Impact of cyberspace on human rights and democracy

摘要

This paper focuses on the asserted ‘boundlessness’ of cyberspace in order to examine how and to what extent jurisdiction, in its various meaning and forms (jurisdiction to prescribe, to adjudicate and to execute), over activities taking place in the cyberspace may be asserted and even exercised, based on traditional jurisdictional links and also on new trends. The paper also examines conflicts of law in civilian (mainly tort laws and laws on the protection of rights of the personality as well as intellectual property) and criminal matters. Determining what set of rules applies to a certain fact or situation implies a reference to those rules establishing where such a fact or situation has legally taken place and is to be localised (locus commissi delicti), and a reference to main criteria including those focusing on the conduct, the localisation of the hardware, the effect, the access to the informatics system, the accessibility of the information and future trends. The paper further highlights that the enforcement of activities in cyberspace appears to be affected by an assimilation to traditional forms of investigative activities, such as search or inspection or even the interception of communication or data flow, which are to a certain degree misleading in respect of the specific means employed. A specific reference to the role of providers in enforcement activities is also included. The second part of the paper deals with the traditional human rights relevant to cyberspace and to the broader concept of ‘right to access’ cyberspace, as well as the uncertainties derived from the fact that a plurality of state and non-state actors may limit and interfere with human rights in cyberspace. The paper specifically deals with the commercial dimension of cyberspace and with eventual corporate liability for human rights violation (multinational corporations violating rights to privacy in connection with or on behalf of states or enforcing c- nsorship) based on US legislation and also taking into consideration European trends. The paper finally highlights the supportive role to the protection of human rights of regulatory bodies enforcing fair-trade and anti-trust regulations, and the multinational dimension of free trade in promoting human rights, by eventually considering restrictions in cyberspace and censorship as restrictions to trade under WTO agreements.