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Internet Johann-Christoph Woltag     Table of Contents A. Notion 1. History and Use 2. Technical Fundamentals B. Internet Governance 1. Internet Corporation for Assigned Names and Numbers (ICANN) (a) Legal Framework (b) Critique (c) Reform and Recent Developments 2. Sovereignty Issues 3. Uniform Domain Name Dispute Settlement 4. Net Neutrality C. Specific Legal Issues 1. Human Rights 2. Electronic Commerce 3. Cybercrime D. Assessment Select Bibliography Select Documents A. Notion ‘The internet’ comprises physically the entirety of the global interconnected computer networks, which colloquially is equated with the information, communication, and other services available therein. The term ‘internet’ is likewise used synonymously for its most famous and widely used service, the world wide web. 1. History and Use The internet is based on the Advanced Research Projects Agency Network, a project developed by the Defense Research Projects Agency of the United States Department of Defense in the late 1960s. In the 1980s, many US universities became connected; from thereon the exponential growth of the network began. However, the expansion of the internet to the mass medium it is today is said to have only been made possible through the introduction of the easyto-use world wide web service, developed at the → European Organization for Nuclear Research (CERN) in the 1990s. The internet may be used for a wide range of different activities, be it communication, information, entertainment, or commerce. Its emergence into nearly every field of daily life is viewed by some to have constituted a social or public sphere of a new kind, at times entitled ‘cyberspace’. However, the ubiquity of the internet and its importance for society and commerce also gave rise to its exploitation, especially through copyright infringements and cybercrimes (see paras 34–36 below). Its qualification as a critical infrastructure in many States likewise created the new dangers of ‘cyberterrorism’ and → cyber warfare. Until the mid-1990s, when the internet community was still mostly made up of programmers and scientists, the idea of an ‘independence of cyberspace’ received wide support. According to this concept, cyberspace constituted a sphere sui generis, outside both State authority and legal regulations. Although—at least from a legal standpoint—being unrealistic from the beginning, this approach was somewhat sustained as long as the interaction between the off- and online world remained limited. Today, however, it is clear that the internet is used as a medium to achieve certain results at an actual location (Schmahl 290). Thus, States very soon made clear that the ‘[p]olicy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues’ (para. 49 (a) Declaration of Principles of the World Summit on the Information Society [‘WSIS’]).

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© 2013 Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press

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But already the scope of the notion of internet governance is blurry. and test the mechanisms. The Working Group on Internet Governance established by the UN World Summit on the Information Society (‘WSIS’) in 2003 adopted a very wide definition: Internet governance is the development and application by Governments. and it being subject both to the state laws of California and US federal law.com is—currently—translated into 72. and content on. 1 (2) ICANN Bylaws) as one of its core values. and global interoperability of the Internet’ (Art. Even though these far-reaching competencies are mostly limited to decisions of a technical nature. Technical Fundamentals The internet is not a physically genuine data network.Max Planck Encyclopedia of Public International Law www. Whereas several States have managed to regulate or even restrictively control the usage of. the internet is used to transfer data between two computer systems. Established as a non-profit organization under Californian Nonprofit Public-Benefit Corporation Law. but is made up of a myriad of interconnected host and server computer systems. and programmes that shape the evolution and use of the Internet (Report from the Working Group on Internet Governance para 10). a hierarchical naming system for computer systems and similar devices) provides for a technical framework broadly comparable to that of a telephone book. the US Department of Commerce (‘DOC’) promoted the privatization of the technical management of the DNS. before making a transition to private sector DNS management. makes binding decisions on the architecture of the internet and the policies on the DNS.246. II B Joint Project Agreement). communicating via a unified network architecture with generally accepted protocols.mpepil. International Regulation). 