Conversely, a researcher might define a law as affecting digital rights even if its scope was not limited
to the internet and digitally networked spaces. For
instance, an intellectual property law may deal with
works produced in both analogue and digital media,
but its sections or provisions dealing specifically with
the internet or digitisation would qualify it as a law affecting digital rights. With that in mind, we could use
Gill et al.’s 42 rights38 as a kind of checklist when analysing laws of any kind for their effects on digital rights.
Finally, because law is constituted not just by
static text but by interpretation, Greenleaf emphasises the importance of international law and soft
law. In the case of data privacy laws, he specifically
refers to the OECD Privacy Guidelines of 1981 and
the Council of Europe Data Protection Convention
108 of 1981. From this approach, we can assess
whether a law affects digital rights, or a specific digital right, based on the growing body of analysis of
digital rights within international covenants and related human rights frameworks, such as the ICCPR
and ICESCR, special rapporteur reports, and their
derivatives, including the digital rights charters,
data privacy and access to information frameworks
mentioned above, as well as other frameworks
such as the UN Guiding Principles on Business and
Human Rights, etc. We would add to that interpretation of law by courts and tribunals in case law and
other types of precedent that would afford insight
not only into how laws were being applied but also
into how laws with no overt relationship to digitally
networked spaces might be adapted or abused.
We believed this triangulated approach would
help researchers recognise a digital rights law when
they saw it. Still, we knew that researchers could
not and would not read every law on the books to
decide whether or not they affected digital rights.
With this in mind, we aimed to ease the search
further by offering several entry points for their
inquiries. Working from types of law developed for
the existing laws in the dataset and category structures devised by Gill et al.39 and ARTICLE 19,40 we
38 Gill, L., Redeker, D., & Gasser, U. (2015). Op. cit.
39 Gill, Redeker and Gasser organised the 42 rights extracted from
the 30 charters into seven categories: Basic or Fundamental Rights
and Freedoms, General Limits on State Power, Internet Governance
and Civic Participation, Privacy Rights and Surveillance, Access
and Education, Openness and Stability of Networks, and Economic
Rights and Responsibilities.
40 ARTICLE 19 used six categories of inquiry when analysing
how the laws in the Internet Legislation Atlas (affected digital
rights in seven Middle Eastern countries: constitutional
protection, regulation of online content, regulation of media
workers, regulation of internet intermediaries, surveillance
and data protection, and access to the internet and net
neutrality. See: https://internetlegislationatlas.org/#/about/
executive-summary#breakdown
developed five categories41 into which we believed
the majority of laws would fall: 1) legal foundations,
2) fundamental rights and freedoms, 3) governance
of online and networked spaces, 4) sectoral laws,
and 5) other laws.
In the legal foundations category, we intended
to collect laws that (1) form part of the foundation
of the legal system and address universal rights,
responsibilities, due process or, following Gill et
al., other “general limits on state power,”42 and (2)
contain provisions that refer or apply to how an individual can exercise their rights and freedoms in
digitally networked spaces. Examples of laws that
would fit in this category include constitutions, basic laws, penal codes and codes of procedure.
We described laws pertaining to fundamental
rights and freedoms as those laws and regulations
that (1) establish norms for, enable or restrict the
exercise of fundamental rights and freedoms – including the right to freedom of expression, privacy,
freedom of religion and freedom of association – and
(2) contain provisions that refer or apply to how an
individual can exercise these rights and freedoms
in digitally networked spaces. Examples are press
laws or laws protecting or limiting the right to privacy, freedom of expression or to access information.
The drive to establish new norms in the digitally networked sphere and to mitigate the negative
potential of digital technologies – realised as computer fraud and identity theft, the circulation of
child pornography, online harassment, so-called
“revenge porn” and doxxing, for instance – has been
the genesis of many newer laws and regulations
explicitly for governing online, networked spaces,
a category developed to collect laws such as data
privacy and protection laws, anti-cybercrime laws,
and net neutrality regulations. Here, we might also
find laws or judicial decisions that acknowledge the
new so-called right to be forgotten, a concept that
did not exist before the internet.
Digital technologies have had a pervasive effect
on some industries and sectors, and the laws and
regulations in these sectors are sometimes some
of the first that deal with the new modalities of the
online realm directly and in depth. To acknowledge
this, we created a category for sectoral laws. Specifically, we sought laws and regulations that (1)
update or establish norms that implicate digital
rights in a specific sector, such as banking or health
care, or for a specific group of people, such as government employees, and (2) contain provisions that
41 ADRD Research Guidance Document (see the Appendix to this
chapter).
42 Gill, L., Redeker, D., & Gasser, U. (2015). Op. cit.
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