View source for Under which jurisdiction(s) are European citizens online? – PL 04 2013

21 June 2013 | 9:30-11.00 <br />
[[Programme Overview 2013|'''Programme Overview 2013''']]<br /><br />

== People == 
'''Key Participants'''
*Linda Corugedo Steneberg, European Commission
*Maria da Graça Carvalho, Member of the European Parliament
*Jan Kleijssen, Council of Europe
*Wolfgang Kleinwächter, University of Aarhus
*Erika Mann, Facebook

'''Moderator'''
*Bertrand de la Chapelle, Internet & Jurisdiction Project

'''Reporter'''
*Paul Fehlinger, Internet & Jurisdiction Project

== Messages == 
*Ensuring that there are appropriate frameworks which are needed to ensure fair process and interoperability between heterogeneous legal orders.
*Considering that procedural interfaces between states, platforms or operators and users could diffuse the tension and creeping fragmentation of cross-border online spaces into realigned national cyberspaces to comply with geographically defined national jurisdictions.

== Session report == 
'''ABOUT:''' When online, European citizens can be subject to multiple normative orders according to their place of residence, the services they use, as well as the location of the servers and DNS operators involved. How to address the resulting tensions and enable the coexistence of different normative orders in shared cross-border online spaces? 

'''TAKE-AWAY: NEED FOR INTEROPERABILITY FRAMEWORKS'''

The session highlighted the fact that the transnational nature of online interactions necessitates appropriate frameworks to ensure fair process and interoperability between heterogeneous legal orders. In the absence of specific international treaties or a universal harmonization of Internet related laws, procedural interfaces between states, platforms or operators, and users could diffuse the tension and creeping fragmentation of cross-border online spaces into realigned national cyberspaces to comply with geographically defined national jurisdictions. 

'''DISCUSSION HIGHLIGHTS'''

*'''PATCHWORK:''' As states increasingly strive to regulate the online interactions their citizens participate in or are affected of, a multitude of potentially incompatible laws and corresponding implementation procedures are proliferating. 
*'''SOVEREIGNTY:''' Given the particular geography of cyberspace with the dispersed physical locations of platforms, operators and servers, the exercise of national sovereignty can have transboundary effects on other states and their citizens. 
*'''LEGAL UNCERTAINTY:''' Both companies and users face increasingly major legal uncertainties regarding applicable laws and jurisdictions to which their online actions are subject to. 
*'''ENFORCEABILITY:''' States struggle to enforce their national laws in cyberspace as existing frameworks for inter-state cooperation face their limits to scale up to the transnational nature of the Internet. 
*'''PRIVACY:''' Without frameworks that ensure the interoperability between different privacy orders transnational data flows and the development of decentralized cloud computing capacities could be hampered. How to determine the rules for the protection of personal data if multiple jurisdictions are simultaneously involved in online interactions? 
*'''HATE SPEECH:''' How to deal with cross-border hate speech in online spaces? 
*'''COEXISTENCE:''' How can citizens who are subject to both their national laws and the Terms of Service of cross-border online platforms they use, coexist peacefully in cyberspace? How to prevent jurisdictional arms races and tension resulting in overlapping normative orders? 
*'''INTEROPERABILITY:''' How to guarantee the interoperability of divergent laws and procedures of nation states and rules stipulated by cross-border online platforms? 
*'''FAIR PROCESS:''' How to ensure that fair process is maintained in the interactions between states, platforms or operators, and users?
*'''REDRESS:''' The current legal patchwork renders redress for users often highly complex. How to ensure that users can better interface with states, platforms and operators to protect their rights? 
*'''INSTRUMENTS:''' What are appropriate governance instruments for fair process frameworks for procedural interfaces in a multistakeholder setting? 

== Transcript ==
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''This text is being provided in a rough draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.''



>> BERTRAND de La CHAPELLE: Okay. Good morning. I sincerely apologize for the delay, but we have been waiting for a bigger audience in the room. It’s not working? Oh, so I will repeat. I’m sorry for the delay. We have been expecting more participants to come into the room, but we have to start. As you know, now we have a keynote speech. But before the keynote speech I would ask Linda Steneberg from the representation of the European Commission to do a short introduction, because we have a five-minute video. But she is the right person to do the presentation. 

>> LINDA STENEBERG: Good morning ladies and gentlemen. Good morning fellow Internauts and fellow people in the room. I’m here to present a five-minute video organised by the European Commission. It represents four Portuguese youngsters and they are expressing 12 thoughts on the digital agenda as a subject and also on the Internet group as a subject. 12 thoughts, 12 different statements that sure represent that we are united on diversity and united on the digital agenda. So we will no longer delay. Let’s hear the video. 

(Video)

(Technical difficulties)

I would like to tell you what Nellie said. As you know, European leaders in March called upon the Commission to come forward with concrete proposals for two single telecom markets to help Europe return to growth. Connectivity is the raw material for digital economy, and unfortunately in Europe, contrary to what happens in the US or Asia, our telecom market which provides such connectivity remains fragmented, lacks dynamis and skill. The importance of having one single market goes beyond the telecom sector as such. What is a mistake is – we should have one 

(Technical difficulties)

To device manufacturers of the car industry and of course citizens. 

So we are actually now working on a set of ambitious legacy proposals to create such a true single telecom market. This would allow for operators to allow digital services across the EU and allow citizens and businesses to enjoy services from anywhere in Europe, wherever they are, or like Nellie put it yesterday, I will safeguard Net Neutrality for every European everywhere. 

The idea is to tackle one by one the bottlenecks that currently stand in the way of a single market, and we all know this to be true, by the way. As a first step, we should have a European passport, valid everywhere in Europe, which would enable every European eCommunication providers to be authorized in their home Member States and provide services across the EU on the basis of a consistent set of rules. 

As the second step, we must better coordinate at the EU level the conditions and timing of spectrum assignments, and create better conditions for the offerings of pan-European access services and interconnection. 

And we should not make the single market – we could not make the single market a reality without creating a single consumer space in Europe, enabling citizens and businesses to profit from the best offices in Europe, independent of where they are, open Internet, roaming, secure and resilient networks are important elements here. And the idea is for this package to be adopted by the Commission at the latest in the beginning of September, and it should be signed off by the heads of state and Government in the European Council in October. 

We had a stakeholders event in Brussels on the 17th, so that was this Monday, in order to present our ideas. But just to say that the proposal is not finalized yet, so therefore I cannot give you much more details than now. 

Also, Nellie talked about the grand coalition for digital jobs, which is one of the other big projects we have. There are many ICT vacancies, unfilled as you know. And we estimate now up to 900,000 vacancies by 2015. And as Nellie put it, and half of those jobs should be for girls and women. So that is important to keep in mind. 

Since the launch conference of the grand coalition, which took place in the 4th and 5th of May, a number of stakeholders have made concrete pledges to the grand coalition, such as SUP, Christo, the Europe School Net, the Council of European Infomatics Societies, Microsoft, Oracle, Fast Track, IT and some more. So now we need to bring more stakeholders onboard. 

And since the conference we have received many new pledges. And they were presented actually in Dublin. Many of these actions will be on a national scale to accommodate them. It would be useful to set up a national grand coalition that will encompass all the relevant stakeholders aiming to make a difference, if not similar words already exist. 

I’m going back now to the events in Dublin. After having given you this flavor of what Nellie said, she said much more by the way, but just to give you some of the main messages. 

And Nellie didn’t only meet with young advisers, but also the digital champions. All except for two of the now soon 28 member states in a few days have a champion, and these are driving forces for encouraging digitalization, promoting entrepreneurship – by the way, a lot of them are entrepreneurs by themselves – modernizing education. And education came out as a very, very strong theme among the digital champions, but also among the young advisers, and also in the session. But we got the message very, very clearly that there should be one of the priorities going forward. 

And also getting more girls and women online and into coding is another of the priorities for some of the digital champions. 

And Nellie has this group of advisers to give her straight advice. And by that I mean really unfiltered, uncensured, straight-off advice, that a commissioner perhaps not always gets, let’s face it, the way things work. 

