[bestbits] [governance] Public interest and multi-stakeholder participation, was Re: Call for Participation: Global Congress ..

Fri May 22 04:45:02 EDT 2015

Hello

Yes, it would be extremely useful to compile info on how the public interest and similar concepts have been dealt with in different countries, legal systems, and languages.  I’ve pointed this out several times in various ICANN discussions but I’ve seen no indication yet that this will be taken on board in the effort mandated by the current strategic plan to devise a ‘consensus definition’ specific to ICANN’s operations.  It’d be problematic if the only source material considered is drawn from e.g. US domestic telecom regulation.  It’d also be problematic if the promised community dialogue on the matter actually turns out to be staff/board-controlled process.  That’d be another easily avoidable misstep but there are alas precedents and thus far there are no clear signs to the contrary.  Hence the workshop proposal is an attempt to encourage an open dialogue, one that goes beyond people engaged in the ICANN environment.

Of course, a broad debate could easily turn into an indeterminate mess.  Even within ICANN civil society, the debates thus far have revealed strong disagreement about whether we should even try to think this through.  Some people maintain that the term is so vague and intrinsically undefinable that any deeper discussion will simply be captured by powerful commercial interests or governments.  They point to the so-called Public Interest Commitments that have been incorporated into contracts which sometimes include excessive intellectual property protections, and to Government Advisory Committee efforts to limit strings ‘in the public interest,’ as evidence that abusive appropriations of the term are inevitable.  Others argue that it is the very lack of any shared understanding that invites such abuse, and insofar as the concept is already being cited as a rationale in various international instruments, trying to at least bound if not precisely define it before we throw our hands up is worth the effort.  And that’s just civil society—once all the other parties start to weigh in with their preferred formulations, the divisions will presumably deepen and become more complex. 

It may be worth recalling that ten years ago a lot of people argued we could never arrive at a consensual definition of Internet governance.  Governments and stakeholders were advancing preferred definitions that happened to suit their respective material and ideational interests, and the WSIS process was looking likely to end in a train wreck. Whether we could have concluded the Tunis Agenda without at least a working definition of the core point of contention is an interesting question.  

