The normative order of the Internet
Dr. Matthias C. Kettemann
The Internet is not a legal vacuum: But what can constitutional law, European law, international law and non-governmental, transnational and hybrid regulatory arrangements achieve in the face of political polarization between Internet freedom and cyber security, the monopolization of discourse power by a few companies and the changing significance of classic principles of international law such as sovereignty? Against the backdrop of the economic, social and political effects of information and communication technologies, the research project “The normative order of the Internet” explores the foundations for the development of the normative order of the Internet.
Based on the observation that the Internet is full of norms that appear to be devoid of order, have been set by various actors, are not formally binding in some cases, but are nevertheless powerful, the research carried out during the project represents an order project: a counter-project to concepts such as the Internet as the “Wild West”, but also to excessive state regulation. Initially, the project worked on basic questions of the normative order of the Internet and analyzed fundamental principles and processes of normative development on the Internet. The conflicting interests of various stakeholders in the implementation of the regulatory goal of Internet governance (i.e. ensuring a stable, functional Internet as a prerequisite for a human-centered, development-oriented information society) were identified as a fundamental conflict in the normative order of the Internet.
Following this groundwork, the project identified the normative and factual fractures in the design and development of the Internet and the normative and factual forces that contribute to normative disorder on the Internet. States as well as companies and courts can be “agents of disorder”; the development of an increasingly privatized Internet is also a centrifugal force.
The central research achievement of the project was to critically scrutinize existing approaches that are used to explain the dynamics and hierarchy of norms on the Internet. These include systems theory (Luhmann, Teubner), constitutionalization approaches (Fischer-Lescano/Teubner), transnational law (Viellechner, Calliess); legal pluralism (Seinecke); multinormativity (Günther); network and media theory (Vesting); interoperability approaches (Palfrey, Gasser, Weber); massive online microjustice (De Werra); conflict studies (Mueller); infrastructuralization (DeNardis) and social contract approaches (Weber).
Building on a critical theory of norms, the project aims to design a non-fragmented order for the Internet (a “nomos”) that contains various “narratives” that different stakeholder groups (can) adopt. Descombes distinguishes between institution-giving and constitution-giving power (or instituted and constituted normativity). This distinction is just as relevant as the central function of Internet freedom and cybersecurity as poles of the unified nomos of the Internet.
In a final part oriented towards constitutional law, the work develops an approach as to how the norms that emerge from the normative order of the Internet as a network of norms can be integrated within the state. It is shown that state legal systems can formulate transnational regulatory arrangements and that a tertium exists alongside state law and law declared ‘state’ by procedure.
The project contributes important findings to the cluster’s research program: First, it examines the role of non-traditional authorities as sources of norms in multi-stakeholder environments. This also makes it possible to answer questions about the justification and justifiability of normative arrangements. In contrast to the early criticism of the role of law on the Internet, the project shows that the multinormative order of the Internet can be understood as a unified nomos that feeds various (justification) narratives. The research project is assigned to Research Field III of the Cluster of Excellence. The normative order of the Internet can only be meaningfully understood in the light of competition, overlapping and interdependence with other normative orders. In particular, the project contributes to a better understanding of the normative tensions prevailing on the Internet between global and regional, state, state-analogous and private order formation and presents a new model of the legitimation of the normative order of the Internet as a legitimate supranational order (which particularly touches on the questions raised in sub-areas 1 and 3 of FF3).
The most important publications of the project:
Kettemann, Matthias: “Human Rights in the Multistakeholder Age: More Democracy for the Internet”, ZFMR 1, 2016, pp.24-36
Kettemann, Matthias: Völkerrecht in Zeiten des Netzes: Perspektiven auf den effektiven Schutz von Grund- und Menschenrechten in der Informationsgesellschaft zwischen Völkerrecht, Europarecht und Staatsrecht, Bonn: Friedrich-Ebert-Stiftung, 2015. Online at: http://library.fes.de/pdf-files/akademie/12068.pdf
Benedek, Wolfgang & Matthias Kettemann: Freedom of Expression on the Internet, Strasbourg, 2014 (French translation: 2015, Ukrainian translation: 2016, Turkish translation 2017)
The project’s most important events and collaborations:
Organization of a large workshop on 6-7 July 2017 on “Normative Orders of the Digital”, with Prof. Peukert, Prof. Daase, Prof. Burchard.
Co-organization and thematic leadership of the Junior Researchers’ Conference of the Cluster of Excellence “Normative Orders” : Digital
Three sessions I organized at Europe’s most influential internet governance conference “EuroDIG”: on “Freedom of Expression on the Internet” (Berlin, June 2014), “Blocking Internet content” (Brussels, June 2016) and “Intermediaries and Human Rights: Between Co-opted Law Enforcement and Human Rights Protection” (Brussels, June 2016)
Important cooperation partners in the cluster were Prof. Kadelbach (PI) and Prof. Peukert (PI). Together with Prof. Peukert (PI), Prof. Daase (PI) and Prof. Burchard (PI), I established the research focus Internet and Society in 2016, of which I am co-head. Back in 2015, I founded the Colloquium for Internet Research together with Thorsten Thiel and was involved as a scientific member in the NETMundial process, which developed central principles for the Internet.
I belong to several international networks in the field of Internet research, which I have deepened and expanded during the cluster term. Among others, I am an Affiliate of the Network of Excellence in Internet Science, National Expert of the Internet & Jurisdiction Observatory, Co-Head of the ICANN At-Large-Structure Austria (ÖCG) working group, expert for the Advisory Board of the European Fundamental Rights Agency, reviewer for the Czech and South African research funds as well as for COST (for the topics Internet and Human Rights) and Affiliated Faculty of the Ostrom Workshop Program on Cybersecurity and Internet Governance at Indiana University. My appointment as Rapporteur of the Council of Europe Committee of Experts on Internet Intermediaries deserves special mention.
I am the initiator and co-founder of the research focus Internet and Society in the Cluster and co-convener of the Internet Colloquium, the Cluster’s flagship event series on the Internet, politics and law. I have been involved in central Cluster events and non-university lectures and events over the entire term: from lectures in the International Graduate Programme and the Annual Conference (lecture in 2013 and panel organization in 2014) to the 2016 Junior Researchers’ Conference on “Digital