So this has proved to be very, very useful. And we can actually take great advantage from the knowledge that they are bringing to us. 

So the Digital Assembly drove home the richness in Europe. The main ideas that thrive in all of our countries, and the fact that we are at a crossroads. And all of this is a rather worn metaphor, I’m aware of that, it is actually true. Because if we do not embrace our digital future, and that goes for both sexes, by the way, and take control of it, the initiative, the growth and the innovation risks happening somewhere else. 

And with those words, I thank you very much for your attention. 

Thank you.

(Applause)

>> BERTRAND de La CHAPELLE: Okay. So, are we – just continue? Excellent. 

So my name is Bertrand de La Chapelle. I’m the happy moderator of the plenary 4. And I would like to invite on the stage the different participants that I see. Wolfgang Kleinwachter, Linda Steneberg, which has spoke, Jan Kleijssen, Maria da Graca Carvalho, and Erika Mann. 

So, generally speaking, the title of this session is – please, take whatever seats you want to take. Yes. I’ll sit here. You are close to the water I see. That’s strategic. 

Okay. So this will do for the introductions. You have the affiliations of the different participants on the brochure and more detailed bios on the site. 

The title of this session is under which jurisdictions, plural, are European citizens online? The whole title is contained in one letter. This letter is the “S” at the end of “jurisdictions.” 

The natural tendency that we have is to consider under the traditional Westphalian system, you live in one country, you are basically under the jurisdiction of that country. As a matter of fact, then, we will explore this maybe a bit later with Jan. 

When we talk about jurisdiction, we talk basically about two things. One is the type of rules that apply. And, second, the type of recourse that you have where basically you can file a lawsuit or get redress for a problem. 

And so the natural tendency is to think that you are in one country and only subjected to your national law. You are only subjected to other laws when you get to another country. With the Internet and digital environment, things changed. Because we interact much more with people in other countries. And as we will try to explore, you are actually submitted to different jurisdictions, even when you’re in your office or in your home using the Internet. 

What I would like to try to do is to split this discussion basically in two parts. The first part is more about painting the picture, like big brush strokes, to understand what the reality is and the various dimensions is what I like to call painting the elephant. You know, like the five blind men and the elephant. Everybody is painting a bit of the picture. 

And the second part will be more devoted to look at how to move forward, because we’re in an environment where the management of the overlaps between those different normative orders is a huge challenge.

So maybe I would like to start with a sort of provocative question that we began exploring last year. And, Wolfgang, when we talk about the geography of cyberspace and how the different political borders happen, how does cyberspace map in terms of jurisdiction with the classical boards? Does it map or does it not map? 

>> WOLFGANG KLEINWACHTER: We had all kinds of discussion 15 years ago, when the terminology “cyberspace” emerged. How you can compare it to other space, we have the air space, we have the outer space, it’s also borderless. In the air space you have a certain border, because you know the air space, you know, it’s part of your territory until a certain height, you know, I think it’s 10 or 12 kilometers. Now the new Google balloons are beyond the air space. That’s an interesting discussion years ago, under which jurisdictions the Google balloons will fall. If it’s outer space, then it falls under a different legal regime than the air space. And probably this will trigger the new debate: Where is the frontier between outer space and air space? But outer space was seen as a good example, as a starting point for defining who is in the cyberspace, because it’s borderless and it can be used by neighbors. 

The problem with outer space was that only a very limited number of subjects, Governments, or large corporations could use the outer space for activities. The cyberspace is open for everybody, and in particular for individuals which had no chance to use the outer space for certain activities. 

>> BERTRAND de La CHAPELLE: Sorry to interrupt you. But is it a single cyberspace or is it a collection of cyberspaces? 

>> WOLFGANG KLEINWACHTER: I think this is what we have seen in the beginning. It was seen as a separate space from the real world. So we had the real world and the virtual world. But now we see that this goes together. And my answer is that we will move into a very complex situation where some activities are seen as, let’s say, related to the formal real world. And other activities are related to the former virtual world and you have to find a cooperation between the two things. And probably we come back a bit later to the question, what issues are – need national regulation and what issues need global regulation? So that the principle of subsidiarty will come back in this discussion very soon, so that you have a layered system if it comes to the regulation, that everything can be done by just one single legal act or something like that. The fact is it can’t be done by one single structure. 

Just as a set of examples, and maybe I’ll turn to Erika now, if you are a stench man, buying a domain name in .DE, which is the top country level domain in Germany, which you can do, aren’t you in part under the jurisdiction of Germany regarding what you’re doing with this domain name? And I know that Denik is in the room, so if people in the room have comments or contributions to make, don’t hesitate. 

You can take another example for two reasons, because you are here. You are on the board of ICANN. Disclosure, I am, too. 

And the second thing is that you’re working for Facebook. 

So take the example of a country code and the example of Facebook, where Norwegians are basically under the responsibility of data protection authorities of Ireland, because Facebook serves people from Ireland, can you highlight what it means in terms of jurisdiction?

>> ERIKA MANN: When you look back into history, I’ll never forget the time in ’93 when the Electronic Frontier Foundation, I don’t know if you’ll remember this, when he said this space, the cyberspace, the cyberlaw is for everybody. And it shall not be fragmented. It’s a different space than what you experience in reality. 

We have gone a long way from then. We recognize there is a different space and we try to understand and capture it, what it is which unites us all. But nonetheless, the national laws apply. It’s not a lawless room, the Internet. 

(Technical difficulties)

You’re living in one country and then when you want to handle discussion or problems with Facebook or another platform, somebody says no, actually, you’re under the responsibility of another authority. Isn’t that strange?

>> No. It’s not strange. That’s why we built the European Union. It was built, that’s what we talk about, a single digital market. You can’t have it both ways. You can’t say that we want it or the digital market or the European market or whatever area you talk about, and then on the other side you say but no, suddenly I don’t like it. Don’t forget, it’s different in the area of data protection. In that area, we have national data protection authorities which have a major role to play and continue to play, even when new legislation comes into play. 

So in areas where, you know, the national dominance will continue to some degree, with certain interpretations, in certain areas, there will be a kind of – it will have to be a kind of mutual understanding between, you know, what comes from Europe and how much space the national authorities will have to play.

(Technical difficulties)

>> I think what is illegal in the day-to-day life should also be illegal online. So, that is the first issue. It shouldn’t be a separate universe, I don’t really think so. 

But the special character of course poses challenges. By the way, it’s also lawyers’ paradise, because now the providers can be hauled before the courts all over the world. And this is of course an issue. 

So I think we need firstly to have discussions Internationally about legislation. 

Secondly, we also need companies to step up, perhaps, their corporate responsibility on these issues. I think that will be necessary. 

Also, of course, consumers must also read up on things, to be aware. We have to expect from normal people also to be a bit more knowledgeable. So there are different parts that need to come together for this to work. 

>> BERTRAND de La CHAPELLE: The challenge of being knowledgeable, there was discussion yesterday mentioned of the terms of service and the complexities of terms of service, isn’t there attention at the moment between, on the one hand the complexity of the terms of service for users, and on the other hand the complexity of the responsibility of the platforms to have terms of service that comply with the different legal norms of a large number of countries. 

Mrs. Maria da Graca Carvalho, as you are a member of the European Parliament, now you’ve been a Minister, how does the angle of the establishment of norms across border for those platforms and for cyberspace in general, how do you see it as a parliamentarian and as a minister, how to handle this tension? How to manage the difficulty of finding norms for cross-border activities? 

>> MARIA da GRACA CARVALHO: Thank you very much. Thank you very much for the invitation to be also in this debate. 

I think it’s very important that there are clear rules for the users, for the consumers, and also for the companies, the SMEs. Due to the complexity and the interlink, all, all the world is – all the countries in the world are involved, you can see that an SME somewhere can be sued legally in a very distant country, a country with a completely different law system from what they are used to. So it’s very important to establish the principles. 

Until now, we have different principles, the country of origin, the country of destination, the new regulation that we have that we have now talked is on discussion in the Parliament, my Committee has already proved an opinion. 

