A Decade of CoE Digital Constitutionalism Efforts: Human Rights and Principles Facing Internet Privatized Regulation and Multistakeholder Governance

Abstract : While attempts to conceptualize normative developments in the online environment are almost contemporary with first efforts to define and adopt Internet-related policies since the mid-90s (Celeste 2019), a more holistic definition of the concept of digital constitutionalism was only recently proposed as the set of various efforts “to articulate a set of political rights, governance norms, and limitation on the exercise of power on the Internet” (Gill et al. 2015). Since then, a growing number of scholarly work adopted this umbrella definition to explore more in depth the contribution of specific actors to digital constitutionalism (see, e.g., Padovani & Santaniello 2018). This proposal addresses the case of the Council of Europe (CoE) as a major contributor in this framework. In the last decade, the CoE has adopted no less than 34 soft law instruments specifically dealing with the online environment. While other entities such as ‘Data Protection’ and ‘Cybercrime’ have concentrated on the international Treaties they respectively have in charge, the ‘Media and Internet Governance’ Division seems to have balanced the non binding nature of its own instruments with their quantity, their variety, and the width of their scope. The proposed paper analyzes this true fabric of international soft law for the online environment that this CoE Division has become. It is structured around three main research questions: why the turn to such an intense activity in 2006; the kind, scope and substance of the considered 34 soft law instruments and especially the reasons for this choice of non binding instruments; the cooperation and tensions that punctuated the drafting and adoption of the considered instruments during the ten years period. The multidisciplinary approach draws from communication studies, international and human rights law, political science and international relations. It shows a strong empirical dimension, based on data collection through interviews, document analysis and archival research, and enriched by the author’s unique experience of participant observation, from 2005 to 2013, to different CoE committees of experts. The paper shows that CoE digital constitutionalism efforts and results cannot be isolated from both endogenous transformations and exogenous shifts that intensified in post-WSIS Internet governance. The former relates to the internal transformations of International organizations, as also confirmed in the literature in other global governance sectors. The latter is a direct consequence of the shift in how human rights and principles are envisaged and debated - from the traditional focus on state obligations and state enforcement to an increasing involvement of private actors to play a prominent role - accompanied by a shift to multistakeholderism. Selected references on the Digital Constitutionalism framework: Celeste, E. (2019). Digital Constitutionalism: a New Systematic Theorisation, International Review of Law, Computers & Technology, DOI: 10.1080/13600869.2019.1562604 Gill, L., Redeker, D. and Gasser, U. (2015). Towards Digital Constitutionalism? Mapping Attempts to Craft an Internet Bill of Rights. Berkman Center Research Publication No. 2015-15. DOI: http://dx.doi.org/10.2139/ssrn.2687120 Padovani, C. and Santaniello, M. (Eds.). (2018). Digital Constitutionalism: Fundamental Rights and Power Limitation in the Internet Eco-system [Special Issue], The International Communication Gazette 80(4).
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Meryem Marzouki. A Decade of CoE Digital Constitutionalism Efforts: Human Rights and Principles Facing Internet Privatized Regulation and Multistakeholder Governance. 2019 International Association for Media and Communication Research Conference (IAMCR), International Association for Media and Communication Research, Jul 2019, Madrid, Spain. ⟨halshs-02163159⟩

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