Space for Law

The creation of the Internet was dissociate from state norms. At the time, it was considered a world free of the structures of power of the States or of the rules that the Law imposed. This position is clear in John Perry Barlow’s Declaration of Independence of Cyberspace, which also presents the idea of the Internet’s self-regulation, so that the codes would be responsible for governing the new community.
What could not be measured at the beginning of the new technology was the depth it would assume in the human life. The idea that it would be a mere choice to be in cyberspace did not embrace the almost omnipresence it has achieved in contemporary times. This presence, it is worth noting, is not limited to the huge number of users of smartphones, tablets or social networks. It also links to surveillance systems, private and state-owned databases that put the individual on the network even without their knowledge or by often debatable forms of consent.

Sensitive areas

Over time, the dissociation between what happens on the Internet and real life is becoming increasingly unlikely. The effects of cyberspace are not restricted to it and this, not infrequently, calls legal protection. These are relationships that are already supported by the Law and can not be ignored because they are inserted on the Internet. They involve several areas – as many as possible virtual interactions. Some examples include e-commerce and electronic contracts, as well as personality rights.
The economic importance of e-commerce is widely recognized. In addition to controversial issues relating to taxation, it also creates sensitive consumer relations, clauses that may, ultimately, be invalidated when understood as abusive. In addition to consumption, many other electronic contracts are increasingly widespread. Although in some cases only the form changes, without news on the content, that reproduces, in practice, an agreement made in the analogical context, there are also other news. One of them is the digital product (or service), which is embedded in virtual reality, as is the case of cloud computing.
Another example are the personality rights, which must also be understood in cyberspace, because it does not mean renunciations. Violations are not allowed in any context and defamation, misuse of images, offenses to memory, as well as restrictions on individual freedoms are facts that may occur through the Internet, or use it as a mechanism, and that do affect legal issues.

Available Mechanisms

In the book “An Introduction to Internet Governance“, Jovan Kurbalija points out that the difficulties of using the legal mechanisms for Internet relationships does not mean that they have no turn in that space. The slowness of the legislative process, the jurisdictional challenges and the difficulties of cooperation are not enough to discard them from the cases in which the law must act, especially with regard to fundamental guarantees. So, even if facing difficulties, legal sources can not be ignored.
In this context, domestic laws, which suffer with the over time that democratic processes demand and can often be outdated, need more fundamental content, which establish minimum standards and determine guidelines. The Brazilian Civil Rights Framework for the Internet  is an example of legislation that can base Internet governance in a successful way, either through the elaboration by public consultation, which contemplates the multi-sectorialism of the Internet, or by the content that does not make it so susceptible at time.
Also at the national level, jurisprudence needs to deal with factual news and few legal and precedent references, in addition to adapting existing ones. This exercise must take into account the democratic standards of the rule of law. Jurisdictional challenges, which still require solutions, can not open space, for example, to deny justice or justify non-compliance with due process of law or adversarial procedure.
Although it makes sense that the Internet as a global space could be governed by international law, consensus on the subject is not easily delineated. The difficulty of enforcement adds to the fact that Internet governance can not be restricted to states and international organizations and must, in fact, reproduce the multi-sectoralism that characterizes it. This does not imply, however, that international standards should be removed, such as in cases of violations of human rights or guaranteeing access to justice.
The application of these mechanisms can not disregard the nature of the Internet and should seek to adapt it. Difficulties, however, can not make the Internet a space of exception, in which users are at the mercy of state authorities or private companies. There must be place for the guarantees defined by Constitutionalism nowadays. The rule of law must also exist on the Internet. It needs to exist or the rules of the game will be against – all of – us.
In the “Space for Law” series, we will deal with issues related to the application of legal mechanisms to the Internet and alternatives to its legal governance. In the next post, the focus will be on the lessons of Private International Law for cyberspace.