Crisis of Normativity and Normativity of the Crisis on the Internet: Foundations and factors

Dr. iur. LL.M. (Harvard) Matthias C. Kettemann

Duration of the research project: 11/2017 – 12/2018

If one follows the prevailing discourses, the Internet and its order are in crisis. However, crises (discourses) in the normative order of the Internet do not fundamentally point to a dysfunctionality of the order, but merely to the crisis or crisis-like challenge of individual elements of this order.
In my habilitation, I already worked out that a crisis of the legitimacy of law on the Internet can be determined by an abandonment of the state-centredness that establishes validity – this must lead to a more crisis-resistant theory of legal sources. A hierarchy of legal sources must be fed into the functional logic of the Internet; a theory of conflict of laws for the Internet age as an instrument for crisis navigation is essential.

In this research project, I wanted to put this treatment of crises and crisis discourses in relation to the normative order of the internet on a firmer footing and examined two central crisis factors. Using the example of the role of intermediaries in the enforcement of law and in the fight against fake news and hate speech, I analyzed the crisis element: “abandonment of structures”. Using the crisis factor of alienation/diffusion of obligations under international law, I examined the (danger) potential of cyber security norms.

Intermediaries in crisis

Intermediaries such as Google and Facebook, Amazon and Telekom play an essential role in the Internet ecosystem. They enable us to exercise our rights on the internet and realize the potential of the internet for the economy and society. At the same time, however, intermediaries can also pose a threat to rights and freedoms. General terms and conditions and community guidelines can undermine national and regional data protection law or restrict freedom of expression through unclear wording.
The project investigated how the implementation of the normative guidelines of the Recommendation by states relates to the crisis-like phenomena mentioned above. Is it a symptom of a crisis of the normative order of the Internet when intermediaries commit legal violations or when courts issue contradictory rulings or rulings that violate international law? Crisis discourses focus on the fact that intermediaries do not (want to) take effective action against hate speech and do not (want to) sustainably identify and delete fake news. But does this make intermediaries a crisis factor? Can the soft law approach of the Council of Europe provide a remedy here, especially if it is implemented nationally through binding law?

Cyber security in the crisis

Cyber security is a key buzzword in internet policy and is closely linked to the stability, robustness, resilience and functionality of the internet. Cyber security can be threatened by cybercrime and cyber terrorism, but also by a lack of legal and technical cooperation between states and a lack of preventive measures, such as the development of crisis intervention centers and teams as well as transnational crisis communication structures for cyber incidents. Promoting and ensuring cyber security is a prerequisite for the smooth running of national economic processes and the international economic and financial system, transnational communication flows, the functioning of energy networks, the realization of human rights, the performance of national, regional and international defence infrastructures and, finally, the full realization of all human rights.

These normative guidelines can be implemented through cyber security norms. Or do obligations under international law diffuse when they are spelled out as non-binding norms for responsible state behavior, and not as international law? Is the diffusion of obligations under international law (e.g. to ensure cyber security) a crisis factor? I have carried out preliminary work on cyber security norms and examined how these relate to obligations under international treaty law and customary international law. However, too little research has been done to objectify the crisis of the normative order of the Internet in the light of the cyber security discourse. The project sought to fill this gap.

Selected publications on the project

Kettemann, Matthias C. (2017): Between hate speech and cat pictures, in Lorena Jaume-Palasí, Julia Pohle, Matthias Spielkamp (eds.), Digitalpolitik. An Introduction (Berlin: ICANN, Wikimedia, iRights), 48-57, https://irights.info/artikel/intermediaere-internationale-regulierung/28475

Kettemann, Matthias C. (2017): Ensuring Cybersecurity through International Law, Revista Española de Derecho internacional.

Kettemann, Matthias (2019): “This is Not a Drill”: International Law and Protection of Cybersecurity, to be published in Wagner/Kettemann/Vieth (eds.), Research Handbook of Human Rights and Digital Technology (Cheltenham: E. Elgar).

Kettemann, Matthias; Wagner, Ben; Vieth, Kilian (2019): Research Handbook of Human Rights and Digital Technology (Cheltenham: E. Elgar).

Kettemann, Matthias (2019): The normative order of cyber security: on the potential of cyber security norms. Normative Orders Working Paper 01/2019.

Kettemann, Matthias (2020): The Normative Order of the Internet. Normative Orders Working Paper 01/2020.