But the main Committee, the Liberty Committee, the Labour Committee has not yet voted legislation. It will be probably after the regulation. It will be after the summer. It goes to a more principle of the country of destination. That is in a certain way a complex principle. But we are talking about the European environment, and we have to have clear rules, also, with all the third countries. And some countries that are more difficult relations, Iran, other countries like that. So, it’s very important that we have a clear framework from the International point of view. 

The example that I think that is more – that we – this area could learn a lot of experience, because they have done a lot, is the environment. You have similar situations in the – both in the pollution kind of issues or the climate change. You have a global phenomena, you have compliance, you have a whole set of International rules that at the moment are very clear; some like it, some not, but at least they are clear. Everyone knows what are the rules and under which jurisdiction you fall in, because there is the International framework, there is the block framework, the European framework. And from the European, we are used to the Member States. 

>> BERTRAND de La CHAPELLE: We can actually come back on one point that you are making regarding the environment, because there is a principle of responsibility, for instance, in waterways that are International for upstream, downstream effects. I’d like to come back to this, because it connects to something that the Council of Europe has done recently. 

But I want to pick one word that you used. You mentioned SME, the Small and Medium Enterprises. The notion that a startup from the moment it begins should basically abide by the laws of 190 countries, how can we handle this? Because in particular, there is a pressure from a lot of Governments to say: I want the operators to have an office in my country, because that’s the way I have leverage on them to sue them. I mean, we had a meeting in Brazil and this is particularly an attitude of the Brazilian Government who says we want the operators to be present. How is that manageable for the small companies and how will that affect organisation? 

>> MARIA da GRACA CARVALHO: Just a general principle, we have to have a clear answer to that question, because the International private law is very complex and involving all the countries. It’s going to be unbearable for an SME, even a large company it’s difficult. So it needs very specialized lawyers in the field to deal with all of this complexity. So it’s very important that we have a clear framework, that SMEs know exactly what are the risks and benefiting from those risks. Because if we want to have the digital economy as the main point for growth, very important that we solve this question, that we make it clear and transparent to what are the legislation and jurisdictions. 

>> ERIKA MANN: There are many companies already out there, which are very small companies, the classical startup company, particularly in the games industry when you look around in Europe. In other countries, Germany, Barcelona, Paris, all over the place. So they built a small company, they have a great idea. And I know one company in Germany in particular, which I have in mind, a game developer, I think they have around 200 people now. I don’t want to name the company. I’m happy to do it if people want to hear it. But they serve around 50 million customers. Globally. So they are from the start a global company. And don’t forget in many ways, the revenues, when you are a purely Internet-based company, the revenues that you receive are very small. So you have to operate globally. So you can imagine how important it is to have a legal stable framework so you can ground your business on it. Otherwise, all these companies will face so many legal challenges. 

>> BERTRAND de La CHAPELLE: But at the moment – 

>> ERIKA MANN: It works. It depends on the topics. But I mean – look, you will check when you build a company like this, you will not operate – like gambling, you will not operate a gambling business in countries where you are not allowed to do gambling. You’d do it in the countries where you are able to do it. And you’ll make stakeholder agreements and you’ll do business where you are allowed to do it. They work as legal advisers as well. It’s not like they work without legal voice. 

>> LINDA STENEBERG: Even with close allies like the U.S., you have different takes on the same data. In the US it’s more the security aspect, the Patriot Act, etc, that drives things. In Europe, it’s the data protection of personal data. And this is – has been over the years, you know, the source of quite a few heated discussions, and it will continue to be discussed. But it just goes to show that this is very, very complex. So the issue of getting rules that are acceptable for everyone will not be an easy challenge.

>> BERTRAND de La CHAPELLE: Do you want to chime in on this? 

>> WOLFGANG KLEINWACHTER: This brings us more or less back to the bigger issue of understanding sovereignty in the 21st Century. What are the sovereign rights of States, because the traditional understanding of the 19th century, we had absolute sovereignty. Both Government or States who are independent, even the right to go to war was part of this sovereignty. This was blocked only – then in 1928, with the Brian Kellogg pact, you know, when the war was denied. And this was seen as a certain restriction of sovereignty. So it was justified only to have a thank you, not an aggressive war. So it was seen that sovereignty was squeezed down in the chart of the UN. 

You have to use Cogan’s principle, which was tricked to a certain degree. Some things you can do as a sovereign country, you have to respect the sovereignty of other countries, you have to choose to cooperate with other countries. 

Now the cyberspace pushed this further down and now we have to think of concepts, I wouldn’t say like shared sovereignty, but a cooperative sovereignty, so that the pressure is on the Governments and on the lawmakers. So that it means not to harmonize the law, but to find ways that they can coexist, in a way, by taking into consideration the special local needs, the cultural value, and all this, because this will not go away. So it means China will have different values from the U.S. Europe will have different values from Africa. So this will remain. And we have to find this mixture, where we can accommodate both the local needs and the global realities. And this is a challenge. 

So it means we cannot say that we have the system already. We have to be innovative. We have to move forward and create this new combination on the various layers. 

>> BERTRAND de La CHAPELLE: Thank you for having introduced the big “S” word, sovereignty. Absolute sovereignty is normally on your territory. It’s not supposed to extend to the territory of others. Erika used the word “gambling.” There was a place in the US where a gambling site placed in Canada was run under a bulldog.Com website. Because it’s a domain name that was under dot com, it was seized under US authorities, because the registry who manages dot com is based in the US. I don’t want to qualify the US especially in there, because there is another case, a few years ago, involving Libya. You know that dot. ly is the country code of Libya, and there was an American group of people who had registered the domain name in dot ly and the domain was seized, just because the picture on the front page presented a woman in a dress just with the shoulders bare. Sleeveless, that’s all. It was again the law which was a national law. 

What we are touching on here is the extension of sovereignty. When you have one country, there is a particular power for the country who hosts those operators to access and to exercise its sovereignty. And the recent events and the PRISM event is just one illustration of the same problem. Extra territorial extension. 

You want to chime in on this? Because this is contrary to the notion of sovereignty per se. You’re not supposed to impact other countries. 
>> JAN KLEIJSSEN: Well, yes and no.

>> That sounds like a lawyer. 

>> JAN KLEIJSSEN: It’s clear that the people who drew up the people of Westphalia were not thinking of the Internet. And that the Internet now has to operate in a global system, which is still very much or still very much in which Nation States are the main carriers of sovereignty, not the only one, not the proper main ones. And this of course poses an enormous amount of challenges. And I think that’s timely that we are therefore discussing it here. And I hope to get from the other participants, the participants sitting on the other side, a number of comments on this shortly. 

I said yes and no, because of course the rights, the human rights, for instance, human rights in Europe, for instance, are guaranteed to everyone who is within the jurisdiction as the European Convention of Human Rights States of parties to that Convention. You don’t have to be national. You have to be within the jurisdiction. So at the moment we are all within Portuguese jurisdiction and therefore we are protected by the European Convention on Human Rights. 

This is good for Europeans and other overseas friends here, unless you were up to something during your statement. 

Now, on the other hand, within the Council of Europe system, extra territoriality has actually been introduced in a number of – in some of our Conventions. 

I’ll give you one example, which is partially related to the Internet but not exclusively. It’s the Convention on the sexual exploitation of children. This makes sex tourism a criminal offense. It doesn’t matter whether you have committed the offense in a country where having sex with minors is legal, you can still be prosecuted in your own country. So you go to an Asia country, commit an offense, what is not an offense in your own country, you return, you can be arrested and prosecuted. 

>> BERTRAND de La CHAPELLE: What you describe is the national sovereignty on national citizens for things that they committed outside, which is slightly different from the point I was trying to address. Just to make the distinction. 

>> JAN KLEIJSSEN: Absolutely. But the crime was committed in the country where the act was legal. But it doesn’t matter, because your country thinks it’s not okay. So when you come back, you have to respond. 