Best

Bill

> On May 22, 2015, at 9:43 AM, Anriette Esterhuysen <anriette at apc.org> wrote:
> 
> Dear Mishi
> 
> This is very helpful. Would be good if people can share definitions from
> their own jurisdictions.
> 
> Anriette
> 
> 
> On 21/05/2015 22:46, Mishi Choudhary wrote:
>> Thanks Bill! This will be useful. Different jurisdictions talk about the
>> term differently.
>> 
>> In Black's Law Dictionary  "public interest" is defined as follows:
>> 
>> Public Interest something in which the public, or some interest by which
>> their legal rights or liabilities are affected. It does not mean
>> anything the particular localities, which may be affected by the matters
>> in question. Interest shared by national government
>> 
>> 
>> 
>> I can remember long discussions about this term during an important
>> education related case in India on which I worked at the turn of this
>> century. Herein below, I quote:
>> 
>> 
>> "Public interest means those interest which concern the public at large.
>> Matter of public interest 'does not mean that which is interesting as
>> gratifying curiosity or love of information or amusement; but that in
>> which a class of the community have a pecuniary interest, or some
>> interest by which their legal rights or liabilities are affected' (per
>> Campbell, CJ., R. v. Bedfordshire, 4E and B, 541, 542).
>> 
>> 
>> The expression 'public interest' is not capable of
>> precise definition and has not a rigid meaning and is elastic and takes
>> its colours from the statute in which it occurs, the concept varying
>> with the time and state for society and its needs. Thus what is 'public
>> interest' today may not be so considered a decade later.
>> 
>> 
>> On 05/21/2015 08:42 AM, William Drake wrote:
>>> Hi
>>> 
>>> In light of this discussion, I thought I’d bring to peoples' attention this workshop to be held at the IGF meeting in Brazil in November:
>>> 
>>> No. 52 The Global “Public Interest” in Critical Internet Resources
>>> http://intgovforum.org/cms/wks2015/index.php/proposal/view_public/52 <http://intgovforum.org/cms/wks2015/index.php/proposal/view_public/52>
>>> 
>>> Would be happy to see folks and continue the conversation there.
>>> 
>>> Best
>>> 
>>> Bill
>>> 
>>>> On May 20, 2015, at 7:20 PM, George Sadowsky <george.sadowsky at gmail.com> wrote:
>>>> 
>>>> This is one of the best expositions of the multi-stakeholder model and the importance of the orientation toward the global public interest that I have ever seen.  Thank you, Anriette.
>>>> 
>>>> In some quarters, multi-stakeholderism has almost become a religion, to be accepted on faith, with doubters shunned and excluded.  IMO this is counterproductive both to understanding the possibilities of multi-stakeholderism and to employing when it is the right model to use.   As Annette implies, there are all sorts of implementations of multi-stakeholderism, some where people come together on an equal footing, some not. Multi-stakeholder organizations are a means for achieving a goal, and it's the nature of the goal that affects who are to be considered the stakeholders and how they should be included in the multi-stakeholder process.  The goal is the important element, and determines the means. 
>>>> 
>>>> I like Annette's discussion of the public interest, and how it opens a debate.  
>>>> 
>>>> Multi-stakehoder processes exist because there are competing interests at play.  The hope is that this form of organization will be effective in producing a least unacceptable output across the set of stakeholders.  Different stakeholders will naturally claim that their point of view is the best, and Annette's requirement that they define their view of the public interest and then state why their approach best serves it.  Shedding this kind of light on a decision is likely to produce one of the better outcomes possible.
>>>> 
>>>> Thank you again, Annette.
>>>> 
>>>> George
>>>> 
>>>> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 
>>>> 
>>>> 
>>>> On May 20, 2015, at 10:41 AM, Anriette Esterhuysen <anriette at apc.org> wrote:
>>>> 
>>>>> Dear Jean-Louis
>>>>> 
>>>>> I don't personally use the 'equal footing' term. Configuration of
>>>>> participation depends on the issue being discussed and accountability
>>>>> involved. The term equal footing creates unnecessary confusion and can
>>>>> be interpreted as saying that government and public sector actors don't
>>>>> have an important role or specific responsibilities. It can also be abused.
>>>>> 
>>>>> If one is developing a national action plan on local content creation
>>>>> having all different stakeholders involved 'equally' would be good, but
>>>>> I would want to see particularly strong participation of people from
>>>>> libraries, arts and culture and education ministries, content and
>>>>> creative industries and so on. I would like to see large entertainment
>>>>> companies, but also small independent producers and film makers, writers
>>>>> and artists and people from cultural minorities.
>>>>> 
>>>>> I would be concerned if government or big business had a louder voice in
>>>>> this discussion than other stakeholders, as that might end up silencing
>>>>> some voices, and reducing diversity of views. But that does not mean
>>>>> that we don't need to hear from government, or from big business.
>>>>> Although I would hope they use the opportunity to listen, not just speak.
>>>>> 
>>>>> If it is a decision about how to tax global internet companies they
>>>>> should have a voice in the pre-policy consultation process, but they
>>>>> should not be making the decision. That is a decision that needs to be
>>>>> made - transparently - by governments and intergovernmental
>>>>> institutions. I would like civil society to be involved in this and I
>>>>> would like public-interest economists to give input, and for the media
>>>>> to be present so that we have more transparency. And I would like the
>>>>> tax collection agencies to speak too.... as they know whether compliance
>>>>> is likely to take place or not.
>>>>> 
>>>>> On public interest.. for me the power of this concept is that it opens a
>>>>> debate. It forces a discussion on what the broadest possible public
>>>>> interest is. Just having a room full of different stakeholders will
>>>>> bring you diversity, but they might just all talk about what it is
>>>>> matters most to them as interest or stakeholder groups. So governments
>>>>> might talk about national security, operators about intermediary
>>>>> liability, civil society about freedom of expression...
>>>>> 
>>>>> ...but if the obligation of the discussion is to serve the broadest
>>>>> possible public interest they must all make the case of WHY the position
>>>>> they are advocating for will serve that interest, and state how they
>>>>> understand the public interest.
>>>>> 
>>>>> And one should not make assumptions about who will argue for what. E.g
>>>>> in some countries at present, small private sector content producers are
>>>>> much more concerned with having a publicly funded public broadcaster
>>>>> than government is. To assume that governments are in all cases the most
>>>>> reliable custodians of the 'public interest' is wishful thinking.
>>>>> 
>>>>> Perhaps I am being naive, but in my view having a public-interest
>>>>> orientation makes a big difference. And that is why I was so pleased
>>>>> when the NETmundial statement said that internet governance should be in
>>>>> the public interest.
>>>>> 
>>>>> It defines a common purpose, and a common measure - even if there will
>>>>> still be different views of what serves the public interest best.
>>>>> 
>>>>> I often say to telecom regulators - am actually in an event with African
>>>>> regulators this minute - that their role is not primarily to balance
>>>>> interests among operators - their role is to protect and promote the
>>>>> interest of users/consumers/the public.
>>>>> 
>>>>> Jean-Louis, I will not be in Geneva, but from APC there will be Shawna
>>>>> Finnegan from APC staff for part of it, and Aida Mahmutovic who is on
>>>>> APC's member council, representing our member in Bosnia-Herzegovina.
>>>>> 
>>>>> Warm greetings
>>>>> 
>>>>> Anriette
>>>>> 
>>> 
>>> 
>>> 
>>> 
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>> 
>> 
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*********************************************************
William J. Drake
International Fellow & Lecturer
  Media Change & Innovation Division, IPMZ
  University of Zurich, Switzerland
Chair, Noncommercial Users Constituency, 
  ICANN, www.ncuc.org
william.drake at uzh.ch (direct), wjdrake at gmail.com (lists),
  www.williamdrake.org
Internet Governance: The NETmundial Roadmap http://goo.gl/sRR01q
*********************************************************

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