Westphalian Sovereignty and the 4th Industrial Revolution: In Search of Legitimate Governmental Control Over Online Content

Abstract

This contribution deals with state sovereignty over Internet content regulation at the eve of the 4th industrial revolution. The author argues that the territorial state has taken a central role in regulating Internet content spread on international Internet platforms. The increasing body of state regulation has led to conflicting norms, authorities, and interest. Some state regulation has extraterritorial effects limiting the sovereignty of other states to regulate internet content to their liking. This raises questions about what ‘sovereignty over the Internet’ means. This contribution explores what the role of the state should be in regulating Internet content. Departing from what is often referred to as Westphalian sovereignty, the author argues that this conception of sovereignty offers clarity of what regulation is authoritative. Westphalian sovereignty offers a territorial delineation of rules and authority. Westphalian sovereignty also enables political communities to establish their own rules appropriate to their situation without external interference. Westphalian sovereignty, in other words, offers a pluralistic account of Internet content regulation. On the Internet, a clear delineation in different jurisdictions is, however, not easy to be made. Therefore, the author discusses seven different models of Internet content regulation that take the global nature of the Internet into account. The models discussed vary from no state intervention at all to far-reaching state control over the Internet resulting in fragmentation of the Internet in local networks to ensure the effectivity of state regulation. In discussing these models, the relationship between different states is discussed but also the relationship between state- and private actors require attention. The author reviews propositions to bring Internet content regulation under the control of international organisations such as the United Nations. As this contribution shows, human rights law offer only so-far direction in regulating Internet content. The legal and cultural norms on what is perceived acceptable on the Internet differs between jurisdictions. Fragmentation of the Internet in national networks is the ‘most Westphalian’ solution to conflicts arising between regulation of different states. Requiring Internet platforms to ‘align’ their policies to the jurisdiction where they offer their services to users offers the best trade-off between the unique tenets of Westphalian sovereignty and the specific features of the Internet. There is, however, a downside. Different states may enact different—and even conflicting—norms which may lead to a patchwork of legislation. Because Internet platforms often issue their community guidelines internationally, it is almost impossible for Internet platforms to abide by all national laws. In regulating Internet platforms, the author suggests that cooperation between states—harmonising the law that regulates Internet content—may offer a solution. This contribution also emphasises that state laws should not be enacted lightly and that it must be questioned how state regulation impact the sovereignty of other states.