There is another interesting case, and this concerns the Internet, which was a decision then, a judgment rendered by the European Court of Human Rights in 2005. A number of you know it, but if you don’t, perhaps I can illustrate it in a few words. It was the Peron case against the United Kingdom. You have a French man living in the UK who posts what is regarded in the UK as an obscene article, hosted in the U.S. They complied fully with US law. The person is prosecuted, sentenced to 30 months imprisonment in the UK. Come to the European court claiming this is his right under the Freedom of Expression. The European Court of Human Rights rejects the claim for a number of reasons. First of all, because it considers that the UK could claim jurisdiction, because if that were not the case the court held that that would lead to jurisdiction shopping. A resident of the UK would therefore expect that the UK law would be applicable to him. 

The fact that it was – and that UK law therefore had to be respected. The fact that the site was based in the US and was published there, may have been okay under US law, was not considered relevant for the prosecution. Nor interestingly enough for the sentence, because there also the court, there is the proportionality principle, you know, for a case to be – for your rights to be interfered with. They have to be prescribed by law. The measure must be a necessary and Democratic society and proportionate for the aims to be achieved. It was a stiff sentence, but the court found that although this may not have been the case in the U.S., the UK law applied. And it gave – that is perhaps the most interesting aspect, a very wide margin of appreciation to the national courts for this jurisdiction and to decide on these matters. 

But I think it’s a very interesting case, because you have a French citizen living in the UK, US website, goes to the international court and in the end in this case loses, but loses after a very, very careful, careful examination of his complaints. 

I mentioned, and I’ll stop here, I won’t be long, I mentioned the Convention on the protection of children against sexual abuse. We have a cybercrime Convention. That provides in article 22 that for a number of offenses under that Convention, the countries must establish jurisdiction. And if they can’t agree because there may by overlapping jurisdiction, there is a system to solve this out. 

And that is my final point, if you allow, is that because there are multiple jurisdictions, I think it’s important that as many States as possible adhere to the same instruments. Because a number of instruments in the Budapest convention on cybercrime, is an example, provide a mechanism for agreeing on when you get to individual complicated cases. 

So I think it’s the cooperation framework which is very difficult. There is not one general rule. We don’t have one general super Treaty, but if we had mechanisms under which States can sort them out –

>> You mean specific mechanisms on a – 

>> Yes. 

>> BERTRAND de La CHAPELLE: You may know that the Council of Europe has explored, and Wolfgang and I were participating in this exercise, a recommendation adopted at the end of 2011 regarding – that establishes the responsibility of state for transboundary impact of their national decisions, but we can come back to that later. 

I’d like to make just a quick opening to the audience, to see whether there are questions and also if there is any remote participation questions. Anybody wanted to chime in, either on the topics that we addressed or raise another one? 

Yes? Over there and there. 

>> AUDIENCE: Hello. My name is Diego and I’m a regular Internet user. 

For my point of view, I see that although it is – there is a – does this exist in any countries because of the distributed network. And the domain name is registered in a given country which has a jurisdiction. And people interacting with the system have defined jurisdictions. So why not make the service providers abide to all the jurisdictions? And perhaps find a common set of rules that follows all jurisdictions? And you can publish it and say you want to be a service provider? Safe everywhere, follow these rules?

I don’t know if that is possible. But perhaps an independent institution could try to compile these rules altogether and make it safe for companies to operate in all countries. 

>> BERTRAND de La CHAPELLE: Actually, it will be a very interesting segue for the second part, unless people want to talk, which is about what kind of regimes can we envisage to combine? Maybe we will take a few other comments, but I can go to your question.

>> PAUL FEHLINGER: There are currently about 30 people participating remotely. And there was one question on Twitter that I would like to forward to the panel, which is basically, “can we expect users to know under what laws the different platforms are?” So when users are online and using the different platforms, can we expect them to know, for instance, that when they’re on Facebook they are under what law their privacy is, for instance, regulated?

>> BERTRAND de La CHAPELLE: There was another question over there. 

>> AUDIENCE: My name is Ana Vasconcelos. I’m a lawyer. And I would like to be provocative and to put forward if the Westphalian model is absolutely obsolete and will eventually disappear, like middle age jurisdictions, like the church or cities, eventually, melt into the state, and we are in a transitional period and so we are confused, the problems we are – I think we are trying to adapt a new reality to the existing institutions and perhaps the existing institutions are not correct or efficient to deal with the problems we have. 

Since we have a global problem, I think our first instinct would go to International organisations to deal with a problem. The problem with the International organisations is that they have very high decision costs and take a lot of time to decide anything. And when they decide, it’s probably no longer a problem. 

And you referred the terms of service, and terms of service is something new that I see. And probably terms of service will be something that will be interesting to deal with the problem in the future. So perhaps we should focus more on terms of service and the fact that we have companies that now are sort of legislating and to try to understand what that means. Because that is totally new, perhaps revolutionary. So maybe we are in a revolution and things are much more complex than we think. 

>> BERTRAND de La CHAPELLE: Thank you. Other comment?

Yes? 

>> AUDIENCE: I wanted – John Carr. I wanted to raise a point arising from the reference to the case, because it was an important case in Britain. Mr. Perrin was arrested in relation to eight images that were on his website. Four of the images were behind a pay wall, so four of the images you couldn’t get to unless you had gone through some kind of mechanism, which the courts accepted implied that you were an adult. In relation to those four images, the charges were dismissed. He was arrested and charged, but the court said no, Mr. Perrin made a genuine attempt to try to make sure that children and other people who didn’t want to see those images couldn’t see them, because he put a pay wall in between. 

There were four images, however, left on the home page. Anybody could see them, whether accidentally or by design. And it was agreed by the lawyers and the court that the nature of those two images was identical to the four images that were behind the pay wall. He was, as you said, found guilty and sent to jail. 

So what that case established was that in the UK it is illegal to provide access to hardcore pornographic images on your home page without having made any attempt to determine whether or not the people coming to visit your home page were adults or in fact wanted to see that type of material. 

Here is the thing, every search engine provides access to those sites. So it was a high level legal decision. There was a clear decision in the UK that says that type of practice is illegal. And yet nothing has happened to enforce it purely because the British police don’t have the resources or because of the uncertainties of International enforcement procedures. And yet those sites are still readily available in the UK and everybody knows it’s illegal. That’s not a good position to be in, really. And one wonders quite why that practice continues. 

>> WOLFGANG KLEINWACHTER: Actually, the point that you’re raising is bringing the question of enforceability.

>> AUDIENCE: I wonder, and I’d like to have the view of the panel, I wonder if this debate is only for developed States in a very advanced stage of political and institutional development? And is this debate about more or less sovereignty might be less relevant for states in a different stage of development? 

What I’m saying here, it reminds me of the debate when we had other countries saying we don’t want to hear about that, because first we need economic development to reach a certain point. So I wonder what are your views? Is it similar or is it different? Thank you. 

>> BERTRAND de La CHAPELLE: Thanks for the addition. So, to recall what the questions were, and anybody on the panel can pick on anyone and we will take them. 

Can we expect users to have the knowledge? Is it possible for a user to be aware of the multiplicity of jurisdictions and rules that they may be under? That was one. 

The second issue was the question of transitional period. Post Westphalian environment. And I would link it to is this a discussion that happens only in western or developed countries or more broadly?

The other question, the first one, was actually: Is it possible to unify in some way, to harmonize in some way? And what I heard in the discussion or in the questions was on the one hand there was a sort of traditional harmonization orientation which goes to Treaty making and so on. 

And the other approach is are our terms of service a form of determination effective? 

>> LINDA STENEBERG: Just to kick off on the question of how much do we expect individuals to know, and I touched on that as well as one of the conditions, to be clear in my view at least – and this is my personal view – I think that you can only expect people to be aware of national law. Because that is what, at least in the country I come from, you are expected to know. I mean, if you are an adult and if you enter contracts, go on the Internet, et cetera, you are expected to know the law of the land. You can’t expect everyone to be experts at national law; that would be ludicrous. So, therefore, we have to protect consumers for things that happen outside of the territory. That’s clear. 

>> BERTRAND de La CHAPELLE: Let me be provocative with you one second. At the national level, this notion that nobody is supposed to ignore the law is a necessary and useful illusion, that is not the reality. People do not know the law. But it’s just a way to say you cannot pretend you didn’t know, because otherwise the system doesn’t work. 