6         7           8       1. the formats and rules by which data is communicated on the internet are laid down in the internet protocol suite—commonly referred to as TCP/IP—the key requirements of which are specified in Request for Comments 1122 ‘Requirements for Internet Hosts—Communication Layers’ of October 1989. rules. as formulated in the Memorandum of Understanding between the US Department of Commerce and Internet Corporation for Assigned Names and Numbers (‘Joint Project Agreement’). in their respective roles. which is the core of the mission of ICANN.com   5       2. In order for internet capable devices to be able to communicate with each other. Internet Governance Most States today have a clear and demonstrated interest in the regulation of activities on the internet (see also → Telecommunications. It can also encompass much more far-reaching issues such as the regulation of content or questions of jurisdiction. These operations—which mostly last only milliseconds—qualify the internet as a packet switched network. comprised of mainly private but also public actors. which regards ‘[p]reserving and enhancing the operational stability. as stated in Art. including the creation of new top level domains (‘TLDs’. Internet Corporation for Assigned Names and Numbers (ICANN) (a) Legal Framework Whereas the administration of the DNS was originally in the hands of the US government. the domain name mpepil. In fact. Basically. and procedures that will achieve the transition’ (ibid). Such an understanding of internet governance comprises more than just the allocation and assignment of the DNS and Internet Protocol (‘IP’) addresses. where the individual packages are reassembled to recreate the original data. ICANN. The DNS makes it possible to assign a name to a specific computer resource and translates domain names—which were only introduced in order to be easily understandable and memorizable by humans—into the relevant internet protocol adresses (eg. 1 (1) ICANN Bylaws. According thereto. the consequences thereof may © 2013 Max Planck Institute for Comparative Public Law and International Law. which is achieved by splitting up the data into several packages which are then sent across the network to the addressee. security. reliability. the private sector and civil society. Heidelberg and Oxford University Press 2 9   .com. However. Therefore.226). This technical interoperability between the various computer systems is accomplished inter alia through international standard-setting by the Internet Corporation for Assigned Names and Numbers (‘ICANN’). the DOC and ICANN were to ‘jointly design.de etc). Therefore.uk. its core elements are surely to be seen in those functions currently performed by ICANN. develop. eg. it was partly handed over to ICANN by its establishment in 1998.15. norms. the core of internet governance currently effectively lies outside their reach. the Domain Name System (‘DNS’. of shared principles. the corporations’s governance structure. However wide the scope of governance is defined. the DOC required ‘assurances that the private sector has the capability and resources to assume the important responsibilities related to the technical management of the DNS’ (para. the internet would not function globally if its protocols were not defined uniformly. B. methods. the corporation was from its beginning seen as controversial due to the involvement of the US government. decision-making procedures. the internet.

This has led some scholars to view ICANN’s actions as attributable to the US government. which. Yet another suggestion for internationalization is the transformation of the GAC to a truly supranational organization with oversight and control functions over a (still privatized) ICANN (Dederer 398). It is this structure of ICANN that qualifies internet governance for many as one of selfregulation. critics see regular users under-represented in relation to the commercial sector. However. 29). at least on paper. a questionable path if taking into consideration the traditional fields the CHM applies to. this view presupposes the qualification of the CHM as a functional rather than a territorial concept. or within ICANN’s own dispute settlement system. (c) Reform and Recent Developments With this criticism as a background. But as it functions solely as an advisory body lacking any decision-making power. transparent and democratic. ICANN claims to offer a participatory governance structure inclusive of the relevant commercial and non-profit actors. especially from → developing countries.com     be of a content. particularly matters where there may be an interaction between ICANN’s policies and various laws and international agreements or where they may affect public policy issues (Art. Critique likewise arises in regard to judicial control. commercial. ie the registries. namely natural conditions such as the seabed or outer space. 