CHAPTER 2: Overarching Trends

Sub-Chapter 2.3.3: When territoriality is irrelevant

Some recent laws are less focused on territoriality for jurisdictional purposes. We include some illustrative examples (listed below). Are there others we should include?

1. 2018 US CLOUD Act;
   
   
2. the EU’s Proposal for a Directive of the European Parliament and of the Council laying down harmonized rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings;
   
   
3. the EU’s Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters;
   
   
4. Article 3(1) of the EU’s General Data Protection Regulation.

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Sub-Chapter 2.4.1: Blurring of categories (of speech/expression)

In discussing different categories of expression, we list six (6) categories (see below). Are there others we should include?

The six types of expression:

1. Expression that constitutes an offense under international law and can be prosecuted criminally
   
   
2. Expression that constitutes an offense under national law and can be prosecuted criminally
   
   
3. Expression that is not criminally punishable but may justify a restriction and a civil suit
   
   
4. Expression that is not against applicable law, but violates relevant terms of service
   
   
5. Expression that is neither against applicable law, nor relevant terms of service, but seen by some as offensive
   
   
6. Expression that is entirely uncontroversial

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Sub-Chapter 3.1.1: Extremism, terrorism and hate speech

In the context of extremism, terrorism and hate speech, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should include?

1. International League Against Racism & Anti- Semitism (LICRA) v Yahoo! Inc and Yahoo! France [2000] Tribunal de Grande Instance de Paris (County Court of Paris)
   
   
2. Germany’s Enforcement on Social Networks Law of 2017 (or Netzwerkdurchsetzungsgesetz, NetzDG)
   
   
3. Zambia’s announced laws to regulate social media used in order to fight against hate speech, identity theft and pornographic content
   
   
4. Israel’s efforts in combating the spread of terrorist content with internet platforms having partially or fully complied with 1,400 content removal requests since 2016.
   
   
5. The EU’s new rules to address online terrorist content.
   
   
6. The International Covenant on Civil and Political Rights (ICCPR),
   
   
7. The International Convention on the Elimination of all Forms of Racial Discrimination
   
   
8. The US Department of Justice’s new hate crimes website.
   
   
9. Twitter’s consultation seeking input on its proposed amendment to the Twitter Rules (the Rules) to address dehumanization.
   
   
10. The European Court of Human Rights non-binding fact sheet regarding hate speech.
    
    
11. Indonesia’s announced launch of an automated Internet moderation system to detect and restrict access to extremist and adult content
    
    
12. Bilateral and multilateral statements of commitments to address the criminal and extremist use of the internet, including the French-British Action Plan on internet Security (2017), Five Country Ministerial Statement on Countering Illicit Use of Online Spaces (2018) and G7 Security Minister’s Commitment Statement (2018), which refers to the prevention of violent extremism and terrorist use of the internet.
    
    
13. The Global Internet Forum to Counter Terrorism formed by Facebook, Microsoft, Twitter, and YouTube to formalize and structure how these companies work together to curtail the spread of terrorism and violent extremism.
    
    
14. The EU Commission, together with Facebook, Microsoft, Twitter, and YouTube, presented a Code of conduct on countering illegal hate speech online.
    
    
15. UNESCO published a report titled Countering Online Hate Speech in 2015.
    
    
16. In 2015, freedom of expression group ARTICLE19 published a ‘toolkit’ providing guidance to help explain and effectively counter hate speech, while protecting the rights to freedom of expression and equality.
    
    
17. In 2013, the Australian Human Rights Commission published its Background paper: Human rights in cyberspace.
    
    
18. Following a series of expert workshops organized by the Office of the High Commissioner for Human Rights (OHCHR), the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence was adopted in 2012.
    
    
19. The Council of Europe issued a General Policy Recommendation on Combating the Dissemination of Racist, Xenophobic and Anti-Semitic Material via the internet in 2000, and in 2003, it issued an additional protocol to the Convention on Cybercrime that addresses online expression of racism and xenophobia.
    
    
20. An initiative of the UN Counter-Terrorism Committee Executive Directorate, ‘Tech Against Terrorism’, aims to support the technology industry, including smaller technology companies, in combatting terrorist exploitation of the internet. It has launched a ‘Knowledge Sharing Platform’ to help smaller technology companies promote the sharing of good practices that strengthen responses in this area.
    
    
21. There are also various UN Security Council Resolutions that seek to address the use of the internet for terrorist purposes.

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Sub-Chapter 3.1.2: Defamation

In the context of defamation, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should include?

1. Dow Jones and Company Inc v Gutnick [2002] HCA 56
   
   
2. Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3
   
   
3. Google’s withdrawn appeal in a case in Mexico, where the defendant, Morales, sued Google for refusing to remove a defamatory blog hosted on Google's Blogger.com platform.
   
   
4. Some cases relating to auto-completed search terms may amount to defamation (cases from –Japan, Australia, Hong Kong SAR, and Germany)
   
   
5. The Office of the Privacy Commissioner of Canada issued its Draft Position on Online Reputation as part of its work on ‘Reputation and Privacy’ – one of its strategic privacy priorities for 2015-2020.
   
   
6. On November 10, 2018, it was reported that Facebook had rejected the government of Singapore’s request to remove a post of an online article critical of the government. The country's Law Ministry reportedly pointed out that Facebook declined to take down a post that is clearly false, defamatory and uses falsehoods to attack Singapore, and has indicated that the case showed the need for regulation on misinformation online.
   
   
7. In October 2018, the Council of Europe published its Draft study on forms of liability and jurisdictional issues in the application of civil and administrative defamation laws in Council of Europe member states.
   
