyperlink (3 of whom
were known to the Court)
The current law on defamation in the UK:
S.9(2) Defamation Act - Action against a person not domiciled in the UK or a Member State
‘A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained
of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.’
Therefore…
• Ultimately there was a reform of defamation law due to the effect of the internet on defamation
• This act was introduced - you need to consider whether the courts of E&W are the most appropriate place to bring an action - thus this significantly limits the jurisdiction of the
courts - so laws have been trying to deal with this jurisdictional grab that may happen on the internet
• Meaning of appropriate –
o If reach is far – Forbes – then fine to claim in England and Wales
o If reach is not far – Jones – then not appropriate to claim in England and Wales
, C-507/17 GOOGLE INC v CNIL (2019):
Questions posed by this case:
1. Does the de-referencing right extend to all domain names, irrespective of whether the search is conducted outside EU?
2. Is the search engine only required to delist from domain name corresponding to State where search request is made, or more broadly for all domain names linked to EU States?
3. In addition, is a search engine required to use geo-blocking techniques for searches from IP addresses in the individual’s State of residence, or more generally from all IP
addresses in EU States?
Facts: Judgement:
• C tried to impose an • The court says that if you look at the wording of the GDPR and predecessor legislation that it wasn’t designed to have a global effect - so no
order on google to obligation to remove from global sites
remove certain
content from google • Not apparent from the wording of the law that it was intended to have global application [62]
everywhere in the o Thus, no obligation to dereference on all versions of the search engine. [64].
World (Rather than o But must be carried out in all EU Member States [66]
just France)
• Thus this is again a • Need to put in place measures to prevent EU users from using e.g. VPNs –
claim to the
extraterritorial • EU law does not require or prohibit global de-referencing… à “Accordingly, a supervisory or judicial authority of a Member State remains
application of the law competent to weigh up, in the light of national standards of protection of fundamental rights (….) , a data subject’s right to privacy and the
• Went to the EU court protection of personal data concerning him or her, on the one hand, and the right to freedom of information, on the other, and, after weighing
too those rights against each other, to order, where appropriate, the operator of that search engine to carry out a de-referencing concerning all
versions of that search engine.” [72]
• Thus, Para 72 -> gives it back to EU member states, for them to weigh up in light of their rights granted to citizens - after doing the balancing to
determine whether the operator should carry out the delisting everywhere - so entirely possible that in France that the data protection authority
would continue to mandate global delisting even though it isn't required in EU law -> thus fragmentation depending on where you access the
internet from
The role of digital platforms:
• “Internet Intermediaries bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products and
services originated by third parties on the Internet or provide Internet-based services to third parties.” OECD (2010)
Intermediary responsibility:
• “So, the problem is to establish to what extent intermediaries that contribute to creating a socially beneficial communication infrastructure, should be liable for misuse of that
infrastructure by their users”. European Parliament, Report on Intermediaries (2017)
Intermediary liability exemptions:
, E-Commerce Regulations 2002: Hosting – Reg. 19
Where an Information Society Service stores information provided by its customers. It is not liable for damage or criminal sanctions provided that:
• It did not know that anything unlawful was going on;
• Where a claim for damages is made, it did not know anything that should have led it to think that something unlawful might be going on; or
• When it found out that that something unlawful was going on, it acted expeditiously to remove the information or to prevent access to it, and
• The customer was not acting under the authority or the control of the service provider.
The law in Germany - 2017 Network Enforcement Act (NetzDG – Germany )
Social media platforms obliged to remove content that is ‘manifestly unlawful’ within a 24 hour period of receiving a complaint; all other unlawful content must be removed within 7
days (with limited exceptions)
Factors incentivising take-down:
- Severity of the sanctions (up to €50 million)
- Volume of complaints (Jan-June 2018: 1,704; 21% removal; 76% in 24 hours)
Private ordering through terms of service:
Belli and Venturini, Private Ordering and the Rise of Terms of Service as Cyber-Regulation:
• “….online private ordering relies on the key role of Terms of Service [ToS] and their technical implementation as fundamental regulation and implementation tools for governing
the internet ecosystem. While acknowledging that ToS are an efficient and well-suited instrument to regulate the online world, we stress that ToS represent a tool of unilateral
imposition of rules, despite being presented as voluntarily accepted by the involved parties through the expression of free and informed consent.”
4 – Who Regulates The Internet? Net Neutrality And Platform Power:
Background to this topic:
• Private actors are prominent regulators and a big example of this = net neutrality and exercise of power at the platform level
• If we think about the internet architecture
o Physical - net neutrality blocks/impedes the distribution of content at that layer
• We typically think of ourselves as being regulated as public - the power of the state - we have constitutions to make sure states don’t abuse their power
• The argument - private actors are increasingly exercising power because of the nature of the digital environment - we might need new rules to curtail the power of private
actors in the same way that laws constrain the state
Definitions:
Net Neutrality • ‘Net Neutrality is the principle that data packets on the internet should be moved impartially without regard to content, destination or source.’ (Murray,
Information Technology Law)