31). © 2013 Max Planck Institute for Comparative Public Law and International Law. Due to ICANN’s incorporation in California. Froomkin [2000] 113). based on the full participation of all stakeholders. However. In practice. This was partly recognized in the WSIS Tunis Agenda. Membership of the GAC is open to all national governments. the role of which is to consider and provide advice on the activities of ICANN as they relate to concerns of governments. thus representing a bottom-up approach excluding direct governmental involvement. However. influence by public authorities on ICANN remains at a low level. The Board of Directors is supported by several advisory committees. turning the participatory claim into an instrument of → hegemony (Von Bernstorff 513). The powers are mainly exercised by ICANN’s Board of Directors. 10         11       (b) Critique ICANN’s authority to govern is derived from the United States via the Joint Project Agreement. to transfer internet governance to the intergovernmental level. eg in the creation of TLDs for territories the independence of which is disputed. the private sector. one of these being the Governmental Advisory Committee (‘GAC’). This form of derivative governance has met harsh criticism. a procedure it has set up for itself and which has been criticized for only providing a limited level of judicial control.and political-related nature (Kube 848). Segura-Serrano 260). comprised of fifteen voting and six non-voting members (Art. as the relevant judicial bodies are either not fully independent. though. A commitment was given to ensure ‘the requisite legitimacy of its governance. with the full involvement of governments. a strong point was made at the WSIS. What remained was the creation of the Internet Governance Forum in 2006. VI (1) ICANN Bylaws). The core of the critique is the missing democratic legitimation of ICANN (→ Legitimacy). For example. XI (2) (1) (a) ICANN Bylaws). even if only indirectly. civil society and international organizations’ (at para.mpepil. The fact that the powers of ICANN have ultimately only been handed over from the DOC and can be revoked anytime is viewed as creating a high degree of dependence on US policies. which stated that the ‘international management of the Internet should be multilateral. ICANN’s system of governance would rather sustain the dominance of the strongest actors of the network. XV GAC Operating Principles).Max Planck Encyclopedia of Public International Law www. eg institutionalized at the → International Telecommunication Union (ITU) in order to remove any US influence and bring more legitimacy to internet governance. and regular users. none of the models for an internationalization of DNS administration that were discussed at the WISIS was implemented. is merely a forum for discussion. from both developed and developing countries’ (ibid para. the Board of Directors has apparently always adhered to the recommendations of the GAC (Dederer 384). such control can only be excercised before a US court. ICANN does show recognition of its unique position as an administrative body with quasi-public authority. currently counting 109 members. qualifying it as a State actor (Dederer 377–79. However. the GAC in its Operating Principles itself states that the ICANN Bylaws and Articles of Incorporation prevail over the GAC Operating Principles in case of a difference in interpretation (Art. Heidelberg and Oxford University Press 3 12         13       14       . however. by at least providing for such an internal review procedure of its decisions. Numerous other proposals for reform of internet governance have been brought forward. an argument has been made to treat the ‘core resources’ of the internet—those elements currently under management of ICANN —as a → common heritage of mankind (‘CHM’. Members are selected by various stakeholders from the internet community. or lack the power both to hand down binding decisions or grant compensation (Hartwig 596). Yet. without any powers of supervision or decision-making.

the DOC would regain its original position as administrator of the DNS. GAC Principles). the Affirmation of Commitments has still not solved the core problem of internet governance: the lack of its institutionalization as an international organization with a fully democratic legitimation.1. → States. In fact. After asserting jurisdiction on the basis of the effects principle.2. It has been similarily looked upon positively in the international community (see.com 15       A recent development has prompted scholars to speak of a change in internet governance however. eg. the court ordered Yahoo! to establish measures denying internet users located in France access to such objects via its auction portal. © 2013 Max Planck Institute for Comparative Public Law and International Law. ICANN itself interprets this as a declaration of its independence from control by any one entity. Such a solution seems favourable when bearing in mind that neither the most restrictive nor the most liberal legal system is called upon to trump the others. 