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Regulation, responsibility and rights in a cyber century

We protect cyberspace and information technology through the implementation of security measures like firewalls, anti-virus applications, encryption and passwords. These measures extend from secure online purchases through to global markets and the safeguarding of classified information critical to national security. And yet, continuity of Internet regulation and community conduct continues to fall short of ensuring the protection of the users of this infrastructure from exposure to confronting or harmful information. 

We need better regulation to protect the users of this infrastructure as much as we protect the infrastructure itself.

Social media has drastically enabled instant and expansive communication between people, organisations and states. It provides a platform for expression in some of the most repressive countries in the world where activists, journalists and the average citizen can exercise their rights and hold authoritarian regimes or perpetrators accountable.

It also provides a platform for malevolent users to exploit the accessibility and reach of these systems for the dissemination of harmful or damaging content. With a 24-hour news cycle, and an estimated 5 billion people around the globe possessing a smartphone, control over harmful information is limited. On 15 March 2019, a deadly attack on two mosques in Christchurch, New Zealand was broadcast live on Facebook for 17 minutes. The live stream itself was viewed over 4,000 times before it was removed. This does not account for the many versions of the footage circulating the Internet with Facebook still hosting footage six months later, despite the platform’s attempt to remove it. 

We are approaching a time where Instagram will restrict the promotion of weight loss campaigns to those only over 18 but still struggle to tackle the dissemination of extremist content. Shutting down social media accounts of violent extremists has been a key feature of government efforts worldwide, but regulation needs to go further in restricting the capacity for this content to circulate directly from the perpetrator or second hand through news channels. 

Verified news channels and individuals, such as qualified journalists or public authorities, should lead the way in how we operate online. The media, for example, are heavily regulated when it comes to reporting on mental illness; public authorities, likewise, ensure television content meets a code and standard for viewing by working within a frame of ethics “for the general welfare of society.” Regulation needs to extend to cyberspace as this is merely another platform.

The general welfare of a democratic society is upheld by its national security. ‘National security’ has been broadly debated as a contested concept, translating into practice with poor and ambiguous, even absent, definitions leading government strategies globally. Sectors that are often attributed to the concept – economics, politics, the military and the environment – are further complicated by the individual, national and global levels at which they intersect and operate. 

This multidimensional complexity prevents an accurate, universally applicable definition from forming and taking hold; what one state may view as threatening may be historically or culturally conditioned within another. So how do we determine Internet regulation that promotes welfare on the basis of a poorly defined concept and where tension exists between domestic and international laws? We look to the individual.

“I have a right to freedom of expression!”

Being a participating citizen in a democracy is important, and for states that are developing the Internet has provided everyday citizens with the opportunity to shape policy as “citizen journalists”. But even in a democracy, not all rights are guaranteed.

Under the International Convention of Civil and Political Rights (ICCPR), some rights, such as the right to freedom from torture or slavery, are considered an absolute right; they cannot be restricted or limited under any circumstances. 

Then there are rights that fall into the category of “permissible limits”. Rights within this category may be restricted under the condition of what is considered reasonable, necessary and proportionate in pursuit of a legitimate objective. Legal constraints to such rights should comply under the International Covenant on Economic, Social and Cultural Rights and must be “compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”

Article 19 of the ICCPR, which states, “Everyone shall have the right to hold opinions without interference,” falls within the category of rights with permissible limits. The notion of freedom of expression and opinion here includes “the right to seek, receive and impart information and ideas of all kinds.” However, restrictions to Article 19 may be enforced “for the protection of national security or of public order…health or morals”. That is, to promote the general welfare of society. This includes freedom from harmful, violent or misleading information that circulates online.

If the notion of security was awarded to the individual by an authority according to the establishment of a ‘social contract’, then national security must concern itself with the protection of individuals as much as the protection of territories, its economy and infrastructure. And yet, we navigate an Internet teeming with disinformation, propaganda and extremist ideologies that mobilise, recruit, promote and broadcast against the community standards, international conventions and security that have shaped successful and functioning democratic societies and liberal international institutions since their conception. Stronger cooperation between the public and private sector is essential in making this work. Individuals also have a responsibility in how the operate this space.

Regulation of cyberspace should also reduce the capabilities social media platforms provide. Removing opportunities for these platforms to be exploited by extremists, such as allowing live streaming for all, should be restricted to those who operate within a code of ethics, such as qualified journalists. Permissible limits work in removing the opportunity and incentive for extremists to exploit journalism or social media as a platform for glorification and idolisation. This is within the interest of the public’s welfare. 

This is not a proposal for restriction of press freedoms, nor is it an argument suggesting further restrictions on civil liberties through denial of access to information. It is a proposal to shape information; a recommendation to reframe our understanding of “within the public’s interest” to “within the interest of the public”. We need better regulation of cyberspace at the individual, private and public levels of society that ensures the general welfare across all platforms and reduces the ability for malevolent users to exploit it.

Madeleine Nugent is the Cyber Security Fellow for Young Australians in International Affairs. 

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