Controlling the Narrative - Part 5

International Efforts by Governments to Control the Internet.

Introduction

Governments face demands to regulate new technologies, manage the broadcast spectrum, control anticompetitive behavior, protect consumers, increase privacy, discourage tobacco use and other harmful practices, police advertising, and foster the public good. Content regulation is just one part of the regulation of new technologies but for many this is the only aspect of internet regulation that is of concern.

What differentiates this form of regulation from others is that it is superficial in nature and in many respects calls upon rules and concepts that arose in a different publishing or dissemination paradigm. But it is only a part of an overall regulatory picture. Nevertheless, for most Internet users content is king.

The history of press, radio and television are continuing stories of State involvement with the media to one extent or another, be it at the level of content licensing following the statute of 1662 (print), state ownership and control of radio broadcasting as was the situation in New Zealand up until the early 1970’s or television channel licensing as is the case today. In addition there were the regulatory structures of the Press Council (now the New Zealand Media Council) and the Broadcasting Standards authority.

In many respects the fields of what could be termed cyberlaw and media law intersect. This is because the Internet is a communications medium which provides a number of different communications platforms. Text, images and video can be communicated via the Internet and as the Digital Paradigm took hold this posed a number of challenges. Which regulatory structure was applicable? Did the transmission of live streamed material on a website by an online newspaper render the newspaper, usually subject to the voluntary processes of the then Press Council, subject to the scrutiny of the Broadcasting Standards Authority? If Radio New Zealand made its content available in text form, did it stop being a broadcaster in respect of that content and potentially be the subject of complaints to the Press Council.

And behind all of this remained a responsibility to ensure that material that was made available was not “objectionable” within the meaning of the Films, Videos and Publications Classification Act.

Governance by Governments

The Christchurch Call was a meeting co-hosted by New Zealand’s Prime Minister, Jacinda Ardern and French President, Emmanuel Macron, held in Paris on 15 May 2019. It was a global call which aimed to “bring together countries and tech companies in an attempt to bring to an end the ability to use social media to organise and promote terrorism and violent extremism.” It was intended to be an ongoing process.

It could be seen by some as a cynical attempt by the New Zealand Prime Minister to quickly move to centre stage in the international arena – an attempt which in the long term has paid significant dividends in terms of international reputation and financial advantage.

The Christchurch Call is not the first attempt to regulate or control Internet based content. It will not be the last. And, despite its aim to reduce or eliminate the use of social media to organize and promote terrorism and violent extremism, it carries within it the seeds of its own downfall. The reason is, like so many efforts before it, the target of the Christchurch Call is content rather than technology.

Calls to regulate content and access to it have been around since the Internet went public.

The Christchurch Call is eerily familiar, not because of what motivated and inspired it, but because it represents an effort by Governments and States to address perceived problems posed by Internet based content.

Indeed While the Law Commission Report and the Harmful Digital Communications Act were being debated and considered, in 2011 and 2012 there were renewed calls for greater regulation of the Internet.

In 2011 a similar effort was led by then French President Nicholas Sarkozy at the economic summit at Deauville – is it a co-incidence that once again the French are leaders in this present initiative? So what was the Deauville initiative all about?

Deauville May 2011

The Background

In 2011 and 2012 there were renewed calls for greater regulation of the Internet. That these were driven by the events in the Middle East early in 2011 which became known as the “Arab Spring” seems more than coincidental.

The “Arab Spring” is a term that refers to anti-government protests that spread across the Middle East. These followed a successful uprising in Tunisia against former leader Zine El Abidine Ben Ali which emboldened similar anti-government protests in a number of Arab countries. The protests were characterised by the extensive use of social media to organise gatherings and spread awareness.

There has, however, been some debate about the influence of social media on the political activism of the Arab Spring. Some critics contend that digital technologies and other forms of communication — videos, cellular phones, blogs, photos and SMS messages— have brought about the concept of a “digital democracy” in parts of North Africa affected by the uprisings.

Others have claimed that in order to understand the role of social media during the Arab Spring there is context of high rates of unemployment and corrupt political regimes which led to dissident movements within the region. There is certainly evidence of an increased uptake of Internet and social media usage over the period of the events, and during the uprising in Egypt then President Mubarak’s State Security Investigations Service blocked access to Twitter and Facebook. On 27 January 2011 the Egyptian Government shut down the Internet in Egypt along with SMS messaging.

Sarkozy’s Initiative

In May 2011 at the first e-G8 Forum, before the G8 summit in France, President Nicolas Sarkozy issued a provocative call for stronger Internet regulation. Mr Sarkozy convened a special gathering of global “digerati” in Paris and called the rise of the Internet a “revolution” as significant as the age of exploration and the industrial revolution.

This revolution did not have a flag and Mr Sarkozy acknowledged that the Internet belonged to everyone, citing the Arab Spring as a positive example. However, he warned executives of Google, Facebook, Amazon and eBay who were present:

“The universe you represent is not a parallel universe. Nobody should forget that governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to risk democratic chaos and anarchy.”

Mr Sarkozy was not alone in calling existing laws and regulations inadequate to deal with the challenges of a borderless digital world. Prime Minister David Cameron of Britain stated that he would ask Parliament to review British privacy laws after Twitter users circumvented court orders preventing newspapers from publishing the names of public figures who are suspected of having had extramarital affairs, but he did not go as far as Mr Sarkozy who was pushing for a “civilized Internet” implying wide regulation.

However, the Deauville Communique did not extend as far as Mr Sarkozy may have liked. It affirmed the importance of intellectual property protection, the effective protection of personal data and individual privacy, security of networks, and a crackdown on trafficking in children for sexual exploitation; however it did not advocate state control of the Internet but staked out a role for governments.

Deauville was not an end to the matter. The appetite for Internet regulation by domestic governments had just been whetted. This was demonstrated by the events at the ITU meeting in Dubai in 2012.