Immediate reactions to the NETmundial 'outcome document' have been mixed. Many in civil society lamented the lack of strong commitment from the global community on net neutrality, the protection of privacy against mass surveillance and intermediary liability.
By Gabrielle Guillemin
Last week [23-24 April 2014], a key global multistakeholder meeting on the Future of Internet Governance, NETmundial, took place in Sao Paulo, Brazil.
Immediate reactions to the meeting’s ‘outcome document’ have been mixed. While Russia, India and Cuba took issue with “multistakeholderism” and the roles of stakeholders, many in civil society lamented the lack of strong commitment from the global community on net neutrality, the protection of privacy against mass surveillance and intermediary liability.
Some degree of disappointment was perhaps inevitable for the outcome document which was always meant to be the product of ‘rough consensus’, i.e. a lot of compromise and watered down language. Still, as the adrenaline of two days of intense discussions and negotiations ebbs away, it is time to take a step back and ask what has been achieved by the NETmundial process.
REASONS TO CHEER
The most remarkable aspect of NETmundial was its process and its promise of a different mode of making international law, based on rough consensus involving all stakeholders concerned. Unlike traditional international fora such as the UN Human Rights Council, NETmundial gave an opportunity to civil society, private actors, governments and Internet users to express their views and concerns in a highly open and transparent manner. In particular, there were over 30 hubs enabling remote participation and video streaming of the entire event, including the drafting sessions. Most importantly, each sector was given an opportunity to speak on an equal footing, with separate queues for each speaker and a time slot of 2 min each to comment on the outcome document. If nothing else, this procedural innovation was a huge success and demonstrated that such direct participation can work and remain effective.
For those who have been involved in Internet Governance discussions for many years, NETmundial also signalled a welcome move away from the Tunis Agenda and towards clear recognition of truly multistakeholder policy-making processes. Indeed, the term ‘multi-stakeholder’ was reiterated no less than 16 times throughout the outcome document whilst ‘multilateral’ wasn’t even mentioned. At the same time, the outcome document recognised that Internet Governance must be built on multi-stakeholder, democratic processes.
The outcome document is also to be welcomed for placing human rights at the heart of the Internet Governance agenda. This was an important victory for civil society advocates as several governments were initially opposed to the inclusion of human rights as part of the discussion at NETmundial and the human rights language of the initial draft outcome document fell below international standards on freedom of expression and privacy. ARTICLE 19 fought hard to insert language consistent with Article 19 of the Universal Declaration on Human Rights; it was therefore gratifying to see those changes included in the final document.
Other reasons to cheer included:
- a commitment to strengthen the Internet Governance Forum as a coordinating platform for global internet policy-making;
- a commitment to discuss the IANA transition as well as the relation between the policy and technical aspects of this transition with all stakeholders beyond the ICANN community;
- the recognition that technical standards must be consistent with human rights and allow development and innovation:
- the recognition that the Internet is a global resource which should be managed in the public interest.
As obvious as these points may sometimes seem, for anyone involved in political wrangling in the international arena, they were a great win for civil society. In particular, the recognition of multistakeholderism as a key mechanism for global policy discussions related to the Internet is in itself a remarkable achievement – one which holds enormous potential for future discussions of cybersecurity, cybercrime and intellectual property to name just three areas where the voice of civil society is frequently downplayed or downright absent.
REASONS FOR DISAPPOINTMENT
For all its positive elements, both NETmundial and its outcome document were not without faults. In particular, the drafting process became in some ways too informal by allowing individuals in the audience to ‘help’ with language, especially on the second day of the meeting. This proved to be deeply problematic because the vast majority of participants had understood that, whilst the drafting sessions were open to the public, they could not participate – and therefore influence the drafters – from the floor. Accordingly, the drafting session was initially only poorly attended and only those who happened to be in the room were in fact given an opportunity to provide ‘input’. This is effectively how the provision on intermediary liability was negotiated with only limited representation from civil society compared to the copyright industry or government. Moreover, the views of industry were represented by a lawyer in the drafting committee, which wasn’t necessarily the case of the other stakeholder groups. This is significant inasmuch as lawyers are usually trusted as the most able drafters; yet in this case, the lawyer in question was representing a particular group.
The same power imbalance was felt when the final text was discussed by the High Level Multistakeholder Committee. The overall impression was that governments largely held sway over the proceedings – which was unsurprising given that the Committee was made up of 12 government representatives, 12 multistakeholder representatives, of which 3 came from civil society, and 3 representatives from international organisations. In other words, governments made up half (and arguably more than half if international organisations are included) of the Committee.
Last but not least, several substantive issues were ducked or considerably watered down in the outcome document, much to the disappointment of some civil society groups, including ARTICLE 19. This included the failure to explicitly recognise net neutrality as a guiding principle of Internet Governance and weak language on both mass surveillance and intermediary liability (see Best Bits statement for more details).
Was it then naïveté on the part of civil society to express disappointment that these issues were not included in the final document? To some extent, yes as they are currently being furiously debated at domestic level and are far from settled. At the same time, the truth remains that these and much of the substantive issues in the Principles section reflect – rather than move beyond – the status quo in terms of international law.
Whilst the human rights section of the outcome document was generally to be welcomed, for instance, it ultimately repeated, by and large, well-established principles under international human rights law. The right to privacy is a case in point. The outcome document relied on the language of Article 17 of the International Covenant on Civil and Political Rights (ICCPR) without taking into account the interpretation of this provision by the UN Special Rapporteurs on freedom of expression and counter-terrorism, both of whom refer to the concept of ‘proportionality’ as a necessary element of the analysis of the compatibility of an interference with that right.
In some ways, the NETmundial process fell victim to its own success: the openness of the proceedings coupled with the strong support of the Brazilian government on net neutrality and surveillance in particular raised high expectations within sections of civil society. At the same time, the lack of consensus on substantive issues throws up questions as to the ability of the Internet Governance community to address such issues in a meaningful manner. Now that the Internet Governance community has set itself an ambitious agenda looking beyond the mere technical aspects of the Internet to address global policy issues, its discussions will need to move past discussions about processes.
THE WAY FORWARD
For all its weaknesses, should civil society disavow the NETmundial process? The answer is a clear and resounding NO. Rather than reject the process for its failure to deliver in some respects, civil society should work to improve the process so that it does not disadvantage any category of stakeholder. For instance, the terms of public participation in the drafting process should be clarified, and private communication with the drafters during sessions (e.g. via email or text messages) should be prohibited for the sake of promoting transparency. Further consideration should be given to the composition of High Level Mulstistakeholder Committees so that governments are restricted to the same level of representation as other stakeholder groups.
Other possible recommendations for a future multi-stakeholder process would be to ensure that the advisors to the drafting committees should have equivalent qualifications, for instance legal drafting skills if appropriate. Similarly, as human rights become central to the Internet Governance agenda, it is vital that the representatives of relevant human rights institutions take part in multi-stakeholder process. This includes, for instance, the UN, OAS, OSCE and African Special Rapporteurs on freedom of expression. Finally, civil society must learn to follow the process consistently, all through the end so as to avoid any gaps in representation when negotiations take place.
There is much to be celebrated in the NETmundial outcome document. There is also much to lament. As civil society asserts its place in international policy-making, it is worth recalling George Bernard Shaw’s observation that, “The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.” Let civil society be the unreasonable man in Internet Governance.
