2.3.2. Criticisms

It lies outside the scope of this thesis to investigate the many different substantive criticisms of particular Internet-related public policy initiatives that have been developed by bodies engaged in public policy governance. Even so, it should already be evident that the main problem confronting those bodies is the difficulty of making rules that are both globally consistent yet substantive in content.

This difficulty arises from the fact that on the Internet, national regimes can be transcended with a keystroke, potentially both rendering domestic laws ineffective against those physically outside the jurisdiction (as in the case of the hosting of prohibited content, the sending of spam or the commission of cybercrime by a foreign national), whilst conversely subjecting Internet users to laws of foreign jurisdictions to which they owe no allegiance as citizens (as illustrated by the Yahoo! Nazi memorabilia case and the Gutnick defamation case). Such jurisdictional problems, and related problems with enforcing international law in the absence of an effective international court system or police force, are discussed at Section 3.4.2.

Regulators recognise these problems. For example, in considering the application of Australia’s telecommunications regulation regime to VoIP (Voice over IP) telephony, the Privacy Commissioner stated in its Review of the Private Sector Provisions of the Privacy Act 1988 (Cth), “The consequences of not having a globally consistent approach is that information may end up in the country with the lowest privacy protection standards.”[1] It recommended the Australian Government initiate discussions through appropriate international fora about how to deal with major international jurisdictional issues arising from global reach of new technologies such as VoIP.[2]

Whilst these inherent difficulties may not in themselves provide grounds for criticism of bodies engaged in public policy governance by rules, those bodies can be criticised for a lack of coordination between the rules they develop, and conflicting international or domestic rules. For example, prior to the passage of the CAN-SPAM Act, many American States had their own spam laws, which more often than not were inconsistent with each other. For example, when sending unsolicited commercial email with adult content, senders might have been required to prepend “ADV:ADLT” to the subject line in one state and “ADV-ADULT” in another. Bizarrely, in Louisiana, there are two separate provisions, one of which requires the first-mentioned subject prefix[3] and the other the latter.[4]

One of the purposes of the IGF, at least as put forward in this thesis, is to avoid the sorts of discrepancies that result from an uncoordinated patchwork of regulation and other governance mechanisms as described in this section, by addressing Internet-related public policy at a global level through a network of all affected stakeholder groups, using an open, consensual process analogous to some of those employed in the standards development sphere of Internet governance.

The closest to such a process that has been encountered in this section is in the cooperative arrangements of domestic executive agencies within government networks such as the London Action Plan and the Virtual Global Taskforce. They are not so well illustrated by the harmonisation activities of domestic lawmakers, which are likely to be more restricted in scope and less inclusive of all stakeholders; for example as in the bilateral (or unilateral) process by which Australia was induced to “harmonise” its IPR laws with those of the United States in the Australia–United States FTA.

As for public policy development within intergovernmental organisations, the position is more complex. Traditionally, these have not been venues very inclusive of external stakeholders, nor have they operated at a speed adequate to respond to the development of public policy issues on the fast-paced Internet. However as Chapter 3 will discuss in detail, certain intergovernmental organisations are beginning to reform their processes to become more responsive and inclusive of non-governmental stakeholders.[5]

To remedy the remaining deficits of participation in intergovernmental policy development fora is another of the purposes put forward in this thesis for the IGF (and, parenthetically, a good reason why IPR and e-commerce should not be excluded from its mandate).[6]

But more significantly, the establishment of the IGF opens the door to a more coordinated approach to the development of public policy for the Internet than has characterised the ad hoc application of various mechanisms of governance to produce the measures described in this section.

Notes

[1]

Office of the Privacy Commissioner, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2005), 266. For a more in-depth analysis see Malcolm, Jeremy M, Privacy Issues with VoIP Telephony (2005) .

[2]

See also ACA, Regulatory Issues Associated with Provision of Voice Services Using Internet Protocol in Australia (2004).

[3]

Louisiana Revised Statutes, Title 51, Trade and Commerce, Chapter 19-C

[4]

Louisiana Revised Statutes, Title 14, Criminal Law, s106

[5]

See Section 3.4.1.1.

[6]

See Section 6.2.2.3.