Giovedì e venerdì scorsi si è tenuto all’Istituto Universitario Europeo di Fiesole un workshop internazionale dal titolo Transnational Law – Rethinking Law and Legal Thinking, organizzato da Miguel Poiares Maduro, già Avvocato Generale presso la Corte di giustizia dell’Unione europea ed ora Professore di diritto europeo all’Istituto e direttore del Global Governance Programme.
La domanda che vi starete ponendo è legittima. Perché in medialaws un commento su un evento che sembrerebbe non avere alcun collegamento con il mondo dei media?
Non credo che basti a convincerci il fatto che, tra le relazioni programmate, ci fosse anche la mia in cui presentavo un paper, scritto insieme a Marco Bassini, dal titolo The Law of the Internet.
Forse può essere più convincente riportare qui sotto l’introduzione del paper. Per leggere il resto del lavoro, bisognerà aspettare la pubblicazione degli atti del workshop.
If under the label of “globalisation” it is possible to identify, in the words of Habermas, all those trends capable of modifying that historical constellation which has been, since the post-Westphalia era, characterised by a convergence, within the same national borders, of state, society and economy, then the Internet could be seen as the pioneer of the new post-national constellation.
It is in fact difficult to find in history any expression of a compression of time and space more profound than that which characterises social interaction in cyberspace. With particular reference to the space (territorial) element, our main research question is whether this compression has been so extreme as to create a borderless world, “allergic” to every attempt to be regulated at national and even supranational and transnational levels.
If the answer is positive, then the anarchic nature of the Net would imply that Internet law have benefited only from the pars destruens of the post-Westphalia legal context (globalisation as denationalisation), which has determined the crisis of the national legal order as self-contained and self-sufficient normative whole. In that hypothesis, the rise of cyberspace would instead be completely immune to the pars costruens (globalisation as multilevel supranational governance). This is also encapsulated in the progressive lack of centrality of municipal law caused by the advent of the new season of transnational law which does not entirely fit between the dichotomy of municipal law and international law.
If, by contrast, the answer to our first question is negative, and consequently we can see combined in Internet law both the destruens and the costruens parts emerging after the crisis of the post-Westphalian legal order, then it might be interesting to explore to what extent and especially at what level of governance a regulative approach could play a role in cyberspace.
In particular, it is important to understand whether the post-national nature of the Internet has really left behind any state ambition to regulate it or, by contrast, whether in a process of europeisation and internationalisation of many fields of law, Internet law should represent a partial exception, because of “its national” fatal attraction.
If the latter hypothesis were to be confirmed, then a very paradoxical scenario would emerge, a scenario in which the area of Internet law, for years considered the most emblematic expression of the limitations of national law in facing the challenges of globalisation, would, by contrast, prove to be one of the few fields of law still encapsulated in national law, in which not only a global approach, but also a transnational one risks proving not to be fully adequate.
In the attempt to find a reasonable answer to the research questions, the paper is divided into two parts, each composed of two subsections. The first part of the paper will investigate the initial scholarly analysis of the main characteristics of the law of the Internet (subsection A), and how that analysis has influenced, even though only partially, the original case law of the national courts related to the identification of the relevant jurisdiction (subsection B).
In the second part of the paper, we will underline how, after some years, the first, radical, assumptions related to the presumed anarchic nature of the Internet have shown their weakness. Consequently, the relevant question is no longer whether it is possible to regulate the Net, but, very differently, how to do it. In particular, in the present second season of cyber law, the issue at the core of the actual academic, judicial and legislative debate is how to identify the best level to regulate what, some years earlier, was considered, by definition, to be an a-national phenomena.
In this respect we will try to identify the weakest points of the cyber-anarchic approach (subsection A). We will then underline, by an analysis of case law (subsection B), how, far from being an a-national or post-national issue, the problem related to enforcement jurisdiction on the world wide web is very often at the heart of a state’s national identity.
The concluding remarks have a twofold aim. First we will explore whether and, if so, how, the future evolution of Internet law could find its place in the new transnational law era, in particular dealing with the relationship between law and technology. Secondly, a special emphasis will be given to the rise of a new fundamental right in the new season of the transnational law: the right to have access to the Internet.