   
8. The Law Commission of Ontario is undertaking a major project focused on defamation law in the internet age: “The project is examining the underlying purpose and function of Ontario’s defamation laws and how defamation law should be updated to account for ‘internet speech,’ including social media, blogs, internet platforms and digital media.” The project’s Consultation Paper, released in November 2017, included a section on jurisdiction and choice of law.
   
   
9. The Council of Europe’s Declaration by the Committee of Ministers on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation was adopted on July 4, 2012.

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Sub-Chapter 3.1.2.1: Geographical scope of the right to reputation

In the context of defamation, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should include?

1. Dow Jones and Company Inc v Gutnick [2002] HCA 56

2. Cases C-509/09 eDate Advertising GmbH and Others v X and Société MGN Limited and C-161/10 Martinez and Martinez

3. Case C-68/93 Fiona Shevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd v Presse Alliance SA

4. Case C-194/16 Bolagsupplysningen OÜ Ingrid Ilsjan v Svensk Handel AB.

5. Case C-18/18 Glawischnig-Piesczek

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Sub-Chapter 3.1.5 Fake News and misinformation

In the context of fake news and misinformation, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should included?

1. Freedom House’s Freedom on the Net 2017 report
   
   
2. A 2018 study by the Reuters Institute for the Study of Journalism, based on data covering nearly 40 countries and five continents
   
   
3. On December 7, 2018, it was reported that officials from India’s Ministry of Electronics and Information Technology had met with Facebook representatives to trace the origins of misinformation that spread through Facebook-owned messaging platform WhatsApp and led to violent outbursts.
   
   
4. On October 26, 2018, Facebook announced that it had removed 82 pages, groups and accounts that were linked to Iran and spread misinformation on Facebook and Instagram. These accounts were followed by more than 1 million users: “The Page administrators and account owners typically represented themselves as US citizens, or in a few cases UK citizens – and they posted about politically charged topics such as race relations, opposition to the President, and immigration.”
   
   
5. In July 2018, it was reported that members of Russia's governing party, United Russia, had submitted a bill that proposes holding social networks accountable for ‘inaccurate’ comments that users post. In particular, the law would reportedly require websites with over 100 000 daily visitors to take down factually inaccurate posts or face fines of up to 50 million rubles (about 800 000 US dollars).
   
   
6. On May 9, 2018, The Gambia's Supreme Court ruled that the prohibition of ‘false publication and broadcasting’ was constitutional, upholding the illegality of spreading false news online, which was introduced as part of the Information and Communications Act 2013. On May 10, 2018, The Gambia's Press Union Secretary General Saikou Jameh stated that the ruling was a striking departure from a recent ruling by the Economic Community of West African States (ECOWAS) court, which had ruled that the rules violated the rights of journalists and called on the Gambian government to immediately repeal them.
   
   
7. In 2018, Malaysia introduced its Anti-Fake News Act. An attempt to repeal the controversial law was rejected in September 2018.
   
   
8. Through its Computational Propaganda Research Project, the Oxford internet Institute has been investigating the use of algorithms, automation and computational propaganda in public life since 2012. They have published numerous reports.
   
   
9. In 2018, Freedom House published its Internet Freedom: Election Monitor.
   
   
10. The Belfer Center for Science and International Affairs, Harvard Kennedy School published an analysis of how Sweden protected its 2018 elections.
    
    
11. In 2018, the European Union developed, and several major internet companies signed up to, a Code of Practice on Disinformation. The signatories commit “to deploy policies and processes to disrupt advertising and monetization incentives for relevant behaviours, such as misrepresenting material information about oneself or the purpose of one’s properties.”
    
    
12. Egypt introduced a new law in 2018 that, among other things, tackles ‘fake news’. Article 7 of the Anti-Cyber and Information Technology Crimes Law gives the competent authority in charge of investigating cybercrime “the right to shut down websites that spread ‘fake news’ against the Egyptian state or threaten ‘national security.’” The law has an extraterritorial effect, insofar as it authorizes the competent authority “to shut down (not block) foreign websites, though it is unclear how this would happen in practice.”

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Sub-Chapter 3.1.5.1: Attacks on democracy [in the broader context of fake news and misinformation]

In the context of attacks on democracy, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should include?

1. United States of America v Netyksho et al (Case 1:18-cr-00215-ABJ )
   
   
2. New Knowledge. The tactics and tropes of the Internet Research Agency
   
   
3. Oxford Internet Institute. Computational Propaganda Research Project. The IRA, social media and political polarization in the United States, 2012-2018
   
   
4. During the Brazilian 2018 presidential election, there were multiple reports of misinformation spreading via WhatsApp, as well as other social media platforms. On October 19, 2018, Facebook's WhatsApp announced that it was taking legal action to stop companies from spreading misinformation on its platform in the context of the Brazilian presidential election.
   
   
5. A June 2018 study by Internetstiftelsen i Sverige, for example, found that 71 % of the study participants accessed political information on the internet in 2018, compared to just 47 % in 2014.

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Sub-Chapter 3.1.6: Data Privacy

In the context of data privacy [and data protection], we discuss a selection of older and more recent initiatives, coordination efforts and developments (listed below). Are there others we should include?

1. The EU’s General Data Protection Regulation
   
   
2. Through Protocol (CETS No. 223) amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) adopted in 2018, the Council of Europe modernized its Convention 108.
   
   
3. The Hague Conference on Private International Law is working on a convention regulating the international jurisdiction of courts and the recognition and enforcement of their judgments abroad in civil and commercial matters (the Judgments Project). In the 2018 draft Convention, there is still doubt as to whether privacy will be excluded from the scope of the Judgments Project. A Diplomatic Session is expected to convene in mid-2019.
   