2. The selling of the product may be illegal and punishable in State A. The most widely known case in this regard is La Ligue Contre Le Racisme et L’Antisemitisme v Yahoo!. which grants jurisdiction to a State which experiences the effects of an action on its territory (see also → Trail Smelter Arbitration). but not in State C. the interpretation of its scope and content varies considerably. the United States (violations of copyright law). national jurisprudence does show a trend to limit the effects principle in internet-related cases by requiring the element of a deliberate influence in the foreign State as a prerequisite for any establishment of a genuine link. Nevertheless. the dispute settlement systems concerning domain names likewise lie in the discretion of the relevant State. 11). Under the principle of subsidiarity. Controversy arises in regard to the application of the effects principle. As most internet services do not distinguish between sovereign territories. while providing for a greater inclusion of the internet community in ICANN. Sovereign Equality). International Internet Governance’). as was already the case with the Joint Project Agreement. Cases have been decided similarly in Germany (in relation to Nazi content hosted on Australian servers). Nevertheless. In doing so. This exemplifies the fact that. such as. ‘Yahoo Case’). Nevertheless. This cannot change as long as the authority of DNS administration is revocable and derived from a single State. This divergence between global networks and local values makes coherent regulation of content on the international level complex and is practically the reason for its non-existance (see generally Engel and Keller). on 30 September 2009. an action constituting a crime under French penal law. This includes delegation and re-delegation of the respective registry (para. ccTLD policy should be set locally in accordance with national law (para. Goldsmith and Wu 157. local values do differ strongly. Accountable. Traditional concepts of sovereignty have likewise led to the generally accepted principle that the ultimate public policy authority over the country code TLDs (‘ccTLDs’. concerning the hosting of an offer of Nazi memorabilia on Yahoo!’s auction portal. the State of the offender may claim jurisdiction through the nationality principle. the DOC can terminate the Affirmation of Commitments unilaterally (at para. 1.de.Max Planck Encyclopedia of Public International Law www. according to which a State may impose jurisdiction on actions on its territory. 4. (Tribunal de Grande Instance Paris [20 November 2000]. self-regulation of the internet community in relation to the legality of content is simply not taking place. a consumer of State A may easily buy a product from a vendor in State B. especially through cooperation between the States involved. 7. This reading is underpinned by ICANN’s adherence to the GAC Principles in spite of the legally non-binding nature of GAC decisions (Dederer 386). The calls of the 1990s for the establishment of a ‘cyberlaw’ or ‘lex informatica’ distinct from that applicable to ‘physical. However. Thus. The original Joint Project Agreement of 1998 (and its amended versions) had to be prolonged on a regular basis due to it being limited in time. such cases can only be resolved with the help of international law. This already arises out of the principle of sovereign equality of States (Schmahl 314. GAC Principles).1. 11) and thus not equipped with a sunset clause. Heidelberg and Oxford University Press 4 16         17       18       19       20       . the Affirmation of Commitments ‘is intended to be long-standing’ (at para. Inc. eg. the DOC finally affirmed that a ‘private coordinating process … is best able to flexibly meet the changing needs of the Internet and of Interner users’ (at para. Thus. the Joint Project Agreement in the form of its seventh amendment was superseded by the Affirmation of Commitments by the United States Department of Commerce and the Internet Corporation for Assigned Names and Numbers (‘Affirmation of Commitments’). elaborating on these cases: Schmahl 300–09). In cases of illegal content being disseminated. Sovereignty Issues Questions of → sovereignty and → jurisdiction of States are especially significant in internet-related case law. and the United Kingdom (pornographic content hosted abroad but accessible from the United Kingdom. rendering ICANN powerless. The same holds true for the territoriality principle. the press release ‘European Commission Welcomes US Move to More Independent. as stipulated in para. While the aforementioned decisions all base their judgments on grounds of the effects principle. International law requires a genuine link to exist between incident and State in order for the latter to practise jurisdiction. whose website and online shop are hosted on a server in State C. Furthermore. geographically-defined territories’ (Johnson and Post 1402) have proven premature.fr etc) belongs to the relevant government or public authority. while the contents of the internet are hosted on the global networks and are mostly accessible from anywhere.uk. GAC Principles and Guidelines for the Delegation and Administration of Country Code Top Level Domains (‘GAC Principles’). 4).mpepil. Herein.

