We exercise a significant part of our human rights today using the Internet and the wider digital environment. But our human rights can also be breached using these very same means. There is general agreement that human rights should be enjoyed online as they are offline. In practice, however, the actors who can ensure that we enjoy human rights are not exactly the same in the two environments. In particular, the disproportionate influence and control that certain states and certain private companies exercise on the Internet and its physical infrastructure at the global level, are two essential elements of this difference.
This issue paper looks at how the rule of law can be maintained in an environment characterised by these specific governance issues, focusing on some policy areas of particular human rights relevance: freedom of expression, data protection and privacy, cybercrime and national security. It suggests possible ways forward to ensure that we can trust the rule of law to apply to our online activities.
ABBREVIATIONS
EXECUTIVE SUMMARY
A new environment for human activities
The nature of the digital environment
The rule of law in the digital environment
The issues, and the balance between them
THE COMMISSIONER’S RECOMMENDATIONS
I. On the universality of human rights, and their equal application online and offline
II. On data protection
III. On Cybercrime
IV. On jurisdiction
V. On human rights and private entities
VI. On blocking and filtering
VII. On national security activities
INTRODUCTION
1. A NEW ENVIRONMENT FOR HUMAN ACTIVITIES
1.1. Political, social, cultural and human rights activities
1.2. Cybercrime, cybersecurity, terrorism and national security
2. THE NATURE OF THE DIGITAL ENVIRONMENT
2.1. Dangerous data
2.2. Global and private, but not in the sky
2.3. Who is in control?
3. THE RULE OF LAW IN THE DIGITAL ENVIRONMENT
3.1. The rule of law
3.2. The basic “rule of law” tests developed by the European Court of Human Rights
3.3. “Everyone”, without discrimination
3.4. “Within [a contracting state’s] [territory and] jurisdiction”
3.5. Human rights and private entities
3.6. Exercise of extraterritorial jurisdiction by states
4. THE ISSUES, AND THE BALANCE BETWEEN THEM
4.1. The issues
4.2. Freedom of expression
4.3. Privatised law enforcement
4.4. Data protection
4.5. Cybercrime
4.6. National security
4.7. The delicate (and unresolved) balances
We exercise a significant part of our human rights today using the Internet and the wider digital environment. But our human rights can also be breached using these very same means. There is general agreement that human rights should be enjoyed online as they are offline. In practice, however, the actors who can ensure that we enjoy human rights are not exactly the same in the two environments. In particular, the disproportionate influence and control that certain states and certain private companies exercise on the Internet and its physical infrastructure at the global level, are two essential elements of this difference.
This issue paper looks at how the rule of law can be maintained in an environment characterised by these specific governance issues, focusing on some policy areas of particular human rights relevance: freedom of expression, data protection and privacy, cybercrime and national security. It suggests possible ways forward to ensure that we can trust the rule of law to apply to our online activities.