>> LINDA STENEBERG: No. 

>> Exactly. 

>> BERTRAND de La CHAPELLE: How different is it from the – of course you don’t know the terms of service, but we have to pretend like you know the terms of service, otherwise it doesn’t function, right? 

>> LINDA STENEBERG: Well, the terms of service need to be clearer and need to be accessible for those signing on. 

>> BERTRAND de La CHAPELLE: They do. The national laws? 

>> LINDA STENEBERG: Well, the national laws – I’m not a lawyer, so I think I’m entitled to speak on this. And I think that –

(Laughter)

And I think that it is normally, you know, understandable. 

>> BERTRAND DE LA CHAPELLE: No. I’m half joking here, you know. 

What I mean is that we’re unfortunately in an environment where for a system to work, and that goes for companies, basically, what is being said to companies is you’re not supposed to ignore that a law in a country exists and that you’re infringing this law or that your users are infringing this law. You’re a hosting company, some citizen is putting user-generated content on the platform. It happens to be contrary to the law of one country. Basically, those countries are saying that this content is illegal in my country so it should not be on your platform. 

>> LINDA STENEBERG: It happens. 

>> BERTRAND de La CHAPELLE: How is it handled? 

>> LINDA STENEBERG: It depends on the server. So the first thing you have to differentiate between is the world where real goods are sold on the Internet or we talk about virtual services and virtual goods. So there is already a difference. 

The second, of course, it depends on the service or on the platform. They handle it very differently. Because we, take for example Facebook, we fall under Irish law. A complaint comes in from the German DPA or Portuguese DPA, they will handle it. Or it comes from a single citizen, the Irish Data Privacy Authority will say good, bad, it has to be reviewed. Or it’s clearly against a particular law. Go back to the courts if you’re not allowed in your country to see an advertisement, for example, on Ekelhorn, so you cannot see it and it can’t be delivered in this country. 

Hate speech in Germany, we will take it down. So it – 

>> BERTRAND de La CHAPELLE: But we are talking about the European space now. You are European, using an American platform, you post something against the King of Thailand, which is a traditional example. Are you liable, because in Thailand it’s illegal to say something against the king? That is a delicate question. 

>> ERIKA MANN: Yes, but there are very strong principles established for all of these cases, so if it’s against, you know, hurting the human rights, if it’s hurting, you know, the, you know, certain principles, it will be – and it’s reviewed, it will be taken down. So it depends on the individual cases. It will not be taken down in all cases. So it’s almost this balance between freedom of speech and human rights and a spot where you start hurting or harming. And I think nobody, none of the services have the perfect answers. So that’s why these discussions are so important. You have to fight it and you have to fight it out. 

Let me come back to one, if you allow me on the domain name. 

>> BERTRAND de La CHAPELLE: Yes. 

>> ERIKA MANN: There was a question, you know, if the domain name could probably become the jurisdiction. I find this an interesting one. But I would love to turn it around in a different way, because I see the new gTLDs actually challenges exactly this kind of principles to some degree. Because we have so many more domain names in the future which will be governed by very different systems because they are really different and they will have, you know, they will represent so many more Nation States and regions because of where they are located. So I think the old system of the classical domain name, the way we have seen them built-up in the history, will be actually challenged probably – maybe just this idea, even. So I probably – we can be less afraid in the future under the Domain Name System. 

>> BERTRAND de La CHAPELLE: Will it be a new map for the jurisdictional landscape for cyberspace? That’s basically what is under a TLD – 

>> ERIKA MANN: No. I wouldn’t go so far. I would say that because we will see so many more jurisdictions coming into play, because so many more players will apply under allocated and different state and different regions of the world. 

>> BERTRAND de La CHAPELLE: Let’s take a concrete example. Extending the bulldog and that case, there will be new gTLDs that will be in Russia, in China, in the Arab world. By definition those TLDs will be located there and they will be under the national law of that country. 

>> ERIKA MANN: Exactly. 

>> BERTRAND de La CHAPELLE: Does that mean that if we apply the same thing that the US is applying for the operators on its soil, the content of those domains that are under the TLD will have to abide by the national law of those countries? 

>> ERIKA MANN; I don’t know. It’s a question we will have to look into. But again, don’t forget the US is challenging the principle in misuse cases, what are defined as misuse cases. 

>> BERTRAND de La CHAPELLE: Yes. 

>> ERIKA MANN: So – 

>> BERTRAND de La CHAPELLE: Versus US law? 

>> ERIKA MANN: Yes. 

>> BERTRAND de La CHAPELLE: I leave the question open because I don’t think we have the answer. 

>> ERIKA MANN: I don’t think so. 

>> BERTRAND de La CHAPELLE: It’s answering this question regarding the domain name space.

(Microphone feedback) 

>> BERTRAND de La CHAPELLE: It’s okay.

>> MARIA da GRACA CARVALHO: I want to refer to two questions that were the International questions and then compare them to the Conventions and the environment. 

In my opinion, we have now a much more global world and we need to reinforce our global governance. And in a certain way, to reform or revisit the way we do global governance. And this is true in many areas, from the environment to trade to the one that we are to the cyberspace that we are dealing with.

And it’s true that the system that we have in place is slow, for the UN, it’s slow. It ends up to be expensive because we take so many times so many meetings, and we really need a special forecast like the Internet and the cyberspace that is so dynamic, when we will finish to have an agreement it will be completely different in the cyberspace. So it will be important that the political leaders of the world take this question of the governance of globalisation in a much serious way. And we really need the reform, both in the different parts of the world and the way that we deal with the global phenomena. It needs to be faster, more effective, and represent better everyone and every country in the world. 

Having said that, I would say that, for example, in the environment you have Conventions and the Protocols. And the Convention, where you need – Convention for climate change, the Convention on biodiversity, there you have all the countries onboard and the Protocol with the binding, no, you have the rest that are not there. 

But at least the Convention with the principles could be an interesting instrument where you set what kind of legislation that applies and the main things that every country could be on board. It could be an interesting solution. But you need to be much faster to agree to the environment and other Conventions that we have in place that take years to be agreed and thousands of meetings. And we cannot afford that in terms of the speed, how this cyberspace is changing everything in this domain. 

>> BERTRAND de La CHAPELLE: You raise an important question that goes in the direction of the question that was mentioned. IE, to address this issue, basically, to handle this tension between the cross-border Internet and the vertical national jurisdictions. The traditional way is to do an InterGovernmental Treaty and Convention and so on. I don’t want to even belabor, because you just said it, this is probably a heavy mechanism to have one single type of structure and agreement among just Governments. I think it’s a nonstopper that we don’t even need to discuss it. 

However, I’d like to pick two examples. Because on the side of the European Commission, there are efforts and there are efforts elsewhere to try to find, on the specific question of the Cloud, some types of rules that could be for Europe, for the OECD, and so on. 

Likewise, the Council of Europe, if I understand correctly, an attempt to do the companion particularly regarding the capacity of users who have redress. Like where do you sue when you have a problem? Which is a big concern. 

Linda, can you tell us just a bit about how to approach the issue of the Cloud, which basically is the ultimate cross-border instrument? It’s the Paramount Internet tool? 

>> LINDA STENEBERG: Exactly. I mean, this exemplifies very nicely what the problems are, I would say. And yes, we have put forward a communication, which is the first policy response. 

I’m not saying that we are there yet, so let me start out with a bit of modesty here. And the why is, well, it’s called unleashing the potential of cloud computing in Europe. So it’s about Europe to start with. And it underlines the needs to solve the problems of jurisdiction and applicable law in such areas as model contract terms and conditions of data protections. But of course in the prolongation of this, we would need far reaching International dialogue with countries. We have a dialogue with the US and Japan on coordination on legal and technical issues relating to the development of Cloud, and Cloud is also going to be one of the subjects for the TTIP that is going to start soon, as you know, in Washington, the second week in July. 

So it’s ongoing. There are a few partners. But of course most of it is there to be done. So this is part of our approach. 

