This post by Wolfgang Schulz is part of a series related to the 2014 Milton Wolf Seminar on Media and Diplomacy: The Third Man Theme Revisited: Foreign Policies of the Internet in a Time Of Surveillance and Disclosure, which takes place in Vienna, Austria from March 30 – April 1, 2014. The 2014 seminar is jointly organized by the Center for Global Communication Studies (CGCS) at the University of Pennsylvania’s Annenberg School for Communication, the American Austrian Foundation (AAF), and the Diplomatic Academy of Vienna (DA). For more information visit the seminar webpage and Facebook Page. Wolfgang Schulz is a University Professor in Media Law and Public Law including Theoretical Foundations, Faculty of Law at the University of Hamburg.
During my latest research on internet policies and governance I have become more and more interested in legitimacy and knowledge problems in lawmaking during this time of “multistakeholdersim.” The Brazilian “Marco Civil” project is, for two key reasons, a perfect case of lawmaking that shortly illustrates these problems.
Firstly, Marco Civil attempts to create a comprehensive framework for the internet as the basic information infrastructure of the knowledge society and the process of drafting the law has been highly participatory (Steibel, 2012). In this regard the Marco Civil process is significant as to how it reconstructs and seeks to change elements of legitimacy at first hand. Legitimacy is key to the acceptance of laws and regulations by those affected including citizens, NGOs, governments, and corporations. Lawmaking and the question of legitimacy is, of course, first and foremost a political matter. In a democracy, the definition of what might be considered a social problem and which regulatory means should be applied to solve it, should be designed as a process of “public reasoning” (c.f. Kant, 1784, p. 490). That challenge can also be tackled by participatory means. Well-designed participatory processes have the ability to provide fora for public deliberation and collaboration.
However, in my opinion, the parliament remains the main actor in the process of lawmaking on national level. From the normative perspective of the institutional setting, it is the main task of the parliament to convey democratic legitimacy in representative democracies. Notwithstanding the importance of new participatory instruments for citizens, multi-stakeholder forums and other means of preparing legislation in representative democracies, the procedures on national level are still designed in such a way that the decision of the parliament constitutes the transfer of legitimacy.
Secondly, the Marco Civil process is remarkable with regards to the production of knowledge. In drafting this kind of internet laws the lawmaker has to anticipate the effects different solutions for a regulatory problem can have in different fields of society, in this case especially regarding free speech and economic innovation. In fact, many of the contributions to the Marco Civil draft law focus on the potential effects that the enactment of the bill might have and therefore provided the cognitive basis for lawmaking. Will a specific form of liability be likely to create chilling effects? What means of circumvention are available? What are the most likely reactions of multi national providers facing regulation? To answers these questions one needs complex internet specific knowledge.
There is in fact a group of knowledge brokers ready to fill the informational gaps the institutionalized lawmaker – consisting of the parliament and the actors participating in the new processes – may have, and those are lobbyists. Lobbyism is an important factor in the knowledge ecology of modern democracies. However, since not all interests that are present in a society have the same resources to lobby their interests there is an inherent tension with democratic principles where the process of lawmaking would be cognitively dominated by lobbyists (Lessig, 2011; Abeles, 2008). The Marco Civil process also demonstrated that the risk of participatory procedures being “high jacked” by interest groups is not a mere phantasm. There have been hints that many individual remarks on the draft had been made using the IP address space used by an organization thus there is the suspicion of political astroturfing (Lee, 2010, p. 74 f.; Ratkiewicz, Conover, Meiss, Goncalves, Flammini and Menczer, 2011; Thomas, 2013, p. 65 ff.).
Both insights lead me to the conclusion that the knowledge-eco-system of lawmaking especially in international, multi-stakeholder governance processes has to be further scientifically analyzed both on theoretical as well as on empirical level.
Prof. Dr. Wolfgang Schulz studied Law and Journalism in Hamburg. Since 1997, he has taught the optional special subject on information and communication in the Department of Law at the University of Hamburg; he has been also a member of the state office for legal examinations since January 2000. In July 2009 he completed habilitation through the Faculty of Law at the University of Hamburg, and was granted Venia Legendi in public law, media law and legal philosophy.
Since November 2011, Professor Schultz has held the university professorship in “Media Law and Public Law including Theoretical Foundations” at the Faculty of Law at the University of Hamburg. This comprises a joint placement of the University of Hamburg and the Hans Bredow Institute. The focus of this professorship is on research at the Hans Bredow Institute. Prior to that, Professor Schulz acted as deputy business director as well as head of the Hans Bredow Institute’s area of media and telecommunications, and has been a member of the board of directors since 2001. In February 2012 he was also appointed director at the Humboldt Institute for Internet and Society in Berlin.
His work emphasises the freedom of communication, problems of legal regulation with regard to media contents, questions of law in new media, above all in digital television, and the legal bases of journalism, but also the jurisprudential bases of freedom of communication and the implications of the changing public sphere on law. In addition, he works on the forms taken by the State’s functions, for instance, in the framework of concepts of “regulated self-regulation” of “informational regulation”. Many of his projects are designed internationally comparative. Twitter: @WWSchulz