Protecting Rights Online

Although the human rights and access to knowledge (A2K) movements share many of the same goals, their legal and regulatory agendas in the area of Internet governance have historically had little in common. While state censorship online has been a principal concern for human rights advocates, this issue has not been a central focus of the A2K movement. Likewise, human rights advocates have failed to examine the cumulative effect of expanding copyright protections on education and culture. Overcoming this divide and identifying areas in which the two movements can collaborate on issues of Internet regulation is critical to ensuring that they are able to draw on their respective strengths to address the pressing issues we face in protecting rights online.

This Article bridges the “human rights/A2K divide” in two ways. First, it explores how the historical development of each movement has led them to view the harms associated with online content—and thus the solutions that might address these harms—in very different ways. This history indicates that the most promising avenues for collaboration will be with respect to issues on which state authority is limited because of international obligations or the absence of resources or commitment on the part of the state. Second, building on recent literature concerning the design of international institutions, the Article develops a model of “flexible harmonization”—employing imprecise but binding international norms—that responds to the regulatory concerns of both the human rights and A2K movements. The Article then uses this model to evaluate two proposed regulatory frameworks for Internet governance and examines the conditions under which a model of flexible harmonization can be employed in other contexts.