By Nelson Remolina Angarita

** Text translated from Spanish to English by Luisa Ricaurte Espinosa, GECTI.

Various expressions have been used to refer to certain phenomena occurring in cyberspace. Initially, the word “Internet” was used – without any qualifiers. Subsequently, the term “Internet of things” began to be used and I have also heard about the “Internet of people”. I suggest including in the list the following expression: “Internet of Corporations” (IoC).

In my opinion, the “Internet of Corporations” synthesizes, in large part, what has happened to the regulation of the Internet. The “Internet of Corporations” has set the fate of the Internet and its users because it has been over-regulated by companies, who use their “legal notes” or their “terms and conditions” to establish the rules that will regulate the destination of more than 3.5 billion people from all over the world according to data from February 2017.

This text is part of a series of documents that I have written to share some preliminary ideas about my perception of Internet regulation. It aims to show both the reality of the “power on the Internet” and the “fragility of the protection of human rights in cyberspace“.

These reflections are not against the business activity, nor the entrepreneurs. They start from the respect of what many constitutions order in the following terms: “Economic activity and private initiative are free, within the limits of the common good” (Article 333 of the Colombian Constitution). They are only academic observations that can be useful to understand the true purposes of many speeches, conferences, events, papers and documents that are being published regarding the Internet and technological innovation in the name of the “common good” or “general interests”.

Our assessments do not refer to all companies, or to any particular organization (although we will mention actual cases). That is why, when companies are mentioned, we are only making reference to “some companies”. Our statements cannot be interpreted in absolute terms because they are mere general references to consider in the analysis of particular situations.

At the end of the series of texts it is suggested the need for real, effective and innovative intervention of the States in the activities on the Internet to protect the rights of people in cyberspace. We believe that we need to act and not wait for others to do what we can do from our countries. The local regulator and national data protection authorities are central to this task.

We cannot be passive and uncritical observers about what is happening legally with our rights on the Internet and in cyberspace. We must reformulate many current legal things that were designed for a medieval world without technology.

Cyberspace is the world of the twenty-first century, which is full of technologies and is hyperconnected through the Internet. National and international legal responses should be different if we want good results. “If you are looking for different results, do not do the same thing” (Albert Einstein)

 

What is the “Internet of Corporations”?

The “Internet of Corporations” refers to the rules that entrepreneurs have created to conduct business or provide services on the internet. They are the guidelines that entrepreneurs consider sensible under their business model to earn profits. Ultimately, the “Internet of Corporations” is the Internet that companies want it to be to earn money.

These regulations could be referred to as “business laws“, which are part of the Binding Corporate Rules (BCR). These are the rules that in the middle of 2016, for example, govern more than 1.8 billion users of Facebook, or people who daily make more than 4.1 trillion searches on Google and, in general, the human beings who access to just over 1,1 billion web pages available on the Internet.

As we can see, we are facing a reality of enormous magnitude that involves the “digital economy” and the effective protection of the human rights of trillions of people on the Internet.

 

From “Internet of Corporations” to “Internet of States”

Business activity is free and the Internet is the ideal setting for doing business. Internet emerged as a territory outside the intervention or regulation of the State. It was born as the no man’s land, which in no less than two decades has been invaded by all and regulated by the most influential and powerful: entrepreneurs.

The historical role of entrepreneurs in the construction of law is undeniable. Just review the history of commercial law. What happened centuries ago with the commercial law, is being replicated in a few decades with the right of Internet. The difference is that the history of commercial law was told by others, but the history of Internet law is happening right now. At that time, medieval merchants wanted rules that fit their needs, nowadays Internet entrepreneurs have imposed their standards on trillions of people from all over the world.

The “Internet of Corporations” has colonized much of the activities on the Internet. Faced with this colonization, the States have issued laws that affect the activities carried out by companies on the Internet. These state regulations have arisen for a number of reasons, including the protection of general interests, the protection of the human rights of its citizens, and the protection of consumers of electronic commerce. Many of the objectives of state regulation were summarized in the joint declaration on electronic commerce of the United States and Europe of December 5, 1997.

In short, the companies first arrived to the Internet, who established their rules for doing business and making money. Later, the States arrived to fulfill their constitutional objectives. Nevertheless, the asymmetry between these two colossus – the companies and the States – of the history of the Internet is notorious for the reasons that we will show next.

 

The commercial purposes of corporations and the constitutional missions of States.

The purposes of the enterprises and the objectives of the States explain the aim of the rules of each. While the goal of a business is to earn money, the State’s mission is, in general terms, to “serve the community, promote general prosperity and ensure the effectiveness of the principles, rights and duties enshrined in the Constitution” (Article 2 of The Constitution of Colombia).

The objectives of the companies are drafted in their bylaws and are defined unilaterally by the employer, while the purposes of the State are defined in the Constitutions of each country and are democratically agreed.

As it can be seen, the purposes of business and the purposes of States are diverse. However, they are not mutually exclusive. Business and due protection of human rights are matters of great importance for some companies. The same is true with innovation and human rights.

The “big data”, cloud computing and the Internet of things are creations of the “Internet of Corporations”. Behind each one, there is a business model that aims to earn money. The aspects that deserve more reflection and analysis are, among others, the following:

• Is it enough what companies do to guarantee the rights of people on the Internet?

• Do foreign companies that conduct business on the Internet respect the local human rights standards issued by States?

• Do foreign companies that do business on the Internet and are not domiciled in a given country, should collaborate with local authorities in that country to enforce the protection of people´s rights on the Internet?

• Do foreign companies that do business on the Internet and are not domiciled in a certain country, must comply with the instructions of the local authorities of that country to make effective the protection of people´s rights on the Internet?

• Do foreign companies that do business on the Internet have to comply with local laws, or should national authorities submit to “business Internet”?

 

To be continued ……..