Lex digitalis:
the regulation of the internet

Leading Researcher:

Andreas Fischer-Lescano

Participating Researcher:

Canelle Lavite

The lex digitalis is another legal arena where new forms of rule-making are subject to a broad societal discussion about the normative challenges of transnational law. The lex digitalis is shaped by a variety of different institutions. The central actor of this multi-stakeholder governance schema is the Internet Corporation for Assigned Names and Numbers (ICANN) and its Domain Name Dispute Resolution Policy (UDRP). The sub-project on the lex digitalis will draw on existing foundational works in order to systemize the hybrid transnational legal forces of the lex digitalis, but it will also enlarge their scope, in particular, with reference to recent debates on legal policy and normative aspects. These debates recently culminated in the NETmundial Global Multi-stakeholder Meeting on the Future of Internet Governance which took place in São Paolo, Brazil, in May 2014.

Against this background, the sub-project will identify the core normative conflicts of the lex digitalis. A preliminary assessment shows that eroding the principle of network neutrality would seriously weaken the barrier between economic influence and political governance of the lex digitalis. Further core themes will include the challenges posed by an ever expanding state security and intelligence apparatus and the role of private companies (Google, Facebook, etc.) in this sector. In particular, large-scale data mining have become usual operational means for the purposes of governmental surveillance or advertising, while digitalization of the correspondent processes has contributed to their opacity. The influence of these actors calls into question the democratic accountability of such processes as well as the protection of fundamental digital rights, inter alia, the right to privacy and the integrity of information and communication processes in the lex digitalis, thereby undermining the normative demand for justice in the arena.

The erosion of fundamental digital rights also poses serious risks for processes of democratic legitimation. This is also reflected in the recent debate on whistleblowing, where private interests collide with the need for public disclosure of information as a requirement for participatory and democratic decision-making. The research will address these fundamental normative challenges of the lex digitalis, in particular, the questions regarding the violation of individual and collective rights and the implementation of democratic structures within the specific framework of the lex digitalis. Here, participatory aspects, the problem of accessibility and the creation of anaudience in spaces for contestation will be the starting points for the elaboration of the normative dimension of transnational force of law

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relevant publications

Article

2014
Andreas Fischer-Lescano
Der Kampf um die Internetverfassung
Juristenzeitung 69, pp. 965-974.

Article

2016
Andreas Fischer-Lescano
Internationalrechtliche Regulierung des Whistleblowing. Anpassungsbedarf im deutschen Recht
Arbeit und Recht 64, pp. 4-9 and pp. 48-57.

Book chapter

2016
Andreas Fischer-Lescano
Putting proportionality in proportion: whistleblowing in transnational law
in: Blome / Fischer-Lescano / Franzki / Markard / Oeter (eds.): Contested Regime Collisions. Norm Fragmentation in World Society. Cambridge: Cambridge University Press, pp. 324-346.

Talk

2016
Cannelle Lavite
Les lanceurs d'alerte: coupalbe ou héros? Comment améliorer leur protection en Europe et ou Luxembourg
Talk for Collectif Tax Justice Lëtzebuerg (Luxemburg).

Interview

2016
Cannelle Lavite
Snowden, Manning, Deltour - Snowden, Manning, Deltour - muss de Schutz vu Whistleblower verbessert ginn?
Radio interview, French. Radio 100,7 (Luxemburg)