   
4. Argentina’s Personal Data Protection Act dates back to 2000. However, a new data protection bill aims to bring Argentinian data protection law in line with the GDPR. In September 2018, the Argentinian data protection authority announced the introduction of a draft data protection bill to reform the current regime.
   
   
5. A September 2018 amendment saw Thailand’s Draft Personal Data Protection Act incorporate several provisions that largely mirror approaches found in the EU’s GDPR. For example, this applies to how the matter of extraterritoriality is addressed.
   
   
6. In Brazil, the draft General Data Privacy Law was approved by the Senate and sent to the President. On August 15, 2018, Brazil's President Michel Temer signed into law the General Data Protection Law (Lei Geral de Proteção de Dados, LGPD), which establishes, for the first time in the country's history, a general framework for data protection. The law has been described as being inspired by the EU’s GDPR.
   
   
7. The Kenyan government is in the process of developing a Policy and Regulatory Framework for Privacy and Data Protection, including the Data Protection Bill 2018. On July 3, 2018, a draft bill to establish a data protection regime was introduced in the Kenyan Parliament. The bill would require individuals and companies collecting, processing and storing personal data to obtain consent from data subjects, impose data security obligations and restrictions on third-party data transfers, and introduce penalties for violations.
   
   
8. In 2018, a bill substantially amending the Data Protection Act No. 19,628 was reviewed and processed in the Senate in Chile. On June 16, 2018, the National Congress of Chile approved a law making the ‘protection of one's personal data’ a constitutional right. Chile joins Mexico, Colombia and Ecuador in a group of Latin American countries where the protection of data is a constitutional right.
   
   
9. In 2018, Privacy Bill 34-1 (2018) reforming New Zealand’s data privacy law was making its way through the legislative process.
   
   
10. The California Consumer Privacy Act was signed into law in 2018 and will come into effect at the beginning of 2020. The Act regulates the conduct of businesses and extends certain rights to consumers. The Act focuses on whether the business in question “does business in the State of California”.
    
    
11. In 2018, the Australian Privacy Act 1988 (Cth) was amended to incorporate a mandatory data breach notification scheme.
    
    
12. Following ratification of the Council of Europe’s Convention 108, the Tunisian government introduced a draft law on personal data protection in 2018 (Draft Law 25/2018).
    
    
13. In India, the Supreme Court upheld the right to privacy as a constitutionally protected value in a historic 2017 decision, and in 2018, a draft data protection bill called the Personal Data Protection Bill was presented.
    
    
14. In 2017, the Amended Act on the Protection of Personal Information (APPI) in Japan came into effect. The act shares some similarities with the GDPR, including provisions with extraterritorial application and a new cross-border data transfer framework.
    
    
15. Qatar enacted its Law No. 13 Concerning Personal Data Protection (DPL) in 2016.
    
    
16. The Association of Southeast Asian Nations (ASEAN) Framework on Personal Data Protection was established in 2016 to guide member states on data protection regulation.
    
    
17. In 2015, the UN Human Rights Council appointed its first Special Rapporteur on the right to privacy. The work of the Special Rapporteur is ongoing.
    
    
18. In 2013, the Organisation for Economic Co-operation and Development (OECD) published a revised version of its 1980 Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. The revision emphasizes the need to address the global dimension of privacy through improved interoperability.
    
    
19. In 2013, the International Law Association established a Committee on the Protection of Privacy in Private International and Procedural Law. The work of the Committee is ongoing.
    
    
20. The Center for Democracy and Technology has put forward a discussion draft on baseline privacy legislation for the US.
    
    
21. The Global Network Initiative’s Principles on Freedom of Expression and Privacy (first launched in 2008) was updated in 2015, and the updated Guidelines were approved in 2017.
    
    
22. International Conference on Data Protection and Privacy Commissioners;
    
    
23. Asia Pacific Privacy Authorities (APPA) Forum;
    
    
24. Ibero-American Data Protection Network (Red Iberoamericana (RIPD or RedIPD);
    
    
25. Latin American Network of Surveillance, Technology and Society Studies (Lavits);
    
    
26. European Data Protection Board (EDPB);
    
    
27. Central and Eastern Europe Data Protection Authorities (CEEC).
    
    
28. Case C-131/12 Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González
    
    
29. Court of Justice of the European Union. (2019, January 10). Advocate General Szpunar proposes that the Court should limit the scope of the de- referencing that search engine operators are required to carry out to the EU. [Press Release]
    
    
30. OECD. OECD Guidelines on the protection of privacy and transborder flows of personal data
    
    
31. Case C-362/14 Maximillian Schrems v Data Protection Commissioner
    
    
32. Case C-311/18 Data Protection Commissioner v Facebook Ireland Limited, Maximillian Schrems
    
    
33. Asia-Pacific Economic Cooperation. APEC Cross Border Privacy Enforcement Arrangement.
    
    
34. APEC Cross-Border Privacy Rules
    
    
35. Council of Europe’s Convention 108+

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Sub-Chapter 3.2.1: Cybercrime

In the context of cybercrime, we discuss a selection of older and more recent initiatives, coordination efforts and developments (listed below). Are there others we should include?

