Space as paradigm of internet regulation

• Author: Laura Münkler
• Pages: 102-117

FRONTIERS OF LAW IN CHINA

VOL. 13 SEPTEMBER 2018 NO. 3

DOI 10.3868/s050-007-018-0031-7

SPECIAL ISSUE

PARADIGMS OF INTERNET REGULATION IN THE EUROPEAN UNION AND CHINA

SPACE AS PARADIGM OF INTERNET REGULATION

Laura Münkler∗

Abstract Right now internet regulation is standing at the crossroads. Its

problem-driven evolution has led to a conglomerate of seemingly diverse rules, which

can hardly be structured as one cohesive area of law. Nevertheless, a consolidation of

these rules as one cross-sectional field of law is can be identified. The discussion about

the terms “internet regulation” and “internet governance” as well as recent developments

in this field indicate that a paradigm shift in internet regulation is ongoing. Whereas

self-regulation has been the determining mode of internet governance for a long time,

internet regulation in the sense of public regulation is currently gaining more influence.

This transformation is accompanied by the rising importance of a traditional paradigm of

law: the idea of space. Even though the idea of space finds itself challenged with regard

to the internet, it can give substance to many different aspects of internet regulation.

Keywords internet governance, internet regulation, space

INTRODUCTION .................................................................................................................... 413

I. IS THERE SUCH A THING AS PARADIGMS OF INTERNET REGULATION?.................... 413

A. Internet Governance and Internet Regulation................................................... 414

B. Paradigms as Basic Assumptions of Internet Regulation.................................. 417

C. Recent Developments in Internet Regulation — A Paradigm Shift? .................417

D. Space as One Possible Paradigm of Internet Regulation................................. 419

II. SPAC E A S KEY FACTOR OF INTERNET REGULATION ............................................... 420

A. Space as Paradigm of Regulation in General................................................... 421

B. Three Challenges of Internet Regulation regarding Space ............................... 421

C. Space as One Formative Idea behind Internet Regulation............................... 423

D. How to Use the Metaphor of Space as a Concept of Internet Regulation ........ 425

CONCLUSION........................................................................................................................ 427

∗ Laura Münkler, Dr. jur., Faculty of Law, LMU Munich, Munich, Germany; Postdoc. (Akademischer Rat

a.Z.), Faculty of Law, LMU Munich, Munich 80539, Germany. Contact: laura.muenkler@jura.uni-

muenchen.de

2018] SPAC E A S PARADIGM OF INTERNET REGULATION 413

INTRODUCTION

The regulation of the internet is a convoluted and complex multi-layered topic.1

Internet regulation is not only based on legal norms passed specifically for the internet,

but rather a conglomerate of various diverse rules.2 As a cross-sectional field of law

addressing varying constellations and developing in a problem-driven, step by step

mode,3 divergent approaches to the regulation of “the internet”4 exist.5 The literature on

internet regulation therefore focuses on various aspects. A unifying paradigm of internet

regulation all these forms of regulation can rest upon must therefore be rather abstract.

This is especially so if one does not want to focus on the actors of regulation or how

regulation of the internet is most efficient, but instead identify a basic idea behind the

regulation of the internet. In contrast to exceptionalism, multi-stakeholderism and

self-regulation, space is not a self-evident paradigm of internet regulation.6 Still, as I will

demonstrate in the following paragraphs, a tendency to think of the internet in terms of

space and regulate it accordingly is recognizable.

I. IS THERE SUCH A THING AS PARADIGMS OF INTERNET REGULATION?

Before moving onto space as a paradigm of internet regulation, some fundamental

questions need to be addressed. To be able to identify and carve out a specific paradigm

of internet regulation, it is first necessary to clarify what is meant with the term

“regulation” on the one hand and “paradigm” on the other hand. Both concepts are far

from clear-cut. Whether there is such a thing as internet regulation and what is covered by

it depends particularly on the understanding of the term “regulation.” Having defined

what internet regulation means and clarified the term paradigm, it is in a second step

1 Andrew D. Murray, The Regulation of Cyberspace (1st edition), Routledge-Cevendish (New York),

at 52 (2007).

2 Cf. Wolfgang Hoffmann-Riem, Regelungsstrukturen für öffentliche Kommunikation im Internet

(Regulatory Structures for Public Communication on the Internet), 137 AöR (Archive of Public Law), 530

(2012).

3 European Commission, COM (2016), 288 final, at 5.

4 Speaking about “the internet” is also problematic, because of its different forms of appearance, Charles

M. Ess & William H. Dutton, Internet Studies: Perspectives on a Rapidly Developing Field, 15(5) New

Media & Society, 640 (2013); Joachim Betz & Hans-Dieter Kübler, Internet Governance. Wer regiert wie das

Internet? (Internet Governance. Who Governs the Internet and How?) (1st edition), Springer (Wiesbaden), at

39 (2013); Richard Hill, The Internet, Its Governance and the Multi-Stakeholder Model, 16(2) Info, 16,

19 (2014).

5 Sometimes internet regulation is therefore called a “conflation of unrelated issues,” see Hill, id. at 16;

Michèle Finck, Digital Co-Regulation: Designing a Supranational Legal Framework for the Platform

Economy, 15 LSE Legal Studies Working Paper, 4 (2017), available at https://papers.ssrn.com/sol3/

papers.cfm?abstract_id=2990043 (last visited Jun. 19, 2018).

6 For reconstruction of multi-stakeholderism and exceptionalism as paradigms of internet regulation, see

Jean-Marie Chenou, From Cyber-Libertarianism to Neoliberalism: Internet Exceptionalism, Multi-

Stakeholderism, and the Institutionalisation of Internet Governance in the 1990s, 11(2) Globalizations,

205–223 (2014).