“Foresight is failing lawyers miserably. We’re rules based and text based; the internet leaves us bewildered,” said Pria Chetty, founder of the technology and innovation law firm Chetty Law.
Chetty was speaking at a Critical Thinking Forum hosted by the Mail & Guardian and Konrad Adenauer Stiftung in Sandton on Tuesday in which panelists debated internet regulation.
This bewilderment with the internet stems from its rapidly evolving nature, said Chetty.
Chetty said there have been attempts by various industries to fix outdated legislation, such as copyright laws, and make them more applicable in the online environment.
With copyright for example, one way to do this is to broaden the existing definition so that it applies to all formats, “even formats that we haven’t conceived of yet”, said Chetty. But, she pointed out, policing even relevant regulations would be difficult if law enforcement authorities were not adequately trained.
She maintained however that that there is a place for regulation, even if it is just playing catchup.
Markus Brauckmann, head of the regional media programme of Konrad Adenauer Stiftung, pointed out that lawmakers would always be playing catch-up in this regard. “The usual process of passing a law in a democratic country is somewhere between six and 18 months. By that time the internet has moved way beyond this deliberation. How do we deal with that?” he asked.
Conflicting interests
For Brauckmann, technology also does not provide an answer to the question of regulation. “They’re always a step ahead. Call them purists, pirates of fundamentalists, they know a lot more about [technology] than we do. They are way ahead in the game and that’s part of the equation too,” he said
Tensions between conflicting interests also muddy the waters when it comes to internet regulation.
Brauckmann pointed out that in the internet environment, there is a conflict between global and national interests. “We have political players who make resolutions but we also have private sector players. Google and Facebook are not accountable to any body of law or any elected parliament,” he said.
Chris Roper, the M&G‘s online editor, pointed out that it is not uncommon for the lines between state and corporation to be blurred in the online environment. “The fact that the United States government can tell Twitter to keep its servers up so Iranians can use the service shows that the dividing line between private companies and government institution can always be blurred,” he said.
Roper also said that when considering regulation one has to be conscious of how the internet spans local and global bounds. “In our society we can put up a Prophet Muhammad cartoon and it’s protected. But in Saudi Arabia, where that same internet is, it’s not. You can never legislate on that [global] level, you can only legislate on a local level. That’s one of the major disruptive attributes of the internet,” he said.
A framework for legislation
Chetty said that in theory there should be overarching international layer of regulation, with bodies that deliberate on standards about how to solve real issues and policy questions. This should flow into the national context and in turn into legislation.
“Below this, there should be a self-regulatory mechanism, a body of people who say: this is my vested interest in the field and how I will propose my own code of practices,” she said. The final layer would be technology layer, in which people use technology to protect their interests.
But she conceded that between all these tools stakeholders remained at a loss as to where the answer to internet regulation lies.