1. The 2000 ‘ILOVEYOU’ computer worm
   
   
2. Interpol’s Global Complex for Innovation (IGCI) in Singapore
   
   
3. Eurojust
   
   
4. Europol, including its European Cybercrime Centre with its Joint Cybercrime Action Taskforce (J-CAT) launched 2014T
   
   
5. The Council of Europe’s Convention on Cybercrime (the Budapest Convention)
   
   
6. United Nations Convention against Transnational Organized Crime (2000) and its three protocols;
   
   
7. European Convention on Mutual Assistance in Criminal Matters (1959);
   
   
8. Inter-American Convention on Mutual Assistance in Criminal Matters (1992);
   
   
9. Stanford Draft International Convention to Enhance Protection from Cyber Crime and Terrorism (1999);
   
   
10. Draft African Union Convention on the Establishment of a Credible Legal Framework for Cyber Security in Africa (2011); and
    
    
11. Commonwealth Model Law on Computer and Computer Related Crime (2002).
    
    
12. World Economic Forum’s Centre for Cybersecurity
    
    
13. The EU Agency for Network and Information Security (ENISA).
    
    
14. Case C-618/15 Concurrence Sàrl v Samsung Electronics France SAS and Amazon Services Europe Sàrl

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Sub-Chapter 3.2.2: Access to digital evidence

In the context of access to digital evidence, we discuss a selection of older and more recent initiatives, coordination efforts and developments (listed below). Are there others we should include?

1. The Mutual Legal Assistance (MLA) system
   
   
2. The Budapest Convention; most relevantly, a Guidance Note regarding production orders for subscriber information was published in 2017, and work is underway relating to criminal justice access to data in the cloud.
   
   
3. In December 2018, Australia’s controversial Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 received Royal Assent and became law.
   
   
4. In April 2018, the European Commission published the Proposal for a Directive of the European Parliament and of the Council laying down harmonized rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings, and the Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters. On December 7, 2018, the EU Council agreed on its position on the proposals.
   
   
5. Microsoft Corp. v. United States
   
   
6. The Clarifying Lawful Overseas Use of Data Act (CLOUD Act) (H.R. 4943)
   
   
7. On January 9, 2018, the Court of Appeal of British Columbia ruled that non-Canadian companies were required to comply with production orders of provincial courts and hand over data to law enforcement, as long as the company has ‘virtual presence’ in the province, and even if they are not incorporated in the country. It was contended that the lack of difference between physical and virtual presence could have major implications beyond production orders.
   
   
8. In February 2019, the United Nations Office on Drugs and Crime (UNODC), the United Nations Counter-Terrorism Committee Executive Directorate (CTED) and the International Association of Prosecutors (IAP) jointly released a Practical Guide to Requesting Electronic Evidence Across Borders, targeted to investigators and prosecutors.
   
   
9. Since 2012, the legal issues surrounding law enforcement access to digital evidence has been a focus area of the Internet & Jurisdiction Policy Network as one of its three Thematic Programs

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Sub-Chapter 3.2.4: Cybersecurity

In the context of cybersecurity, we discuss a selection of older and more recent initiatives, coordination efforts and developments (listed below). Are there others we should include?

1. The Asia-Pacific Computer Emergency Response Team (APCERT), which is a group of leading and national Computer Emergency Response Teams (CERTs) and Computer Security Incident Response Teams dedicated to the protection of national infrastructure in the Asia-Pacific.
   
   
2. In December 2018, the European Parliament, the Council and the European Commission reached a political agreement on the EU Cybersecurity Act.
   
   
3. The Global Commission on the Stability of Cyberspace, which seeks to set consistent norms related to the security and stability of cyberspace.
   
   
4. The Cybersecurity Initiative by New America, which aims to build an International Cyber Network to publish on cybersecurity issues.
   
   
5. Mutually Agreed Norms for Routing Security (MANRS), a global initiative supported by the Internet Society. It provides crucial fixes to reduce the most common routing threats; in December 2018, the number of network operators that have agreed to MANRS surpassed 100.
   
   
6. China’s Cybersecurity Law became effective in June 2017
   
   
7. On November 2, 2018, the Vietnamese government released a draft decree on guidelines to implement its Law on Cybersecurity No. 24/2018/QH14 (‘the Cybersecurity Law’), which was approved on June 12, 2018.
   
   
8. On February 24, 2018, it was reported that Apple would begin storing Chinese iCloud accounts and encryption keys in China from February 28, 2018, marking a change in its previous policy of only storing encryption keys in the US. The decision to store Chinese iCloud data on servers owned and operated by state-run Chinese company Guizhou-Cloud Big Data (GCBD) was explained as being necessary to comply with a data localization requirement in the country’s Cybersecurity Law, introduced on June 1, 2017.

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Sub-Chapter 3.3 Economy

In the context of general jurisdictional cyber economy issues, we discuss a selection of older and more recent initiatives, coordination efforts and developments (listed below). Are there others we should include?

1. Since the mid-1990s, the United Nations Commission on International Trade Law (UNCITRAL) has worked to increase the uniformity of laws governing e-transactions, e-signatures and digital authentication. Its key achievements are: (1) UNCITRAL Model Law on Electronic Commerce (MLEC) (1996), (2) UNCITRAL Model Law on Electronic Signatures (MLES) (2001), (3) United Nations Convention on the Use of Electronic Communications in International Contracts (ECC) (2005), and (4) UNCITRAL Model Law on Electronic Transferable Records (MLETR) (2017).
   
   
2. The UN Conference on Trade and Development (UNCTAD) has demonstrated that 145 countries (of which 104 are classed as developing or transition economies) have enacted e-transaction laws that recognize the legal equivalence between paper-based and electronic forms of exchange.
   
   
3. In July 2018, the UN Secretary-General convened a High-Level Panel on Digital Cooperation. The outcome will be a report that aims to raise awareness on the impact of digital technologies on the economy and society, and present proposals for improvements to cooperation.
   
   
4. APEC has launched a project aimed at identifying global trends in digital trade as well as opportunities and challenges to enabling SMEs to harness and benefit from digital trade. The project will also make recommendations to APEC on how to help SMEs take advantages of opportunities brought about by digital trade, and a report will be published in 2019.
   
