OECD Internet Policy Plan Needs Careful Interpretation
Written by Leslie Harris
Today the Organization for Economic Cooperation and Development (OECD) formally adopted as Recommendations the OECD’s Communiqué on Principles for Internet Policy Making. The Communiqué, agreed to by the OECD’s thirty-four member nations in June 2011, sets out a series of overarching commitments and principles intended to guide the development of Internet policy in member states. While neither the June Communiqué nor today’s newly adopted Recommendations are legally binding, the OECD’s Recommendations have a strong track record as normative pillars that serve as strong influences on national and international debates and policymaking. Additionally, the OECD uses adherence to the Recommendations as one factor for evaluating nations seeking membership in the organization.
Back in June, the specific principles laid out in the Communiqué generated considerable controversy. Questions arose about how they might implicate a number of the specific policy challenges that Internet policymakers face: cybersecurity, online child safety, intellectual property protection, privacy, and so on. Indeed, the civil society delegation to the OECD (of which CDT was not a member) chose not to endorse the document.
But today, by adopting as Recommendations not only the full set of principles in the Communiqué but also the document’s preamble, the OECD sent a clear signal that faithful adherence to the new Recommendations requires a complete reading and interpretation of the principles in context. The principles cannot be divorced from either each other or from the preamble, which sets out the goals of the document. Each individual principle needs to be interpreted in a manner that is consistent with both the preamble and with the other principles; they are mutually reinforcing. Any ambiguity must be resolved in favor of internal consistency.
Just as important, even as different member states pursue different approaches for confronting challenging issues presented by the growth of the Internet economy, they should strive for ways that are consistent with the three overarching commitments, or “framework conditions,” that can be drawn from the preamble and the principles:
- Openness: The principles document is framed by a strong commitment to maintaining the openness of the Internet; it is a “framework condition” that is echoed throughout the document. Individual principles need to be read in a manner that respects this framework condition of openness; the development of public policy solutions in signatory nations to address specific concerns such as privacy, online child safety, or intellectual property protection must be consistent with an open Internet.
- Respect for Human Rights & Rule of Law: The principles also insist that “policymaking associated with [the Internet] … be grounded in respect for human rights and rule of law.” CDT believes that interpretations of the principles must be consistent with the norms articulated in these seminal human rights instruments and must comport with the plain language and the jurisprudence developed under these widely adopted instruments.
- Multi-stakeholder approach to policy development: The Recommendations clearly favors the use of decentralized multi-stakeholder governance mechanisms to develop Internet policy, recognizing that addressing emerging policy challenges while preserving the Internet’s open nature is not a simple task: technology moves quickly and tensions between equally legitimate rights and interests will arise.
As member states, and potential member states, review these Recommendations and continue to develop their policies around crucial Internet issues – from the protection of intellectual property to the protection of children – it is evident that they must do so in ways that are consistent with Internet openness, respect for human rights and the rule of law, and the multi-stakeholder approach to Internet policy development.