Essay Droit Anglais

- The internet today: a way to process and express opinions in a new way

One of the vital aspects of organizing global society has been individual lib- erty. With the introduction of the Internet, traditional notions of liberty are challenged. The global reach of information transfer requires examining liberty in its new form—“cyberliberty.” Cyberliberty expands across all borders, affects all nations, and as of yet, has not been defined by any nation.

- Cyberliberty is generally considered, at least by those on the Internet, to be a particular application of free speech rights.

- Definition of cyberliberty: Ian Clark (creator of  FreeNet program) defines cyberliberty as the protector of the free flow of information. His definition of cyberliberty revolves around the basic precept that freedom of speech is “generally considered one of the most important rights any individual might have.”

-  Many international organizations cite the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights as a basis for this theory.120 In no place, however, is this contemporary understanding more apparent than in the United States. For example, civil liberties groups have successfully challenged the Communications Decency Act (CDA), which intended to limit access to pornography by minors, and have sued library officials who have restricted access to such Internet content. = some citizens claim that the internet legislation are RESTRICTING their freedom, not PROTECTING them

- Problems with territoriality and the globalisation aspect of internet:

- For nearly a decade, legal works has focused on rationalizing and jus tifying jurisdictional schemes to control the Internet. While attempting to con trol the spread of unpopular political expression, pornography, e-commerce, and, most recently, terrorism, states have failed to recognize one of the important philosophical cornerstones of this new dimension. In the hurried actions of states to gain control of a space without a defined territory, they have attempted the impossible: to control the Internet through the application of domestic laws without regard to the glo- bal nature of the Internet. (quote from Lessig)

- Hate speech online can be itinerant. Even when content is removed, it may find expression elsewhere, possibly on the same platform under a different name or on different online spaces. If a website is shut down, it can quickly reopen using a web-hosting service with less stringent regulations or via the reallocation to a country with laws imposing higher threshold for hate speech. The itinerant nature of hate speech also means that poorly formulated thoughts that would have not found public expression and support in the past may now land on spaces where they can be visible to large audiences.

Globalization” refers to the increasingly “com plex, dynamic legal and social processes” occurring throughout the world. It is the development of a global mindset that challenges the traditional political, so cial, and economic characteristics of nations and has led to the “deterritorializa-tion and reterritorialization of [vast] policy spaces.” Many of the changes and challenges attributed to globalization rely on the exchange of information throughout the world, making “the flow of ideas across national borders” a key agent of globalization.4 Due to the increasing availability of personal computers and software, the Internet provides the ideal forum for information transfer. The Internet engenders “the notion of distributed power: decentraliza- tion, openness, possibility of expansion, no hierarchy, no center, no conditions for authoritarian or monopoly control.”

The primary jurisdic tional problem that arises in relation to the Internet as a platform of globalization is one of prescriptive jurisdiction. It is the application of a single state’s laws to Internet content that gives rise to complication. For example, may State A prohibit citizens of State B, located in State B, from posting advertisements for a specific product on the Internet simply because State A prohibits the sale of this same product?

A firm basis for jurisdiction to prescribe is required to justify the infringe- ment of sovereignty that would accompany regulation of Internet content. As stated in the Permanent Court of International Justice’s opinion in the Lotus case, “a state . . . may not exercise its power in any form in the territory of another state,” and jurisdiction “cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a con- vention.” (Lotus case) 

- Actual jurisdiction:

International law recognises three sources of prescriptive jurisdiction that have been applied to internet information transfers: the nationality principle, the subjective territoriality principle and the objective territoriality

      - The nationality principle has been described as supporting the jurisdiction of a nation to prescribe law “with respect to . . . the activities, interests, status, or relations of its nationals outside as well as within its territory.” This principle is based on the assumption that a person grants the country of which he is a national the right to regulate his conduct, no matter where located. This principle is uncontroversial in international law.

     - Often referred to as the subjective territoriality doctrine, the ability of sov ereign states to exercise jurisdiction over property, persons, acts or occurrences within their own territory is a fundamental principle of international law

     - In recent years, the principle of jurisdiction based on territoriality has been expanded beyond the traditional bounds of the subjective territoriality doctrine. Under the objective territoriality principle, the territorial basis of jurisdiction has in some cases been expanded to encompass actions that, although not occur ring within a state’s territory, have actual or intended effects within that state’s territory. It is generally recognized that the action must have a sufficiently strong link to the state’s territory in order to justify jurisdiction. In addition, the effect must be “direct, foreseeable, and substantial” within the territory

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