   
5. The World Economic Forum is pursuing a variety of projects, such as its Digital Transformation Initiative, which aims to provide a base of evidence and a common language for public-private collaboration focused on ensuring that the benefits of digital transformation are fairly and widely shared. Its Digital Trade Project supports the development of policy frameworks that maximize the benefits of digital trade and data flows. In 2017, the World Economic Forum published a white paper titled Making Deals in Cyberspace: What’s the Problem?, which aims to build the knowledge of current e-transaction and e-signature rules. That paper concluded that: “While many countries already have baseline e-transaction laws in place […]divergences in details are manifest and do not always address cross-border aspects.”
   
   
6. The World Economic Forum is also involved in a joint Enabling E-Commerce Initiative with the World Trade Organization and the Electronic World Trade Platform. The initiative seeks to encourage high-level discussions on how e-commerce policies can benefit SMEs.
   
   
7. The Hague Conference on Private International Law is working on a convention regulating the international jurisdiction of courts and the recognition and enforcement of their judgments abroad in civil and commercial matters (the Judgments Project). In addition, the Hague Conference’s 2015 Principles on Choice of Law in International Commercial Contracts, and 2005 Convention on Choice of Court Agreements are of direct relevance for online commerce.
   
   
8. The World Trade Organization (WTO) engages with the digital economy from a variety of angles. As early as 1998, the WTO recognized that global electronic commerce was growing and creating new opportunities for trade, and it responded by adopting its Declaration on Global Electronic Commerce. Several other initiatives may be noted, as well. The Doha Declaration endorsed the work already done on electronic commerce, and instructed the General Council to consider the most appropriate institutional arrangements for handling the work program, and to report on further progress to the Fifth Ministerial Conference.
   
   
9. The Global Forum on Cyber Expertise considers what countries, international organizations and private companies can do to exchange best practices and initiatives on cyber capacity building. The International Telecommunications Union (ITU) has similarly considered capacity building for the digital economy.
   
   
10. At the G20 meeting in Düsseldorf, Germany in 2017, the Ministers with responsibility for the digital economy issued the G20 Digital Economy Ministerial Declaration (or the Dusseldorf Declaration), which includes a Roadmap for Digitization setting out policies for the digital economy and the G20 Priorities on Digital Trade.
11. In 2017, the OECD released its biennial report on emerging challenges and opportunities for the digital economy: the OECD Digital Economy Outlook 2017. The OECD has also established an Advisory Group on Measuring GDP in a Digitalized Economy.

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Sub-Chapter 3.3.1: Intellectual property

In the context of intellectual property, we discuss a selection of older and more recent initiatives, coordination efforts and developments (listed below). Are there others we should include?

1. Zippo Manufacturing Company v Zippo Dot Com, Inc. 952 F.Supp. 1119 (W.D.Pa 1997).
   
   
2. Google Inc v Equustek Solutions Inc 2017 SCC 34
   
   
3. In the 2018 draft of the Hague Conference on Private International Law convention, there is still doubt as to whether intellectual property will be excluded from the scope of the Judgments Project.
   
   
4. The EU Directive on Copyright in the Digital Single Market (2018 EU Copyright Directive) received approval from the European Parliament in September 2018 and is designed to update copyright laws for the digital environment. Article 13 of the proposed directive controversially requires websites such as YouTube, Google and Facebook to take ‘appropriate and proportionate’ measures to prevent users posting unauthorized copyright content (known as the filtering measure or, by some critics, the meme ban).
   
   
5. In May 2016, the UK’s Intellectual Property Office published its Policy Paper Protecting creativity, supporting innovation: IP enforcement 2020.
   
   
6. In 2010, the International Law Association established a Committee on Intellectual Property and Private International Law. The work of the Committee is ongoing.
   
   
7. The Centre for International Intellectual Property Studies (CEIPI) at the University of Strasbourg provides commentary on upcoming reform in this area.

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Sub-Chapter 3.3.1.2: Copyright used to restrict speech with cross-border effect

In the context of Copyright used to restrict speech with cross-border effect, we discuss a selection of older and more recent initiatives, coordination efforts and developments (listed below). Are there others we should include?

1. On September 18, 2018, the Japanese Cabinet Office presented a draft report advocating for legislation that would allow websites to be blocked for offering access to copyright-infringing content. The proposition, which came after the government asked ISPs to voluntarily block websites upon notice in April 2018, is controversial, and has been described as contrary to constitutional safeguards for freedom of speech.
   
   
2. Garcia v Google Inc 786 F.3d 733.
   
   
3. Another example with potential freedom of expression implications is a proposal from FairPlay Canada to establish a not-for-profit organization that would identify websites that engage in copyright piracy and require ISPs to block access to those websites. The Canadian Radio-Television and Telecommunications Commission rejected the proposal in October 2018.
   
   
4. Some interviewed experts described controversial revisions to the EU Copyright Directive as granting expanded power to copyright holders, which could be abused to limit freedom of expression. The impacts of filtering measures in Article 13 of the 2018 draft EU copyright Directive may be noted in this context.
   
   
5. Another example is found in Tanzania’s Electronic and Postal Communications (Online Content) Regulation 2018, which regulates content posted online with offenses for failing to remove content and imposes fees for bloggers and online media.

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Sub-Chapter 3.3.3: Taxation – the intersection of jurisdictional complexities and national economy

In the context of taxation, we discuss a selection of older and more recent initiatives, coordination efforts and developments (listed below). Are there others we should include?

1. In July 2018, the Joint Chiefs of Global Tax Enforcement (known as the J5) was announced.
   
   
2. OECD. (2018). Tax challenges arising from digitalisation: Interim report 2018: Inclusive framework on BEPS. OECD/G20 Base Erosion and Profit Shifting Project. Paris: OECD Publishing.
   
   
3. Base erosion and profit shifting (BEPS).
   
   
4. In February 2019, the OECD released a Public Consultation Document: Addressing the Tax Challenges of the Digitalisation of the Economy.
   
