Criminal law and the free and open Internet: tensions and ways forward in democratic societies

8 November 2012 - A Workshop on Openness in Baku, Azerbaijan


In recent years, Internet governance has come to face a paradox that some argue threatens the free, open and global nature of the Internet: this paradox lies in the tension between States' sovereign right to legislate the Internet on the one hand and the existence in many countries of criminal law that, when applied strictly, may run counter to freedom and openness on the other. While the presence of this tension in authoritarian countries has been acknowledged for long, it is increasingly clear that such situations are prevalent in democratic societies across the world as well. Yet despite its growing spread and importance, so far the latter phenomenon has not received much systematic attention. At the core of this complacence is our continued assumption that protections of and restrictions on freedom of expression are more or less similar in democratic countries across the world. But as the growing prevalence of the paradox we identified indicates, the differences are bigger than we often acknowledge: since they have different histories, cultures and social and political sensitivities, democracies, too, give evidence of considerable variation in the regimes of censorship and free speech that they have developed and that often enjoy considerable social acceptance by citizens. In the face of such variation, how to maintain the free, open and global Internet? In this workshop, we thus aim to shed greater light on this paradox and the challenges it brings for a free, open and global Internet specifically in the democratic world. More particularly, we will investigate: 1) Why does the Internet pose a challenge to the application of criminal law in different countries and what histories, sensitivities, circumstances give rise to this situation? 2) What pressures and challenges does such a situation create for Internet users and for intermediaries in these countries? When and how can such a situation become a threat to a free, open and global Internet more broadly? 3) What is the way forward? What role can Internet users and intermediaries play? Can global Internet governance frameworks/principles perhaps help to resolve the tension? Or if differences in regimes of freedom of expression and censorship are to be maintained, can this tension not be resolved at all?