But another part of our approach is also – what happened is that then grasping on to another field of this conversation, and that is to strengthen the cooperation on Internet Governance. And here, we all repeat the mantra of multi-stakeholderism, but we can’t expect it as by a magic wand to be transparent and all inclusive. That’s clear. So we really need to work on this. 

And of course part of the work is to be done within the IGF, and here we want to see the IGF strengthen and the Secretariat strengthen. We want partners to put their money where their mouth is, so to contribute quite in higher numbers than today. 

And we also want an agreement on basic principles and rules to apply to multi-stakeholders. I think many in this room, and I mentioned it yesterday, are also aware of our recent initiative of the Internet global repository. And this is intended to be a toolbox to facilitate, of course, to underpin the multi-stakeholder model. It’s not intended to replace any institution. It’s actually proposed to help. 

So with that, I think that we need to keep several things in mind when we’re talking about this. 

>> BERTRAND de La CHAPELLE: To pick on the first issue regarding Cloud, we are already talking about dealing with issues on an issue by issue basis, as opposed to a universal framework that would be for everybody and every topic related to the Internet. 

With that being said, when we are talking about the efforts regarding Cloud, either what was done in the OECD or here, this is a subgroup of countries. It is rules that apply to Europe and the US or the OECD countries how to pick commas’ question, how can this function in a broader space, knowing that there are some actors in the landscape who do not want rules for the Cloud. How do you determine those who don’t want to participate in a discussion and those who cannot but should be involved because they would like to share those discussions? 

>> LINDA STENEBERG: Well, I think the reply is that we really have to reach out to other countries, especially the middle ground countries of course. Because I think it’s easy to go the national way, because that is the law of less resistance, and that should be resisted to make it upon, absolutely be resisted. 

And I really think that it’s very dangerous and it’s condescending to say oh, we need these good and fancy rules on the Internet Governance and how to use the Cloud, et cetera. But the least developed countries don’t need it yet because they have other fish to fry. I don’t think that is the right approach. We should try to bring as many countries along. 

And I also think for the environment, by the way, because now we have the data, just to make a side comment, we now have the data that the countries, also developing countries who invested in environmentally friendly technology have had better growth, with the exception of China, perhaps. But it is in the medium term a winning strategy. So I don’t think we should make the same mistake again as we perhaps did with the environment and say okay, they will come along when they can. I think we should try to bring along as many as we can. 

>> BERTRAND de La CHAPELLE: One of the benefits of the Cloud is it lowers the barriers to entry for activities. So in a certain way it’s more needed to have a certain number of developing countries being part of a regime that first facilitates Cloud, just to make the point, because it’s important. 

The other point is related to the multi-stakeholder approach. Beyond the IGF and the various initiatives, the discussions on Cloud, and that goes also for what I was going to ask Jan, how are the stakeholders engaged in those discussions? How is the discussion on the Cloud regime going to be multi-stakeholder? 

>> LINDA STENEBERG: Well, already we set up the Cloud partnership and that includes a lot of stakeholders in Europe. And it’s not a bad idea to multiply that initiative, I would say. And as you know, we are very active to reaching out to stakeholders in digital connect. So my reply to that would be that we try to preach with an example, but we need a bit more followers on that model. Okay? 

>> BERTRAND de La CHAPELLE: Jan, you wanted to say something or was I mistaken?

>> JAN KLEIJSSEN: I remember in the ’90s when the cybercrime was discussed, a need for a Treaty, it was primarily the Member States of the Council of Europe. And September 11, they decided in Budapest to have a Convention, and this is open for the rest of the world. So, and then, you know, it’s a great Convention, so that means everybody can sign it and it will help. It’s a step forward, it’s not the final step. 

But then countries like Brazil and India came and said it’s a good Convention, but we’re not part of the development of the legal norms in the Convention, and we would prefer to do it in the United Nations. So they were in part in the ’90s, but then they realized it’s an issue ten or fifteen years later, and now we have the dilemma. So the easiest way is that everybody signs the Council of Europe convention on cybercrime. But even a member of the council, Russia said no, we have to do this in the United Nations, because we have a problem with one paragraph and it goes to the question of sovereignty. And if it goes to investigations beyond your boarders, if you have now a group of countries which would agree on certain principles, and certainly ten or fifteen years later, other countries say oh, it’s now our problem, how to settle this dilemma, indeed it’s not so easy. 

In the Russian Federation, to introduce in the ITU the idea of this so-called national Internet segment, this was a totally confusing concept. Nobody could really define what is the national Internet segment? So even, you know, I ask two representatives from different ministries in Russia, the IGT in Moscow, they were unable to explain it. But a lot of people say they have an International segment, they feel it. But they cannot define it. And so they are happy that the IGF gets a more and more prominent role in producing, at least, clarification. So that means what we would expect probably also more output in concrete forms. But this is, for the future, for the moment the IGF could help, really, to clarify a lot of these issues, so that people, you know, stop the confusion and come home and say okay, oh, that is why. 

And so far to invest more into the IGF or what you have said, the European Commission is invited to bring money to the mouth, and the IGF needs more strengths, and so it’s mostly welcome if you announce it here and I hope that we will see more progress.

>> BERTRAND de La CHAPELLE: This is a direct connection as well. The role of the IGF for maintaining this dialogue between the early birds and the late risers is that the IGF is a watering hole every year where everybody comes and says this is what I have done, this is how my work has been progressing, you can join or not. So just like the Cloud exercise is going to be presented on those occasions, saying how it moves, wherein Europe it’s the EuroDIG, how much can the Council of Europe develop drawing on the Convention of Cybercrime, and the limitations regarding what Wolfgang was saying, how can the work that you’re doing now, specific ones on the rights of users, but also the others, be both something that is regional but that is also a beacon or a universizable, if I can use this awful word approach. 

>> JAN KLEIJSSEN: I want to apologize, it’s difficult to read the Twitter feeds. I would love to react. We tend to miss them if we listen to each other. So the suggestion was made yesterday that we could also see it and react. But that is for a start. So I apologize if we don’t pick up on your tweets as directly as we should do. 

What can the Council of Europe do? The terms of agreement were mentioned. And can any of you who have actually read the Facebook terms of agreement, those of you using Facebook, could you please raise your hand?

(Showing of Hands)

>> Not as a user, but because of the project. 

>> JAN KLEIJSSEN: As I expected. The overwhelming majority of course, in fact, has not read it. 

>> MARIA DE GRACA CARVALHO: I read it to prepare for today. 

>> BERTRAND de La CHAPELLE: May I ask a question, who in your country has read all the laws for privacy and data protection? Raise your hands. Go ahead. 

>> JAN KLEIJSSEN: In order to, actually, when we were in Sweden last year, EuroDIG, those of you who were there would perhaps remember this young Swedish lady from the youth delegation who said, no, we haven’t read it. We just click yes and hope for the best, which I think summed it up rather nicely. This is one of the reasons why in the Council of Europe we started work on a compendium on the rights of Internet users, which we hope to have adopted by our Committee of ministers either this year or early next year. And remedies, as you said, are a very crucial part of that. The right to an effective remedy is probably one of the most important articles of the European Convention on the Human Rights. Because all of these human rights aren’t doing much good if you can’t enforce them. 

So it’s in article 13; which – which obliged States to provide such remedies. One of the ideas is to put together, in a hopefully somewhat more accessible form than 41 pages, the main rights that the Court of Human Rights has already defined as being applicable to the Internet. 

The rights that you find in other conventions, such as the Data Protection Convention, Cybercrime Convention, I mentioned sexual abuse of children, there are provisions in there concerning grooming. There is a whole series of rights, and we want to bring them together but in an accessible form. And we will try to get the language, which is also accessible and not excessively legal, with references if the lawyers want to dig into it, they will find it. But the users they will have an idea. 

I hope that is going to be useful. And I hope that the main companies, looking now at Erika here, we spoke yesterday to other companies, and they will make reference to this compendium once it’s there. So it’s not only found on our website, which would limit it, or found on the ministry’s website. But at least the link could be found. That would help a lot to inform people of what the rights are and where they can go if they have a problem, if it’s essential. 