b) run applications and use services of their choice. Right to. Many ccTLD registries have adopted their own policies though (see para 20 above). By far the largest number of cases negotiated under the UDRP are those concerning the transfer of a domain name. and several other non-country specific TLDs—the Uniform Domain Name Dispute Resolution Policy (‘UDRP’) was established by ICANN as an extrajudicial dispute resolution framework. to which every domain-name holder is subjected in the respective registration contract. thus providing for an indiscriminate handling of content. International Protection). however.000 cases have been filed at the WIPO Arbitration and Mediation Center alone. In 2009. making the UDRP a quite important and effective instrument. However. These four principles entitle the consumers to: a) access the lawful internet content of their choice.eu Top Level Domain and the Principles Governing Registration ([2004] OJ L162/40). as a reaction to reported incidents of ISPs blocking traffic from © 2013 Max Planck Institute for Comparative Public Law and International Law. Uniform Domain Name Dispute Settlement Dispute settlement regarding the registration of domain names differs for the relevant TLDs. Hereby. the decision of which ICANN will comply with also after the conclusion of a UDRP procedure (Art. proceedings can likewise be submitted to a regular court at anytime. 3 (b) UDRP). inter alia through the technique of deep packet inspection. and content providers. and c) which have been registered in bad faith and are still being used that way (Art 4 (a) UDRP). although many have done so. eg those of competitors or anyone utilizing an amount of bandwith deemed excessive. the absence of any official translations of the UDRP.mpepil. The UDRP is applicable to disputes concerning so-called ‘cybersquatting’. thus discriminating against certain applications. While this is mostly being done for economic considerations. Even the complete blocking of certain applications has been utilized by ISPs.org. incorporating both public authority through US supervision of ICANN and the involvement of the WIPO as a traditional international organization. as the relevant regulations have been passed by European Union legislation. together with its accompanying procedural rules (Art.. application and service providers. The UDRP system. However. and over 80 per cent of the cases have been decided in favour of the complainant. The adoption of the UDRP was based on a recommendation of the → World Intellectual Property Organization (WIPO).Max Planck Encyclopedia of Public International Law www. has been particularly criticized (see generally Hestermeyer). Registries of ccTLDs are not obliged to incorporate the UDRP. its validity will be determined by national contract law. at least in the cases of obvious cybersquatting. especially as regards national consumer protection laws. Since the reference to UDRP is part of the regular contract between registrar and registrant. Net Neutrality The recent debate surrounding net neutrality centres around the question of whether the right to property allows network carriers and internet service providers (‘ISPs’) to discriminate in their networks against certain applications and content. Heidelberg and Oxford University Press 5 22       23       24         25       26       . The US Federal Communications Commission (‘FCC’) in September 2005 released a Policy Statement establishing four principles of net neutrality in order to ‘encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet’. Since the adoption of the UDRP. subject to the needs of law enforcement. over 17. There is currently no international instrument dealing with these issues. However. 4. it is possible to prioritize between different applications. d) competition among network providers. several States have begun to address them. A router will by default forward data packages according to a first-come-first-served policy. the same could also be applied for political reasons (Pfister 182–90). The. the procedural deficiencies such as short time limits (eg 20 days for filing of a response).eu TLD is noteworthy in this regard. For the generic TLDs —ie. and both the absence of legal discovery and an appellate proceeding do not make it an instrument of first choice for more legally complex circumstances (Bettinger 1345–46). which has also been approved as one of the dispute resolution service providers by ICANN. the mere exceptional possibility of submitting a counterplea. regardless of a UDRP procedure (Art. 4 (k) UDRP). These requirements have to be fulfilled cumulatively. as can be seen in Commission Regulation (EC) No 874/2004 of 28 April 2004 Laying Down Public Policy Rules concerning the Implementation and Functions of the. c) connect their choice of legal devices that do not harm the network. the fairness of a shift of burden of proof in certain constellations. thus affecting the free flow of information and other communication rights of users (see also → Property. ie the registration of domain names which are a) identical or confusingly similar to a trademark or service mark in which the complainant has rights. the management is modelled on the UDRP and WIPO recommendations. b) in which the registrant has no rights or legitimate interests in.com.com   21       3. but also the question of whether the UDRP can be seen as a valid form of arbitration under national law at all. 1 UDRP). but also private self-regulation. which mentions these as international best practices. However. Whether or not national courts are bound by a decision reached in an UDRP procedure is a question of the relevant national procedural law. The validity of an inclusion of the UDRP into registration agreements has been questioned. has thus been qualified a hybrid system (Uerpmann-Wittzack 281) or even a sui generis form of international self-regulation posing as a quasi-administrative procedure (Bettinger 1109).