   
5. One of the most debated recent proposals is the European Commission’s now-stalled proposal for a digital services tax (DST). The failure of this initiative to gain sufficiently broad support has driven individual EU Member States such as France to pursue their own tax reform initiatives.
   
   
6. Australia’s Multinational Anti-Avoidance Law (MAAL), which came into effect on December 11, 2015, is another example of a recent tax reform initiative aimed at the technology sector.
   
   
7. Uganda, in a unique approach, has opted to pilot a scheme taxing its citizens’ use of social media platforms like Facebook, Skype, Twitter, and WhatsApp.

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CHAPTER 3: Topical Trends

Sub-Chapter 3.3.4: Internet of Things (IoT) – everything transferring data everywhere

In the context of IoT, we discuss a selection of older and more recent initiatives, coordination efforts and developments (listed below). Are there others we should include?

1. In 2017, the World Bank Group published a Report titled Internet of things: the new government to business platform - a review of opportunities, practices, and challenges.
   
   
2. In an example of cross-border internet cooperation in the IoT field, in 2016, a group of major telecommunications providers formed the IoT World Alliance.
   
   
3. In February 2018, Siemens started working with partners from industry, government and society to sign a ‘Charter of Trust’ aimed at three objectives: (1) Protecting the data of individuals and companies; (2) Preventing damage to people, companies and infrastructures; and (3) Establishing a reliable foundation on which confidence in a networked, digital world can take root and grow.
   
   
4. The Internet Governance Forum (IGF) Dynamic Coalition on the Internet of Things is seeking to achieve best practice in relation to the IoT particularly addressing safety, security and privacy.
   
   
5. In 2017, Google Cloud announced the global availability of its IoT Core service.

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CHAPTER 4: Legal and Technical Approaches

Sub-Chapter 4.1: Major legal approaches to solutions

States take a wide range of legal approaches in the pursuit of what they perceive to be solutions to the cross-border legal challenges on the Internet. We discuss and analyze a selection of such legal approaches listed below. Are there others we should include?

1. Takedown, stay-down and stay-up orders by courts
   
   
2. Race to the highest potential fines
   
   
3. ‘Rep localization’ – forced local representation
   
   
4. Jurisdictional trawling as a regulatory approach
   
   
5. Targeting/directing activities/doing business/‘effects doctrine’
   
   
6. A common focus on comity, but a lack of agreement
   
   
7. Scope of jurisdiction – local court orders with global implications
   
   
8. Terms of service and community guidelines

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CHAPTER 4: Legal and Technical Approaches

Sub-Chapter 4.1.2: Race to the highest potential fines

In the context of race to the highest potential fines, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should include?

1. That the Russian government was considering amending a 2017 legal requirement that search engines remove links to banned websites from search results, in order to increase the maximum fines for non-compliance from 700 000 rubles (about 9 000 euros) to 1% of a company’s local revenue.
   
   
2. On November 6, 2018, the Parliament of Mauritius adopted amendments to the country's Information and Communication Technologies Act (ICTA), which aim to regulate and curtail harmful and illegal content and activities perpetrated via any information and communication service – including telecommunication services – through an increase in penalty and term of imprisonment for offenders.
   
   
3. The high potential fines under the EU’s GDPR with fines of up to €20 million, or 4 % of the total worldwide annual turnover.

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CHAPTER 4: Legal and Technical Approaches

Sub-Chapter 4.1.3: ‘Rep localization’ – forced local representation

In the context of forced local representation, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should include?

1. The EU’s General Data Protection Regulation
   
   
2. The EU’s Proposal for a e-evidence Directive, Art 3.
   
   
3. Thailand’s proposed data protection law incorporates a rep localization requirement that is inspired by the EU, and potentially even broader.
   
   
4. On October 26, 2018, during a meeting of representatives from various Indian ministries and company representatives from Facebook, Google and WhatsApp, the Indian Home ministry ordered the platforms to appoint local grievance officers as part of an effort to ensure the removal of objectionable or malicious content from public view.
   
   
5. Vietnam's government, meanwhile, has asked Facebook to open an office within the country to comply with a 2018 cybersecurity law that amends requirements for the processing of Vietnamese users' personal data. The law requires all platforms that offer services in Vietnam to remove offending content within one day of a request being filed, to store data on Vietnamese within the country's territory, and to operate a local office.

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CHAPTER 4: Legal and Technical Approaches

Sub-Chapter 4.1.5: Targeting/directing activities/doing business/‘effects doctrine’

In the context of targeting/directing activities/doing business/‘effects doctrine’, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should include?

1. Young v. New Haven Advocate 315 F 3d 256 No. 01-2340 (13 December 2002).
   
   
2. Ward Group Pty Ltd v Brodie & Stone plc (with Corrigendum dated 19 May 2005) [2005] FCA 471
   
   
3. Joined Cases C-585/ 08 Peter Pammer v Reederei Karl Schlüter GmbH & Co KG and C-144/ 09 Hotel Alpenhof GesmbH v Oliver Heller
   
   
4. The EU’s General Data Protection Regulation, with reference to the fact that the targeting test is part of instruments already being copied in other legal systems suggests that it will now spread further. For example, the targeting test is now found in data protection proposals in Argentina and Thailand, which have both adopted the GDPR’s approach.
   
   
5. The EU’s Proposal for a Directive of the European Parliament and of the Council laying down harmonized rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings, and the Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters.

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CHAPTER 4: Legal and Technical Approaches

Sub-Chapter 4.1.7: Scope of jurisdiction – local court orders with global implications

In the context of local court orders with global implications, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should include?

