Barbarians in Our Midst: ‘Cultural Diversity’ on the Transnational Internet

Abstract

Much has been written on jurisdictional problems arising out of the transnationality of the internet in various legal fields. This article approaches this jurisprudence from an angle that emphasises the underlying substance of the concerns - by joining it with the quite separate discourse on ‘cultural diversity’ in the age of globalisation. The discussion comes partly as a response to those who believe that legal harmonisation is, or would be, impracticalities aside, the Holy Grail to many online regulatory problems. It is not. At the same time, the retention of ‘cultural diversity’ and its implicit endorsement by States in face of the ‘threat’ of online globality is not unproblematic either. The article outlines pre-internet incidents of globalisation (i.e. trade liberalisations in the EU and under the WTO as well as the creation of universal human rights) that triggered the emergence of ‘cultural diversity’ as a distinct value protected by various legal concepts and regimes. Yet, it is argues, these trends are both continued and discontinued by the full-on online confrontation with Otherness. As this all-pervasive Otherness cannot be contained where ‘it belongs’, it becomes a threat to cultural identity, including its legal manifestations. Using child protection as a case study - because it brings to the fore substantial cultural and legal divergence even amongst European States - the article explores how States may respond to that perceived threat and what this response means for our substantive rules, regulatory mechanisms and the ‘national’ legal/cultural space. These arguments are applicable to any legal subject-matter challenged by online transnationality (e.g. data protection, defamation law and even commercial areas such as copyright law).