This article critiques key proposals of the United Kingdom’s “Online Harms” White Paper; in particular, the proposal for new digital regulator and the imposition of a “duty of care” on platforms.... Show moreThis article critiques key proposals of the United Kingdom’s “Online Harms” White Paper; in particular, the proposal for new digital regulator and the imposition of a “duty of care” on platforms. While acknowledging that a duty of care, backed up by sanctions works well in some environments, we argue is not appropriate for policing the White Paper’s identified harms as it could result in the blocking of legal, subjectively harmful content. Furthermore, the proposed regulator lacks the necessary independence and could be subjected to political interference. We conclude that the imposition of a duty of care will result in an unacceptable chilling effect on free expression, resulting in a draconian regulatory environment for platforms, with users’ digital rights adversely affected. Show less
Buitelaar, T.; Larik, J.E.; Matta, A.; Vos, B. de 2016
Executive Summary In June 2016, High Representative Mogherini presented the EU’s new Global Strategy on Foreign and Security Policy (EUGS) to the European Council. With the Strategy now... Show moreExecutive Summary In June 2016, High Representative Mogherini presented the EU’s new Global Strategy on Foreign and Security Policy (EUGS) to the European Council. With the Strategy now finalized, attention needs to turn to its implementation in an environment mired by crises both within Europe and the wider world. In September 2016, The Hague Institute for Global Justice and Europe House—the European Parliament Information Office and the Representation of the European Commission in The Netherlands—organized an expert meeting and a public panel discussion, which inform the present document as a first appraisal of the Global Strategy. Focusing on three areas of particular salience in EU foreign policy—the EU as a security actor, developing rules-based global governance in new areas, and the ‘joined-up’ approach in pursuing the UN’s Sustainable Development Goals (SDGs)— the following recommendations for the implementation of the EUGS can be made: The EU as a security actor The EU needs a pragmatic and flexible approach in order to solve the crises around Europe and to improve its credibility in the short and long term, for example by using ad hoc coalitions. Moreover, a possible withdrawal of the United Kingdom from the EU could open up political space for deepened defense cooperation. The EU would need to find ways to make use of this political space in order to generate political will in the capitals for deepening defense cooperation. More broadly speaking, the EU should devise plans to connect with its citizens as a security actor and communicate the message that EU defense cooperation tangibly benefits the security of all citizens. Developing rules-based global governance Using the area of cyber governance as an example given its cross-cutting importance, the EU should fully embrace the role of ‘agenda-shaper, connector, coordinator and facilitator within a networked web of players’ by investing in multistakeholder initiatives and, together with the Member States, showing coordinated political leadership in this area. The EU, furthermore, needs to take its internal normative innovations (such as the “right to be forgotten”) to the global stage, where they can serve as inspiration to other actors. It should also use regional approaches and coalitions of like-minded countries as building blocks for working towards a global consensus. In addition, the EU should bolster its credibility as a cyber power by capacity-building, both within the EU Member States and third countries, to fight criminal activities and strengthen cooperation between law enforcement agencies. Capacity-building as part of a ‘joined-up approach’ in the case of the SDGs For SDGs to be progressively realized through ‘joined-up’ EU action, they need to be translated and concretized into measurable goals, which should be pursued through already existing policies and strategies and be taken into account during the framing of new ones. Moreover, the EU should invest, in tandem with the Member States, in communicating to the public that the SDGs are a global commitment with implications, both positive and negative, in the daily lives of citizens. For the EU, the most important next step is to translate the EUGS into prioritized and coherent sub-strategies with a view to maintaining the SDGs as a central element of the follow-up of the EUGS. The Global Strategy will remain the core guidance for EU external action for years to come. However, the period until the first yearly progress report in June 2017 will be crucial for establishing the traction and first concrete results produced by the Strategy. As the calendars of the EU institutions and Member State policymakers are filling up with more milestones for its implementation, existing sectorspecific strategies will be updated and new ones developed. Implementing the Global Strategy will be a momentous endeavor by any standard, both for the EU and its Member States. How well they will work together, use their resources, build political momentum and voice their common message will ultimately determine the role of the EU in the world. Show less
This article argues that it is possible—given the right resources and expertise—to hold individual non-state actors responsible for violations of international humanitarian law (also known as ‘the... Show moreThis article argues that it is possible—given the right resources and expertise—to hold individual non-state actors responsible for violations of international humanitarian law (also known as ‘the laws and customs of war’) perpetrated with cyberweapons. It describes jurisdictional elements of violations of the laws and customs of war as well as points that prosecutors and investigators must consider when planning investigations of serious violations of international humanitarian law perpetrated in cyberspace. It addresses how certain theories of individual criminal responsibility for war crimes apply to offences committed by non-state actors during cyberwarfare and identifies particular evidentiary challenges arising from the particular qualities of cyberspace and cyberweapons. Individual accountability for war crimes perpetrated during cyber operations requires new thinking about the application of legal principles and theories during cyber conflict. Show less
Cyberspace permeates global social and economic relations in the 21st Century. It is an integral part of the critical infrastructure on which modern societies depend and has revolutionized how we... Show moreCyberspace permeates global social and economic relations in the 21st Century. It is an integral part of the critical infrastructure on which modern societies depend and has revolutionized how we communicate and socialize. The governance of cyberspace is, therefore, an indispensable component of global governance, and a testing ground for new models of cooperation that could be adapted for effective governance in other areas. The purpose of this policy brief is to provide policymakers with insights on how to improve the effectiveness of cyber governance institutions and processes. These insights could also inform efforts to improve global governance institutions and processes more broadly. The brief considers two principal questions: Who should govern cyberspace, and how? In response to the former question, the authors review multistakeholder models of governance and provide recommendations for their improvement. These include: greater transparency of decision-making processes, with a prohibition on vetoes; dedicating financial resources to the empowerment of disadvantaged stakeholders; and allocating leadership positions in an equitable manner. In response to the latter question, the authors assess formal and informal approaches to governance in cyberspace, concluding that cyberspace should be governed through a combination of both. That is, a flexible, incremental and sectoral approach to strengthening the rule of law in cyberspace through international treaty-making should be complemented by efforts to build trust and consensus through the development, diffusion and institutionalization of norms for responsible behavior in cyberspace, as well as related confidence- and capacity-building measures. Taken together, these recommendations aim to foster common understanding and enhance security and the rule of law in cyberspace. This policy brief draws on The Hague Institute’s work on the Global Governance Reform Initiative (GGRI) project and the Global Conference on Cyberspace (GCCS), hosted by the Kingdom of the Netherlands in April 2015. The GGRI project is a collaborative effort between The Hague Institute, The Ministry of Foreign Affairs of the Netherlands, and the Observer Research Foundation (New Delhi). Show less
