© 2004 by Oxford University Press
Lessons from ICANN: Is self-regulation of the Internet fundamentally flawed?
1 Legal Affairs Manager, Shell Philippines Exploration B.V.
Internet regulation is not an ‘all or nothing’ debate. Government regulation dominates the physical layer, but it is fragmented over many legal jurisdictions. Self-regulation dominates the code layer it is powerful and unique because the code is global, cross-border and pervasive. Government regulation dominates the content layer, but is fragmented over many legal jurisdictions. Policymakers in the dominant legal systems (the EU and the US) have long considered Government regulation and self-regulation to be complementary, instead of mutually exclusive approaches. Internet governance, as it has evolved to date, can best be described as a complex tapestry of Government regulation and selfregulation. The Internet Engineering Task Force (IETF), the World Wide Web Consortium (W3C), and the Internet Corporation for Assigned Names and Numbers (ICANN) are the principal mechanisms for selfregulation in the code layer. These mechanisms fit awkwardly with traditional political and legal concepts that are used to test regulatory bodies, such as accountability and democratic legitimacy. In 2002, ICANN embarked on a reform process. This is a work in progress and it is too early to gauge its success. Sceptics of self-regulation in the code-layer will have to draw comfort from the rapid growth of Government regulation, and that these can be effectively marshalled to counteract the most serious abuses (such as anti-competitive conduct).