1. Macquarie Bank Limited & Anor v Berg [1999] NSWSC 526
   
   
2. Google Inc v Equustek Solutions Inc 2017 SCC 34
   
   
3. Case C-194/16 Bolagsupplysningen OÜ Ingrid Ilsjan v Svensk Handel AB
   
   
4. Case C-18/18 Glawischnig-Piesczek
   
   
5. The ongoing right to be forgotten – Google France – dispute
   
   
6. Hassell v. Bird 234 Cal. Rptr. 3d 867 (2018).

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CHAPTER 4: Legal and Technical Approaches

Sub-Chapter 4.2: Major technical approaches to solutions

Many of the legal issues that arise in the context of internet technology may also be solved through that same technology. We discuss and analyze a selection of such technical approaches listed below. Are there others we should include?

1. the use of so-called geo-location technologies
   
   
2. Content filtering on the national network level;
   
   
3. Court ordered suspension, deletion, non-resolving, seizure and transfer in the context of the Domain Name System;
   
   
4. Court ordered DNS blocking, IP Address blocking or re-routing and URL blocking in the context of the Domain Name System;
   
   
5. Service shutdowns
   
   
6. Internet shutdowns
   
   
7. Mandatory data localization
   
   
8. Artificial intelligence

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CHAPTER 4: Legal and Technical Approaches

Sub-Chapter 4.2.5: Service shutdowns

In the context of service shutdowns, we discuss a small selection of older and more recent initiatives and developments (listed below). Are there others that are particularly significant that we should include?

1. On May 29, 2018, Communications Minister of Papua New Guinea, Sam Basil, announced that the country would block access to Facebook for a month, in order to collect information to identify, filter and remove users that hide behind fake accounts, upload pornographic images, or post false and misleading information on Facebook. The Minister cited the 2016 Cyber Crime Act as the basis for the block and mentioned that the government was also “look[ing] at the possibility of creating a new social network site for PNG citizens with genuine profiles as well.”
   
   
2. On May 26, 2018, Egypt's top administrative court ruled that YouTube should be blocked for one month over The Innocence of Muslims, a 2012 anti-Islamic video that sparked protests in the Middle East upon its release. A lower administrative had ordered the block in 2013, after which the case was appealed until the May 26, 2018 ruling.
   
   
3. On March 8, 2018, the government of Sri Lanka ordered ISPs to temporarily block access to Facebook, WhatsApp and Instagram because they were spreading and amplifying hate speech amid violent protests in the country, according to a government spokesperson. The ban was lifted a week later, after meetings between Sri Lankan authorities and representatives of the platform.
   
   
4. On November 8, 2017, the Ministry of Communications of Indonesia announced that it would launch, in January 2018, an automated system to flag and block websites or messaging services displaying pornography or extremist content. The government also stated that it would summon executives of messaging services and search engines to demand that they moderate obscene content. The announcement followed the Indonesian government’s threat to ban WhatsApp if it did not move to block obscene GIFs on its platform.
   
   
5. On September 6, 2017, it was reported that access to Facebook and WhatsApp was difficult in Togo, before all mobile internet was reportedly shut down. After service was restored, WhatsApp was again blocked, as connection speeds slowed down on September 19, 2017. The internet access restrictions came amid intensifying anti-government protests in the country.
   
   
6. On April 13, 2018, a Russian court ordered that access to the messaging service Telegram be blocked in Russia, following the platform's repeated refusal to hand over its encryption keys to the FSB, the Russian security agency. A few days thereafter, on April 17, 2018, Roskomnadzor requested that Google and Apple remove Telegram from their application stores. On the same day, the regulator announced that it had blocked millions of IP addresses belonging to Amazon Web Services and Google Cloud, in an attempt to block access to Telegram. This resulted in disruptions for other services, including Google’s search engine and email service.
   
   
7. On May 12, 2017, the National Broadcasting and Telecommunications Commission (NBTC) of Thailand threatened to block Facebook unless the US-based company removed 130 ‘illegal’ posts. The demand came after the Thai Internet Service Provider Association (TISPA), which accounts for 95% of internet traffic in the country, purportedly requested that Facebook Thailand restrict access to content critical of the monarchy.
   
   
8. On May 5, 2017, a Turkish court in Ankara rejected an appeal by the Wikimedia Foundation against a blocking of Wikipedia in the jurisdiction. On April 29, the Turkish telecommunications authority BTK announced that Wikipedia would be blocked through an administrative measure citing law no. 5651, which regulates online content in Turkey. After the blocking, the Turkish Communications ministry stated that Wikipedia had been part of a smear campaign against Turkey in the international arena. In their decision, the judges of the Ankara court were quoted as saying that while freedom of speech was a fundamental right, it can be limited in cases where there is a ‘necessity for regulation.’ Following this judicial decision, Wikipedia announced on May 9 that it had applied to the Turkish constitutional court following the rejection of its appeal.
   
   
9. On November 25, 2017, Twitter stated that the Pakistani government had taken action to block its service, as well as other social media services. The reasoning behind the block was unclear, although some news outlets have linked it to Islamist protests in Islamabad.
   
   
10. On September 25, 2017, text messages sent through WhatsApp were blocked in China, following partial blocks of images and videos in July 2017. While the reasons for the blocking were unclear, news outlets have noted that the decision came ahead of the 19th National Congress of the Chinese Communist Party, a major political event that began on October 18, 2017.
    
    
11. On June 14, 2018, the Belarusian National Assembly amended the country's media law, introducing a requirement for authors of all online posts and comments to identify and register themselves. The government will be able to block social media platforms without the need for a court order. Media platforms must also register with the Information Registry; unregistered media outlets will not enjoy protections granted to the press.

