The debate on Internet governance, and freedom of expression on-line in particular, has largely focused on the place of Internet technology itself in the various regulatory framework and principles. The infrastructure of its hardware, the design of its software and a range of other elements altogether form the cyberspace or the digital world within which human beings connect, inform, communicate, sell and buy, and also harm each other. All technological components (hardware, software, nodes, etc.) are potentially matters for regulation, which greatly impacts on the governance of the Internet, and the protection of human rights and freedom of expression on-line. It is easy to see why for many years technology was seen and construed as determining Internet governance and regulation, on-line values and norms, particularly in view of the relative weaknesses of other actors, states included, in the earlier days of Internet governance. This state of affairs has progressively, and then rapidly, evolved with every few years bringing different actors, and shifting divisions of power and responsibilities amongst them. The original model of a cyber-world governed by the technologist or engineer and (some) users has morphed into an incredibly complex array of actors whose interaction and relative power with regard to Internet governance are the objects of much debate amongst academics, policy makers and practitioners alike.
This paper introduces an actor, which has been neglected so far by those analyzing the forces shaping the Internet world and founding its normative system(s), namely the Tribunals – national or regional judges and courts. It is part of a larger research into understanding the formation of global norms on freedom of expression and information (FoE/I) in an era defined and dominated by information, asking whether we are witnessing the emergence of an inter-meshed legal global system for freedom of expression and information, guided by common norms.
This discussion paper argues that judicial ruling over matters of on-line freedom and Internet governance are becoming highly influential – not just as interpreters of the law(s) (the tribunals traditional function) but as shapers or transformers of Internet norms and values. This evolution has become particularly clear over the last year or two, with 2014 constituting a watershed, demonstrating the increasing confidence of judges and Tribunals in challenging engineers, users, corporations, or indeed governments (at least in countries where the independence of the Judiciary is respected) and possibly establishing different norms as far as the cyberspace is concerned.
Please download the PDF to read the full document.