Legal aspects of Internet Governance

Photo: Ricardo Matsukawa/NIC.br

The advent of the Internet revolutionized the manner through which human interactions occur, having it happen mostly online. Information, before concentrated in mass communication means, went through a process of decentralization, diversification and democratization, making ways for the user not only to consume, but to also interact with the information. That way, the World Wide Web became a mirror of social relations.
In no way this “digital revolution” wouldn’t influence the legal sphere, revolutionizing the interpretation of Law when it comes to online human interactions. Then rises the debate: should the already established general principles of Law be applied to the human interactions on the Internet, or should they be completely reinterpreted, breaking through the traditional legal paradigms with a new specific kind of regulation?
The supporters of the first school of thought believe that the Internet is nothing but another media for expression, that there was no revolution. The human interactions would be, therefore, the same whether they’re done through the Internet or not, the only new modification being the mean and the notion of answering speed in these interactions.
The north-american judge Frank Easterbook, following this doctrine, noted that there is no such thing as a “cyberspace Law”, in the same way as there is no “horse Law” or “elevator Law”. In other words, the surge of new revolutionary technologies does not necessarily need a specific legal regulation, with the original Law principles still perfectly applicable. Brazilian jurisprudence, mainly from the Supreme Federal Court, agrees. In a decision about the divulgation of child pornography on the Internet, Minister Sepúlveda Pertence voted for the indistinctness concerning the medium in which the crime was committed: whether it’s online or not, the same principles apply.
Namely, in this school of thought, human rights and their particular offenses are the same whether inside or outside the network. Therefore, the Internet didn’t create new rights to be preserved in a specific manner.
The second doctrine argues that the Internet is the main evidence of a digital revolution, which impacts the social organization in such a way that it’s comparable to or even greater than the changes caused by the Industrial Revolution. Professor Manuel Castells, for instance, believes the uprising of an “informational capitalism”, which has information as the material and technological base of the economic activity and social organization. Considering this, the need to reinterpret Law is imperative. Analogically, the idea of Computing Law would be equivalent to the idea of Corporate Law.
The Internet’s influence on human life is irreversible. Sooner or later, all branches of Law will have to deal with Internet matters. There are eight points of online human interaction which demand an urgent and specific legal analysis. Those points are: a) regulation of informational assets, b) protection of personal data, c) legal regulation of the Internet, d) intellectual property, e) crimes in computing, f) digital contracts, g) labor in computing and h) probative value of information carriers.
It’s a fact that the majority of Law interpreters still aren’t sufficiently familiarized with the Internet, particularly the Judiciary. Positive signs, however, have been surfacing. In the notorious Cicarelli case, the decisions of both the district and higher courts have highlighted the inefficiency of traditional legal institutions in regulating and guarding online human interactions.
The role of Law is to execute Justice amongst men, a foundational fator in social life and in individual and common accomplishment. It’s up to us, Law interpreters, to offer solutions for concrete problems, highlighting the urgent need to comprehend social phenomena. The conclusion is a pondering question: should this new reality adapt to the old Law or should the old Law adapt to the new reality?