will prove a suitable instrument for balancing the competing interests. eg distriubtion of public radio or television broadcasts. Recently. this remains on a low level. However. on the other hand. In particular the right to impart information regardless of frontiers—as enshrined in all major human rights instruments except the → African Charter on Human and Peoples’ Rights (1981)—gains a new momentum in this regard (→ Information and Communication. and high bandwith. Likewise. that allow for a relatively wide discretion. however. Right to. or transmitted via. though. Operating within the internet mostly inherently involves revealing information about oneself. In the end it has to be observed that the discussion concerning net neutrality has just begun. Specific Legal Issues 1. 27       The European Commission. International Protection). communication. but contain → ordre public (public policy) exceptions.mpepil. 28           29       30       © 2013 Max Planck Institute for Comparative Public Law and International Law. Also. C. contribute to a harmonization of standards. will only rise in the future. International Protection). the international community would be well advised to introduce a data protection regime stipulating clear limits to further processing and dissemination also of information provided voluntarily. While this can be read as a disencouragement of any attempts to block certain applications. It might be that the introduction of ‘must carry clauses’. the different European regulatory model which gives national regulatory authorities the powers to deal with discrimination via telecommunications and antitrust laws is regarded as sufficient (Holznagel 98). The wide discretion afforded to States through the relevant international instruments to restrict the right to privacy has led to a comparatively high degree of variation in data protection laws. the trading of which has already generated new market opportunities. comparable to those already existing for certain general interest objectives. the European Commission in its Declaration on Net Neutrality has attached ‘high importance to preserving the open and neutral character of the Internet. But the constantly needed expansion of the physcial internet infrastructure is a costly undertaking. 8 (4) (g) to Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a Common Regulatory Framework for Electronic Communications Networks and Services ([2002] OJ L108/33) ‘promoting the ability of end-users to access and distribute information or run applications and services of their choice’. While the most widely known example in this regard is China. is more hesitant in this regard. These requirements. such as e-mail. making prioritization and scaling an obvious business model. which—accumulated—can be used for generating user profiles. the FCC proposed two additional principles (on non-discrimination of content and transparency of network management) to further strengthen net neutrality. Connected thereto is the protection of transboundary data flow (→ Data. security. the internet. many Western countries also use blocking techniques to ban access to websites deemed to contain illegal content. such as a guaranteed quality of service. and information as they do in any other medium.Max Planck Encyclopedia of Public International Law www. Freedom of. The right to privacy is likewise of special concern in the field of information networks (→ Privacy. Bearing in mind the remarkable differences various legal traditions award to the scope of freedom of expression. Human Rights During the last two decades. as inter alia stipulated in a 2005 declaration entitled ‘The Protection of Personal Data and Privacy in a Globalised World: A Universal Right Respecting Diversities’. taking full account of the will of the co-legislators now to enshrine net neutrality as a policy objective and regulatory principle to be promoted by national regulatory authorities’. Heidelberg and Oxford University Press 6 . It encompasses the protection from State access to confidential data available on. while several States have abstained from any legislation. Whether outright censorship or extensive internet filtering techniques may be justified hereby is questionable. the internet has developed into the most important medium of communication. The problems are rooted in the fact that the internet was originally not designed in a way to provide the services some applications heavily rely upon today. Regional instruments such as several European Union directives but also so-called safe harbour agreements. → Opinion and Expression. Although it is the users themselves who in many cases provide for an alarmingly permissive exposure of their personal information. Transboundary Flow. However. Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 ([2009] OJ L337/37) added Art. inter alia by obliging the carriers to transparency in regard to their prioritization policies. Today the threat to the privacy of individuals’ personal information often seems to come from commercial actors. or minimum service quality levels. these exceptions are necessary. Harmonization in this field is to be welcomed. 34 Constitution of the International Telecommunication Union. a concept which is also enshrined in Art. International Protection). Internet users enjoy the same freedoms of expression. which let foreign companies adhere to the stricter privacy standards of a third country on a voluntary basis. International Protection.com peer-to-peer networks. prompting data and privacy protection commissioners of several countries to call for the conclusion of an international convention on data protection. these rights are not unlimited. it lacks the legally binding effect to reach such goal. Freedom of. It views product differentiation as generally beneficial for the market as long as users are able to choose freely therefrom.