And a short word on the Cybercrime Convention and what else we do on a global context. The Cybercrime Convention is now ratified by 39 States. It includes the U.S. Japan, Australia, the Dominican Republic, Morocco has asked to sign and ratify. So we are slowly getting out of a European context and that is encouraging. It’s true that some of the Member States have so far decided not to ratify yet, so it’s not a global Treaty. 

On the other hand, there are some 125 countries in the world, and we think that is not bad, that actually apply part of the Convention or the essential principles of the Budapest Convention in the national legislation. We cooperated with 125 countries to get at least the main, key into the main elements of this Convention, transmitted. So if States don’t want to ratify the whole thing, but some of the key elements, and there is a key element on human rights, article 15, which says that everything that you do to fight cybercrime should be compatible with human rights, either the Convention of the European Countries or the UN Convention, and I think that’s fairly essential. 

And for the new work, it’s true the Council of Europe only has 47 States, but all the legislative States is from the outside done by 47 plus five, the five observer States – Canada, Mexico, Japan and others – and they do participate from the outside in our negotiations. Others can also ask to join in a Convention, for instance. Israel asked to join and was admitted to join in the negotiations right from the start. So we are trying to reach beyond our geographic borders. 

>> BERTRAND de La CHAPELLE: It’s a compendium, so it’s a clarification of the current status. 

>> JAN KLEIJSSEN: Of existing rights. 

>> BERTRAND de La CHAPELLE: For instance when we talk about the capacity to obtain redress or to get an appropriate due process in treatment of some things, it is not going to establish new agreements. 

>> JAN KLEIJSSEN: No. It’s not a charter. It brings together what exists. 

>> BERTRAND de La CHAPELLE: Erika, you wanted to say something and I saw that Jan – 

>> ERIKA MANN: Because you asked me on a broader International framework one could use to find more interoperability. I think at least, again, looking back into the history, the World Trade Organization sets certain principles and rules which are guiding, you know, a small part of the Internet economy, as well when you look in certain parts of the e-Commerce environment, the TRIPS agreement, which was negotiated. So there are certain bits and pieces which one can find, WIPO on intellectual property rights. So there are rules in place with regard to certain topics, which may be not enough, maybe they need to be, you know, more worked out. But it’s not true that there is no history at all. So there is a history, which is fragmented, and maybe this was good for the way –

(Microphone feedback)

So anyhow, the point was made, you can take over. 

>> BERTRAND de La CHAPELLE: Well, it must be somebody around. 

Yes, sorry, you were saying. 

>> ERIKA MANN: It’s fine. You just take on. 

>> BERTRAND de La CHAPELLE: You wanted to say something? Any quick questions? Yes? 

>> AUDIENCE: I have two very short observations. One of them is that terms and conditions and general contractual conditions can amount to abusive contractual conditions.

(Microphone feedback)

And if that is the case, traditional law has remedies for that, has responses to that. 

And there is European Union legislation, I think, a directive of 2003 dealing with that. That is one observation. So terms and conditions of use can amount to abusive conditions, abusive contractual conditions and there are concrete responses to that. 

The other observation is that we may be assuming something, and we may be over assuming in this context, that the modalities of the application of jurisdiction and the modalities of the determination of justice are fixed and cannot evolve. And maybe we have to think about that as well. 

>> BERTRAND de La CHAPELLE: Fair point. Luis. 

>> LUIS MAGALHAES: Luis Magalheas from the Lisbon Technical University. 

Just an observation regarding this question of jurisdiction and principles, and the possible harmonization idea. In general, it seems to me that the idea of trying to receive global harmonization is not good, in the sense that that would lead to well, if at all, to a very small common denominator. And subjects cannot be dealt with on the basis of a very small common denominators. 

So what I think can be achieved, actually, on the basis of principles that are well discussed in the multi-stakeholder and evolving quite a diverse contribution so that they can be a step forward, people can then voluntarily adopt, it’s actually the most that can be done. And we have good examples, as a matter of fact, in the sense that when you reach out to other parts of the world, even – or other groups of people from those who participated. The fact India or whatever countries did not sign the Convention, it does not mean that they are not paying due attention to that and to consider it under their own legal framework. 

And as a matter of fact, the work that the Council of Europe has been doing on the Cybercrime Convention in Asia and other continents, which is an outreach that goes much further than their membership, is certainly a way that shows how that can develop and to bring more people during – to the – adapting them to their realities. 

Thank you.

>> BERTRAND de La CHAPELLE: Yes, Viktor. This person and then you. But that’s okay.

>> AUDIENCE: Thank you very much. Rikke Frank Jorgensen from the Danish Human Rights Institute. 

I would like to propose when you move forward this discussion on jurisdiction, that is very timely and relevant, that you actually take access to remedies or lack of access to remedies as a key theme. Because I think it makes the discussion very concrete in any specific context. What are the access to remedies that users in a given country have? 

And if you take Facebook as an example, since you’re on the panel, it’s not clear whether Facebook sees themselves as bound by European data protection legislation. I know that the article 29 group interprets it this way, but the way I read Facebook, you see yourself bound by Irish national law, because you have a physical office in Ireland. But okay, so you see yourself bound by the European Data Protection Directive? 

>> ERIKA MANN: Sure. The 95 interpretations. For those who don’t know how this system works in Europe, there are different ways of framing laws. One is to have a harmonized legal system and one is where the European law will be transposed into national law with certain variations. So the 95 laws which is transposed into national laws with national variations, the new one is different.

>> AUDIENCE: But the current situation as a user in Denmark, for instance, if I want to complain or if I suspect that my privacy rights are violated with Facebook, I have to go to the Irish authority as it is at present. And that’s not really access to an effective remedy for me as a user. That’s what users in most European countries are told, that they have to go to the Irish States. 

>> ERIKA MANN: You can go to the national.

>> AUDIENCE: I’m sorry to tell you, it doesn’t work that way. But that’s one concrete example where you can say that you cover a whole region and then to have to go to one specific country. There are language issues, practical issues, it’s not an effective remedy for most users. 

Then I want to congratulate you for joining the Global Network Initiative, which you did recently. And I was wondering as part of that, which is formally subscribing to human rights standards and compliance with those, whether you would be willing to undergo a human rights impact assessment to evaluate your business practices on a very concrete level for the impact and adverse impact on human rights standards, such as privacy and Freedom of Expression. 

>> BERTRAND de La CHAPELLE: I’ll let you answer afterwards if you want. Jan and then Wolfgang. 

>> AUDIENCE: Thank you. My question is in regard of the terms of use. I’m not sure about if this happens in all terms of use, but that is some that have one specific line that says the terms of use can be changed at any time. 

And my question is, are the European institutions and the courts prepared to defend the citizens from these contracts if the contracts themselves say the contracts can be changed at any time? Because we can sue a particular contract from a specific company, but when the case gets to court that contract might not be the same that was there when the citizen provided the suit. 

>> BERTRAND de La CHAPELLE: Basically, the evolution of contracts or terms of service. Yes. Wolfgang? 

Just in terms of timing, we started a little bit late. So I suggest if it’s okay with the organizers, that we go basically until a quarter past 11:00 instead of 11:00. And then we can have the break. 

Wolfgang. 

>> WOLFGANG BENEDEK: Wolfgang Benedek, University of Graz, Austria. Thank you very much. 

I’m a member of this expert group which works on the compendium of the thing that has been presented, and I think it’s a very good project.

But I think we have to say that our task is only to put together what is already there. And in a similar way, the European Commission in the digital agenda context has put together a chart of consumer rights. Again they put together what is already there. 

What we found when looking at what is existing is that there is a big deficit. There is a big asymmetry between the users and the companies and the law, let’s say. And awareness is not enough. So the question for me is also who is working on improving this, the user rights? What is the Commission doing in that respect? What is the – what is being done in other contexts in this respect? And I would like to highlight that it’s not enough to put together what is there when we are all aware that this is not sufficient. Thank you. 

>> BERTRAND de La CHAPELLE: Chris and the last person and then we will wrap up here. Chris, behind you. 

