How To Make Laws For The Internet


Depending who you ask, the internet is either the single greatest technological invention of the modern era, that has transformed — and will continue to transform — all aspects of our day-to-day life, or it is a frightening and unprecedented intrusion into our private selves. Of course, this is false dichotomy. The internet is not one or the other. It is both. And that presents all sorts of challenges from a regulatory perspective.

Any attempt to regulate the internet is fraught with myriad challenges, from the international and therefore multi-jurisdictional nature of the World Wide Web, to the inevitable reality that the law will always lag behind the technology, to the conundrum that lies at the heart of any attempt to regulate the internet: so much of the power and possibility of the internet lies in its openness and any regulation will necessarily impinge on this freedom.

None of this is to say that the internet should be a lawless rabble from any government intervention. It shouldn’t. Rather, it is say that regulation needs to be thoughtfully implemented and should not be a knee jerk reaction to the latest web scandal that shocks legislators and the public. Legislation should also only be introduced where self-regulation and "netiquette" have failed.

In a piece for The Guardian this week, Julian Glover made this very point by drawing an analogy with the regulation of motorways in the UK. When the M6 opened in 1958 there weren’t any speed limits and drivers could drive as they liked, at any speed they liked. This freedom, however, was short lived: "This wonderful pretence of liberty lasted for just as long as it took motorways to become important. They could either be quirky and unregulated or they could be essential, but not both."

All over the world we are beginning to see society and legislators reach a point where the quirky and unregulated nature of the internet needs to be limited by some form of government intervention.

In some countries, such as Australia, hysteria and fearmongering from some in the society are prompting the government to take the unnecessarily draconian and ultimately futile course of introducing mandatory ISP-level internet filtering. Fortunately, that does not appear to be the preferred course of most democratic nations.

One reason why filtering is such a poor regulatory option is that it fundamentally fails to address what is probably the major concern most people have the internet: privacy.

Privacy concerns generally fall into two categories. The first relates to embarrassing photos and videos that have been posted to the web. While some people will be understandably upset about these sorts of things being posted online, there is little that can or should be done from a regulatory perspective in relation to these matters. It seems to me that over time the proliferation of these sorts of videos and photos will mean that people will be judged less and less by embarrassing antics captured forever on a mobile phone, and that in the meantime, people just need to be careful about what they — and their friends — post online.

The second is privacy concerns pertaining to data protection. This is by far the more pernicious concern – and one that does justify closer regulatory scrutiny. Web companies like Google, Facebook, Microsoft, and Yahoo are able to collect an extraordinary amount of information about their users’ online habits, which they can use to attract advertisers.

In the European Union at the moment regulators are considering introducing stronger privacy rules to give internet users more control over how social networking websites and search engines use their personal information. Earlier this month the European Commission set out a strategy (pdf) on how to protect individuals’ data in all policy areas, including law enforcement, while reducing red tape for business and guaranteeing the free circulation of data within the EU. This policy review will be used by the Commission with the results of a public consultation (pdf) to revise the EU’s 1995 Data Protection Directive.

The EU’s 1995 Data Protection Directive set a new benchmark internationally for protecting private information and it will be interesting to see how the EU responds to the challenges presented by the social web, where people are sharing more and more information than ever before.

Hopefully the EU will not overstate its mandate and will remember that any regulation needs to be balanced against the power of an open and free web. However, just as it is naïve to think that any law with respect to the internet will ever be completely address the problem, it is equally naïve to think that the internet cannot and should not be regulated at all.

Privacy is likely to be one of many challenges the international community faces with respect to the internet. If the EU can get the balance right, it could be a model for future regulation across a wide range of issues all over the world.

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Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.