While some passive protection mechanisms of a technical nature do exist. On an international level. a measure the Appellate Body saw as justified if equally applicable to nationals. Another field that has been especially challenged through the rise of the internet is the protection of intellectual property as part of the right to property (→ Intellectual Property. such as geolocation. For direct e-commerce. and music. the provisions of which have © 2013 Max Planck Institute for Comparative Public Law and International Law. the decision whether to create such a right for rights holders against. eg. Rather. This qualification is of importance as regards the determination of the applicable regime. 8 WIPO Copyright Treaty provide for certain minimum standards for rights holders. eg access to databases or consulting. as it helps trading in products and services in remote areas.Max Planck Encyclopedia of Public International Law www. thus making the production of information technology products cheaper for the affected States (Lehmann 410). Nevertheless. Principle). The example shows that the technological neutrality of the GATS provides it with a normative control function also over internet-based services (Tietje and Nowrot 355). which in combination with the principle of national treatment enshrined in both treaties demonstrates WIPO’s attention to the specific problems posed by the development of the internet from the early stages on (Uerpmann-Wittzack 273. These are mainly the Model Law on Electronic Commerce. because effective control and enforcement would prove extremely difficult if not impossible from a technical standpoint. → National Treatment. and receipt of such messages. the WIPO in Arts 10–14 WIPO Performances and Phonograms Treaty and Art. and electronic books (direct e-commerce)—and to the introduction of the use of electronic communications for the conclusion of contracts regarding the transaction of regular physical goods (indirect e-commerce). is left to the discretion of the Member States. Indirect e-commerce does not pose any new questions. and encryption (see also → coded communications [encryption]). The same holds true in the → World Trade Organization (WTO) system. similar to that utilized by law enforcement authorities (see paras 35–36 below). The ECJ in Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU ([2008] ECR I-271) decided that the relevant directives do not include an ‘obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings’ (at para. this does not include any obligation. ISPs. Right to. place of dispatch. such property rights remain difficult to safeguard. such as music. It is probable that these will also not be imposed in the future. as it requires an advanced communications infrastructure and end devices for the users. Although Art. 10). some attempts have been made to provide for a harmonization.mpepil. controversy still exists over some questions. Propositions to help bridge the divide are inter alia seen in renegotiations of the TRIPS. In particular the EU and the US have opposing views in this regard. International Protection). an instrument of special concern to rights holders has proven to be a claim to disclosure against ISPs. nor the ‘right to development’. videos. as the transport of goods in this case occurs in the traditional tangible manner. 2. digital rights management. While it is clear that the internet is also a facilitator for the exercise of certain cultural rights. eg the qualification of digital content as a good or service. provide for an individual or collective right to access (→ Development. International Protection). although it lacked a legally binding quality. While most States seem to evaluate the current WTO system as sufficient to address these new forms of trade.and software for developing countries similar to those that already exist in the field of public health. films. Neither the freedom of information. the WTO Member States in the Declaration on Global Electronic Commerce have (temporarily) agreed not to impose customs duties on electronic transmissions. This could allow for exceptions of the protective rules on copyrights and patents for information technology hard. However. In relation to customs the current regulation is clear.com 31       Access to the internet is still unevenly distributed between developed and developing countries but also within societies. XIV (a) GATS). This was the case in United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services—Report of the Appellate Body concerning the supply of gambling services via a foreign website to persons in the USA. Another question in this regard is whether States may restrict internet services originating from abroad. subject to a → proportionality test regarding the infringements’ seriousness while duly taking account of the privacy implications concerned. a ‘right to internet access’ does not exist. if considered a right at all. 71). Furthermore. ie either the more market liberal → General Agreement on Tariffs and Trade (1947 and 1994) or the comparatively more restrictive → General Agreement on Trade in Services (1994). there is currently no convention in force which specifically deals with the conclusion of contracts via electronic communications such as the internet. Electronic Commerce The internet has provided for the spread of trade in digital content products—mostly software and multimedia. The internet provides for a plethora of possibilities for illegal dissemination of copyright-protected material. if such is ‘necessary to protect public morals or to maintain public order’ (Art. mainly motivated by economic and cultural interests (see generally WunschVincent 48–80). Heidelberg and Oxford University Press 7 32         33       34       . especially concerning the recognition of electronic messages and signatures and uniform rules relating to time. In this regard. 47 → Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) does include a provision on the ‘right of information’. elaborated by the → United Nations Commission on International Trade Law (UNCITRAL). services are available on the internet. especially as regards software. A political commitment to turn this so-called ‘digital divide’ into a ‘digital opportunity for all’ was made in the WSIS Declaration of Principles (at para.