>> AUDIENCE: Thank you, Bertrand. Christopher Wilkinson. Three short comments on the debate, this excellent debate as you have just heard. First regarding sovereignty, of course, the European Union is a system of shared sovereignty. It has its limitations. But when it succeeds in the internal market, the advantages to the public and to the economy are enormous. The data protection regulation should become an example. 

Regarding the new domain names, I noticed that the majority of the proposals for new gTLDs are incorporated in tax havens. And if so, in addition to the tax law in these islands and peninsulas, we may have to start worrying about the privacy law, the Consumer Protection laws, the security laws in all these little places, just at the time when the G8 apparently has decided to try and sort out the tax aspects of these incorporations. 

Finally, regarding the cloud, of course I know basically about how it works and what it’s for, and there are clearly some advantages. But the name is a misnomer and it’s misleading. This is not in the cloud. The companies operating the cloud services are quite reasonably operating service and communication systems on the ground in places with jurisdictions. So, I think we should not romanticize the cloud and just be serious about where it is and how it works. 

Thank you. 

>> BERTRAND de La CHAPELLE: The last question is over there and then we will wrap up. Can I have a microphone for the gentleman? Paul, any remote participation or questions after words? 

>> AUDIENCE: Thank you. I’m Frans and I’m a college student. You have discussed – you have discussed the jurisdictions, treaties, agreements, terms of use, many things. But the discussion until now was focused on me as a Portuguese accessing the service from Germany and what jurisdiction should I meet when I use it. I believe that is not really the question here. And the way to face it. 

In Portugal, I believe many of us are here also, there are people from Spain, Germany, France, United Kingdom and we are all from different nationalities, but we are forgetting about one thing. In Europe, we are all European. We have the European Union. We have many ways of reaching agreements with the European Union. And it’s my belief that to solve this problem what we need is to find a common jurisdiction between all European Unions that all Member States oblige. And like that, it’s meant – it’s a way to solve many of Europe’s problems. We are forgetting that we are a union and we need to be more united to solve the problems that we face in the future. And this is one of them. 

Thank you. 

>> BERTRAND de La CHAPELLE: Thank you. That might not solve if I may say the relationship with platforms in other countries outside of Europe. If all platforms were out of – were in Europe, it might be a solution. 

The purpose of the panel was not to solve in one hour and a half, as you can imagine the challenge of harmonization and –

>> Why not? 

>> BERTRAND de La CHAPELLE: We failed. The goal was to try to bring a few spotlights. And I want to stop on the comment regarding access to remedies, because it’s a dimension that we have not explored enough, because it was the general presentation, but it’s indeed a very important thing. 

What we wanted to do, and I hope it worked, was to present some of the different challenges. And one of the elements regarding how to move forward is that, and the panelists will correct me if they feel it’s not the case, there is a general sentiment that the right approach to move forward is to take issue by issue, like carving them out, solving them separately. 

Second, to do it in a multi-stakeholder manner through a progressive iteration process. 

And to speak on the question of how to make it universal without starting by being universal, how to arrange the balance in the process between the actual work and the awareness of other actors on this work. 

So apart from the fact that this is what we follow in the Internet and jurisdiction process, and that’s my minute of advertisement, I would like for the different panelists, maybe starting with Maria, I wouldn’t say for a concluding statement but what you would like to share as the main message on this topic on how to move forward, or your feelings about the panel in general. 

>> MARIA da GRACA CARVALHO: Thank you very much. I just want to comment in one of the comments that when I referred to the global Governments, I didn’t mean harmonization. I think for this field that is so dynamic, it would be impossible. But I think that we need to have a kind of common principles at the multi-country level or International level. How to do that is not easy, because of the forums that we have, like the traditional forum like the UN is very slow and it doesn’t adapt in a certain way to the dynamic of this field. But the building from what is already going on at the Council of Europe, at the European Commission, try to get the developing countries. 

It’s very important that we, from the beginning, as many countries, we have the emerging countries and the growing economies, and the digital economy and all these things, that we have a set of principles and that we have clear information. 

This question is very important, that our users and the enterprise and the many SMEs, they know what are the risks, what are the opportunities, what they can do and what they cannot do. Because at the moment it’s so complex that it’s a paradise for very, very specialized lawyers. And we really need to have more clear rules and principles at the International scene in order to help this digital economy to grow. 

>> JAN KLEIJSSEN: Just a general comment. I thank everyone for the comments. I’ll read the tweets afterwards and try to answer. Thank you for keeping us on track for this complicated and multi-facet the discussion. 

Main message from me, as was rightly said, the compendium will come out. It will bring together what is there. It’s clear there will be drafts. The draft will be circulated widely before we submit it to our decision-making authorities, which means that all of you out there, Civil Society, individuals, companies, please do react. Help us identify the gaps. Even better, try to suggest what we could add in a next step. Because the compendium is only a first step. It brings together what is there. It will hopefully make it clear by putting together what is there, it will make it clear what is not there. And we hope that will lead to future work on our part. 

So please help us in doing so. Thank you very much. 

>> BERTRAND de La CHAPELLE: So it’s a gap spotter. 

Erika. 

>> ERIKA MANN: Thank you for organizing this and for the work that you are doing in this area and this field. Thanks to the organizers. 

Just maybe a very quick final note. I think the Internet poses many challenges to all of us, but it’s a lawless room or space. On my table alone, I have three big books about Internet laws, and there are many more when you look at – so I think we need to keep this in mind. 

And maybe just one tiny one, in what may help in the future and maybe for your project, to work on and to look into what is called interoperability of laws. So maybe instead of harmonizing or looking for big new treaties, maybe that is a concept which could work. 

>> BERTRAND de La CHAPELLE: Thanks. 

>> LINDA STENEBERG: I want to echo the thanks to you for this interesting panel. I learned a lot personally from both the other panelists and from questions to the room, and thanks to organizers. 

Just first to clear up what I think is a slight misunderstanding from the gentleman over there, Wolfgang, who asked about the digital agenda. I think you referred to the scoreboard which charts what has been achieved already. Yes, but this is not a box kicking exercise. This only shows what has been done so far. It doesn’t actually register yet what is still to be done.

So don’t give up on us. We’re definitely working also on consumer protection. It’s not my particular responsibility, but I know this to be true.

Now, for a final message, again I would like to repeat that also apart from enforcing existing law, corporate, social responsibility is also a tool to steer the behavior of private actors on the Internet. So let’s not forget about that. 

I already said also that International cooperation is needed on the Cloud. We perhaps have to start with our own home space, home yard, to put that in order. But still we need International cooperation. 

And again, also, to actually encourage States and authorities to step up their involvement and including strengthening the IGF and other fora of that nature. 

Thank you. 

>> WOLFGANG KLEINWACHTER: I wanted to take questions from the lady on the left side. We have to be innovative. We are in the midst of a transformation process and we have to think out of the box. We cannot settle the problems of the 21st Century with the instruments from the 20th century. We have to be creative. We have to produce something new. The Human Rights court in Strasbourg did not exist before 1949. It needed after World War II that Governments came together and we have to do something. The Cybercrime Convention was negotiated for 10 or 15 years, and then the focus of September 11 pushed the Governments to design something and to say we have to have something on paper. Probably we can avoid another shock and to be more proactive and to understand the writing on the wall that we have to create something new, which matches the challenges of the 21st Century. 

This is hard work, but I’m also optimistic that the institutions we have built in the last couple years, in particular the IGF and EuroDIG and the national IGFs, will help us to move in that direction. 

Thank you. 

>> BERTRAND de La CHAPELLE: Well, on this note, which I don’t know whether it’s optimistic or pessimistic, because if we have to get a big shock to make the next step, it’s unfortunate that it might be a very, very big shock. 

With that, I want to thank you all. I think the message that Wolfgang shared is that basically the challenge is to find the modes of coexistence in shared online spaces and the rules and mechanisms to develop rules for shared online spaces. We are all part of this exercise. 

Thanks for having participated. I hope that the presentations were pleasant. It was not done by lawyers for lawyers, because this is a policy issue. 

Thank you.

(Applause)

[[Category:2013]][[Category:Sessions 2013]][[Category:Sessions]]