chapter  2
49 Pages

Regulatory competence over the internet

Introduction Before answering the question of how online activity is or should be regulated, the fi rst question is who , i.e. which state, has or should have an entitlement to do so. 1 In the purely domestic legal context the answer is too obvious to require further thought: where an activity falls within the territory of only one state, it is that state which regulates it. On an international level states are the main players sharing regulatory space between them and each state has regulatory control over its respective territory. The internet complicates this otherwise simple allocation rule as online activity seems to occur everywhere and nowhere in particular. The question then is which state has the right to regulate which site or online activity? The underlying generic issue is by no means new; allocating competence (or jurisdiction) over transnational activity to national regulators has been done for centuries. In the more recent past, transnational trade and environmental pollution, international travel and migration have all had to be accommodated within national legal regimes. Yet, the explosion of online activity has added a new level of acuteness to the inherent confl ict between transnational activity and national law. And this issue of deciding who has competence over what affects the whole spectrum of online activities and attached legal concerns. The regulatory palette that has triggered primary questions of regulatory entitlement is wide-ranging from criminal or regulatory law on pornographic, gambling, pharmaceutical, banking and terrorist sites to civil law disputes concerning defamation, data protection and privacy, contracts and intellectual property rights.