signed by 46 and ratified by 30 States (as of July 2010). ISPs are to be obliged to store such data in order to provide the relevant authorities with the possibility of access.   35       36       3. namely criminal offences undertaken via the internet. including provisions on the information to be provided by the service provider and how orders are placed (Arts 9–11). and availability of computer data and systems. All these instruments. The significance and ubiquity of the © 2013 Max Planck Institute for Comparative Public Law and International Law. provides for an obligation on Member States to allow the conclusion of contracts by electronic means on a non-discriminatory basis. While the Data Retention Directive has been highly controversial from the beginning. entered into force 1 January 1988] 1489 UNTS 3. ‘CISG’). The same demands have likewise led to the introduction of the highly controversial Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the Retention of Data Generated or Processed in Connection with the Provision of Publicly Available Electronic Communications Services or of Public Communications Networks and Amending Directive 2002/58/EC ([2006] OJ L105/54. European Union Member States are to harmonize their relevant obligations for ISPs ‘with respect to the retention of certain data which are generated or processed by them. the evidence relating to such offences may be transmitted via the internet and stored on systems accessible therewith. It. Basically.com been implemented by several States. has also been interpreted by the CISG Advisory Council in its Opinion No 1: Electronic Communications under CISG of 15 August 2003 to enable parties to do so. the UN Convention on Contracts for the International Sale of Goods ([concluded 11 April 1980. Furthermore. Despite a—heavily criticized—ruling of the European Court of Justice in Case C–301/06 Ireland v European Parliament and Council of the European Union ([2009] ECR I-593) affirming the directive’s formal legality (confined solely to areas of competence of the European Union). thus providing new measures for crime prevention and criminal prosecution authorites with new methods. computer-related forgery. a harmonization of criminal laws in this field was soon called for. requirements that could inter alia be met by the introduction of electronic signatures. child pornography. which has led to a much higher level of harmonization. The transboundary nature of many of these offences leads to the problem of their criminal prosecution. 12). The fast-moving nature of the internet poses special problems for law enforcement authorities. which has not yet entered into force. in order to ensure that the data are available for the purpose of the investigation. inter alia. On an international level. integrity. the discussions concerning the Data Retention Directive’s legality are thus prone to continue (see generally Simitis). Due to the rule of double criminality for → extradition proceedings and the varying penalization of cybercrimes. may be taken into consideration as sources of → customary international law for international electronic commerce (Martin 501). however.Max Planck Encyclopedia of Public International Law www. The internet as a medium for such a variety of different activities must rather be seen as a cross-sectional matter. Assessment This overview has shown that a singular inclusive framework for the internet that might qualify as an ‘international law of the internet’ does not exist. infringements of copy. inter alia. engaging nearly all fields of international and national law. the liability of service providers for the content of information transmitted on a communications network is regulated (Art. ‘Data Retention Directive’). and the UN Convention on the Use of Electronic Communications in International Contracts. addressed by the establishment of a 24/7 network in Art. this gave rise to the → Council of Europe (COE) Convention on Cybercrime of 2001. in the Internal Market ([2000] OJ L178/1). in Particular Electronic Commerce. It nevertheless remains a rather fragmented area. 35 Convention on Cybercrime. Heidelberg and Oxford University Press 8 37         38   . It obliges the contracting parties to penalize offences against the confidentiality. These concerns are. data often stored only temporarily for billing reasons. On the other hand.and related rights.mpepil. some of the implementation laws have recently even been declared null and void by the relevant constitutional courts. An authoritative collection of evidence is linked to the authorities’ access to user data of ISPs. an exception being the European framework introduced by Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on Certain Legal Aspects of Information Society Services. The harmonization of such has been addressed in the UNCITRAL Model Law on Electronic Signatures and the Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community Framework for Electronic Signatures ([2000] OJ L13/12). and fraud. D. together with internet trade usage. providing for immediate assistance in the collection of evidence in electronic form. 1 Data Retention Directive). On the other hand. moreover some States have not yet implemented the directive due to concerns regarding its constitutionality. Legally binding interaction on the internet needs secure communication and authentication of the relevant actors. detection and prosecution of serious crime’ (Art. On the one hand. Cybercrime The internet has made possible access to data stored on external computer systems but also the interception of data in transmission. Apart therefrom many States on a national level amended their penal codes in order to include cybercrime (see also → Mutual Legal Assistance in Criminal Matters). which due to its age does not explicitly include the possibility of concluding contracts electronically. this opens a new field for cybercrime. According to this Directive.

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