Internet Governance and the Judiciary

Why is it so difficult for the judiciary to engage with these forums? If there is a desire on the part of governance bodies for the judiciary to participate, and on the part of judicial officials to gain a deeper understanding of internet-related issues, where are we falling short? What opportunities for debate and conversation are we missing out on? Perhaps this post can, at the very least, serve as an invitation to the judiciary to join the governance conversations, starting by discussing these basic questions regarding access to such forums.

A new session of the Regional Preparatory Meeting for the Internet Governance Forum (LACIGF) began this week. The LACIGF, like all governance forums, is a multistakeholder space. What does this mean? It means these are spaces designed to bring together all stakeholders so they can participate, engage in dialogue, stay informed, and seek answers and solutions to the various issues identified within the ecosystem. As Guilherme Canela (UNESCO) states in the article “Democratic Rule of Law and Internet Governance: The Key Role of Judicial Actors”, recognizing the complexity of the Internet ecosystem entails the need to include a wide range of actors, “especially when their perspective must be considered central to the development of the Internet in a manner that respects human rights.” Governance forums take on even greater importance during a pandemic, as isolation and digitalization compel us to consider internet access and freedom of expression from a much broader, fairer, and more inclusive perspective. In these times, meeting in the digital space presents a challenge, but also an opportunity. Just last month, for the first time, we held the CELE workshop “Toward Better Internet Regulation in Latin America” entirely online. This presented quite a challenge—even though it was the eighth edition of the workshop—not only in delivering quality content in the best possible way but also in coordinating simultaneous sessions with a group of more than 30 people. The creation of this virtual space is something to celebrate, as it allows us to maintain these forums and facilitate participation. At the 2019 Global IGF in Berlin, 42% of participants were from civil society, 19% from the private sector, 18% from governments, 11% from the technical community, 4% from intergovernmental organizations, 3% from the press, and another 3% were legislators. Only 9% of the participants gathered in Germany came from Latin America and the Caribbean. This is despite the fact that remote participation in the event has historically been enabled; however, even with this option, Latin America accounted for only 6% of the remote participation hubs. That is why the LAC IGF serves as a vital platform for bringing these debates to the region, especially during the quarantine. The availability of these online spaces makes it possible to envision multiple and diverse scenarios regarding potential attendance and participation in the 2020 forum. Unfortunately, there are no publicly available statistics on remote participation in this regional forum in the past. Nevertheless, the format is unlikely to have much influence on the greater or lesser representation of certain actors in the debate. Among them are legislators and the judiciary, who historically—in both global and regional forums—have had a tradition of little or no participation. In his paper, Canela identifies three key reasons for promoting the active participation of the judiciary in internet governance forums: they are judicial decision-makers regarding the internet; they require technical knowledge of the internet and new technologies to conduct investigations within their jurisdictions, including the development of practices related to digital evidence; and finally, they are users of the internet and everything the virtual world has to offer, utilizing it for both personal and professional purposes. All of these points were addressed in the session organized by Canela himself, in collaboration with CELE, at the 2019 IGF with judges from Brazil, Ghana, and the European Court of Human Rights. This three-dimensional perspective shows that the participation of judges in internet governance forums could be key to ensuring respect for human rights online. However, judicial officials lack initial training that would give them the tools to address these highly complex issues from a perspective of protecting and promoting human rights, nor do they tend to participate in governance forums. This is the case even though, according to UNESCO surveys, judges, prosecutors, and public defenders show a clear interest in these issues. This interest is clearly evident in the online course “International Legal Framework for Freedom of Expression, Access to Public Information, and Protection of Journalists,” which has been offered for the past five years under the coordination of Catalina Botero, dean of the University of the Andes School of Law, and is co-organized by UNESCO, the Knight Center for Journalism in the Americas, and the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights. In the course, the module on “Freedom of Expression and the Internet” attracted the most attention among participants, “both because it covers new topics and because it increasingly addresses legal challenges in which the internet takes center stage.” The module’s content aims to familiarize participants with perspectives from the international system, where topics ranging from the basic concepts of the internet’s architecture, its design, and operation—through the liability of intermediaries—to the conditions under which content filtering and blocking are acceptable are discussed. Certain experiences within the judiciary reinforce this conclusion, even demonstrating how, in the absence of formal participation in governance events, higher courts (in particular) have at times created their own forums for debate on governance issues. The public hearing held by the Colombian Constitutional Court in 2019 on intermediary liability could be cited as an interesting precedent. The hearing did not address a specific case but rather issues common to a number of cases pending before the Court, which required a multi-stakeholder discussion capable of outlining for the Court the complexity of the issues at hand, possible theoretical solutions, and the implications of the proposed solutions. One year after the hearing, Lucia Camacho of the Karisma Foundation describes it as: “An unprecedented event in which a high court in the country convened experts, civil society organizations, and representatives of platforms to speak out on the exercise of freedom of expression on the internet, data protection in the digital age, and the liability of internet intermediaries such as Facebook, Google, YouTube, and others.” Similarly, the hearings held by the Argentine Supreme Court in the Belén Rodríguez case and the Court’s invitation to submit amicus briefs in that case could also be viewed in this light, although focused on a specific, individual case. So what is going on? Why is it so difficult for the judiciary to engage with these forums? If there is interest from governance circles in having the judiciary participate—and from judicial officials in gaining a deeper understanding of internet-related issues—where are we falling short? What opportunities for debate and conversation are we missing out on? Perhaps this post can, at the very least, serve as an invitation to the judiciary to join the governance conversations, starting by debating these basic questions regarding access to such spaces. By Victoria Abatte (@vicabatte) and Agustina Del Campo (@agustinadelcamp) Photo: @marvelous