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CHAPTER 4: Legal and Technical Approaches

Sub-Chapter 4.2.6: Internet shutdowns

In the context of Internet shutdowns, we discuss a small selection of older and more recent initiatives and developments (listed below). Are there others that are particularly significant that we should include?

1. In January 2019, the internet was shut down for a time in Zimbabwe, but was restored following a court order finding that Zimbabwe’s government exceeded its mandate in ordering an internet blackout during the civilian protests.
   
   
2. Following the general election on December 30, 2018, it was reported that internet access had been restricted in the Democratic Republic of Congo (DRC).
   
   
3. On December 12, 2017, the Ethiopian government partially blocked access to the internet as student protests grew violent in the Oromia region.
   
   
4. The end of 2017 saw a lengthy period of restrictions on internet access in the Anglophone regions of Cameroon.

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CHAPTER 4: Legal and Technical Approaches

Sub-Chapter 4.2.8: Artificial Intelligence

In the context of artificial intelligence, we discuss a selection of older and more recent initiatives and developments (listed below). Are there others we should include?

1. In 2017, the Group of Seven (G7) – comprising of Canada, France, Germany, Italy, Japan, the UK and the US – issued its Innovation Ministers’ Statement on Artificial Intelligence.
   
   
2. A 2017 McKinsey Global Institute report observed that: “China and the United States are currently the world leaders in AI development. In 2015 alone, they accounted for nearly 10,000 papers on AI published in academic journals, while the United Kingdom, India, Germany, and Japan combined to produce only about half as many scholarly research articles.”
   
   
3. It has been noted that “China has the capability and opportunity to lead international collaboration in the development and governance of AI, ensuring that this breakthrough technology will positively contribute to the general welfare of all humanity”. In January 2018, the China Electronics Standardization Institute published its Artificial Intelligence Standardization Whitepaper, “which summarizes current developments in AI technology, standardization processes in other countries, China’s AI standardization framework and China’s plan for developing AI capabilities going forward.”
   
   
4. In June 2018, the National Institution for Transforming India (NITI Aayog) released a white paper on the development of a comprehensive national AI strategy.
   
   
5. Making specific reference to agriculture, healthcare, public services and financial services, a November 2018 white paper by Access Partnership and the University of Pretoria noted: “The rapidly developing set of artificial intelligence (AI) technologies has the potential to solve some of the most pressing challenges that impact Sub-Saharan Africa and drive growth and development in core sectors”. However, in its November 2018 report Coming to Life: Artificial Intelligence in Africa, the Atlantic Council notes that: “Unfortunately, except in a handful of countries—namely Kenya, South Africa, Nigeria, Ghana, and Ethiopia—the application of AI is a chimera, not a reality. The critical factors necessary for the technology to take hold are woefully absent across most of the continent, and many African countries remain incapable of requisite reforms in the areas of data collection and data privacy, infrastructure, education, and governance. Without those reforms, there is little chance that most African nations will be able to exploit AI technologies to advance sustainable development and inclusive growth. The specter of automation threatens to leave these countries behind.”
   
   
6. In September 2018, the World Wide Web Foundation published its report titled Algorithms and Artificial Intelligence in Latin America.
   
   
7. In October 2017, the United Arab Emirates released an AI strategy.
   
   
8. The Council of Europe has published numerous reports such as:
   
   
   1. Algorithms and Human Rights: Study on the human rights dimensions of automated data processing techniques and possible regulatory implications, of December 2017.
      
      
   2. Draft Declaration of the Committee of Ministers on the manipulative capabilities of algorithmic processes, of November 2018.
      
      
   3. Draft Recommendation of the Committee of Ministers to member States on human rights impacts of algorithmic systems, of November 2018.
      
      
   4. A study of the implications of advanced digital technologies (including AI systems) for the concept of responsibility within a human rights framework, of November 2018.
      
      
9. In April 2018, ARTICLE 19 and Privacy International published a report titled Privacy and Freedom of Expression in the Age of Artificial Intelligence.
   
   
10. In December 2018, the European Commission’s High-Level Expert Group on Artificial Intelligence published its Draft Ethics Guidelines for Trustworthy AI.
    
    
11. In December 2018, the Council of Europe adopted a text setting out ethical principles relating to the use of artificial intelligence in judicial systems.
    
    
12. In September 2018, the Subcommittee on Information Technology Committee on Oversight and Government Reform of the US House of Representatives issued a white paper titled Rise of the Machines: Artificial Intelligence and its Growing Impact on U.S. Policy.

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CHAPTER 5: Relevant concept clusters 101

The conceptual complexity of the field prevents informed participation for many stakeholders, and frequently results in misunderstanding and miscommunication. This section of the Report highlights various relevant ‘concept clusters’, with the aim to both discuss a selection of concepts and illustrate how they relate to each one another.

In the section we include the concept clusters listed below. Are there other concepts that should be included?

• Public international law, private international law (or conflict of laws)
  
  
• Sovereignty, jurisdiction and territory
  
  
• Territorial, and extraterritorial, jurisdictional claims
  
  
• Due diligence, duty of non-intervention and comity
  
  
• Legislative jurisdiction, adjudicative jurisdiction, investigative jurisdiction and enforcement jurisdiction
  
  
• Jurisdiction, choice of law, declining jurisdiction, recognition and enforcement
  
  
• Personal jurisdiction, subject matter jurisdiction and scope of jurisdiction
  
  
• Technology neutral, functional equivalence, future proofing
  
  
• Data types [personal data, metadata, content data, subscriber information, traffic data, access data, and transactional data]
  
  
• Delist, deindex, de-reference, delete, block, remove, takedown, stay-down
  
  
• Registry, registrar, gTLD and ccTLD
  
  
• Internet, World Wide Web
  
  
• B2B, B2C, and C2C

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