Challenges faced by international Law due to a digital transformation

Internet technologies, particularly social media, have transformed communications and revolutionised transfer of information in the modern era

• Integration of digital technology into all areas of human life, including economic, political, and social spheres
• International Law is instrumental in maintaining global order and stability
• attribution of cyber-attacks to specific entities or nation-states remains a challenge

The following are excerpts of a statement made by Minister of Foreign Affairs Ali Sabry on the importance of knowing the challenges to international Law in the wake of digital transformation at a recent event of the KDU
In this era of rapid technological advancements, the digital transformation has brought about unprecedented opportunities and challenges to various sectors, including the realm of international law. 
Digital transformation refers to the integration of digital technology into all areas of human life, including economic, political, and social spheres, fundamentally changing how we interact, communicate and conduct business and operate.
From the rise of Artificial Intelligence (AI) and automation to the proliferation of the Internet of Things (IoT), blockchain and cloud computing, these technological shifts have redefined the global landscape, including legal frameworks.

WHAT IS THE SIGNIFICANCE OF INTERNATIONAL LAW IN MAINTAINING GLOBAL ORDER?

International Law provides a Legal framework for regulating interactions between states, protecting human rights, promoting peace, addressing transnational issues, preventing conflicts and promoting cooperation among nations.
Thus, International Law is instrumental in maintaining global order and stability. It embodies shared values and principles that guide states in their interactions and contribute to a more peaceful and stable world.

DIGITAL TRANSFORMATION

The digital transformation has significantly impacted the field of international law, presenting both new opportunities and challenges.

MAJOR INTERNATIONAL LAW 

01.Jurisdictional and Sovereignty Issues:
The borderless nature of the digital world complicates traditional notions of jurisdiction and sovereignty. There are complexities of determining jurisdiction in the digital realm.
Internet technologies, particularly social media, have transformed communications and revolutionised transfer of information in the modern era allowing users to generate and disseminate content widely.
Defamation in the context of international law and the digital transformation raises complex legal and jurisdictional challenges.
Extraterritorial Application:
Some countries assert extraterritorial jurisdiction over online defamation cases. 
International Defamation Standards: There is no single international defamation standard. Nations have varying legal approaches to defamation, ranging from strict liability to requiring proof of actual malice.
Transnational Remedies:
The digital transformation has necessitated the development of mechanisms for transnational remedies.
Hence, International law ought to provide mechanisms (norms and standards) for verification of publications especially take steps to monitor and stop publications that spread hate

Defamation and hate publications in the digital age present significant challenges for international law. 
02.Data Protection, Privacy and Security:
The digital era has witnessed an explosion of data-driven activities, leading to heightened concerns about data privacy and security.
Repeated LinkedIn Data Breaches (2012 & 2021) LinkedIn has established itself as one of the most important platforms for business professionals to connect with each other in the modern age. Unfortunately, that has made the professional network service company a target of repeated hacks and breaches. 
03.Cyber-security and Attribution:
The attribution of cyber-attacks to specific entities or nation-states remains a major challenge. 
04.Intellectual Property and Digital Piracy:
Intellectual property faces numerous challenges in the digital era.
With the ease of sharing and distributing digital content, enforcing IP rights across borders becomes arduous.
i.Piracy and Unauthorized Distribution:Digital technology makes it incredibly easy to reproduce and distribute copyrighted materials without authorization. 
ii.File Sharing and Streaming Services: The rise of file-sharing and streaming services has further facilitated unauthorized sharing of copyrighted content.
iii.Digital Rights Management (DRM):DRM technologies attempt to protect digital content from unauthorized copying and distribution. 
iv.Fair Use and Copyright Exceptions: Determining what constitutes fair use or acceptable copyright exceptions in the digital era can be complex. 

v.Global Nature of the Internet: The borderless nature of the internet poses challenges for enforcing IP rights. 
vii.Counterfeit Goods: The online sale of counterfeit products has become a significant issue. 
viii.Open Source and Creative Commons Licensing: Open source software and Creative Commons licences promote the sharing and modification of content, often with fewer restrictions. 
ix.Challenges in Enforcement:Enforcing IP rights in the digital world is complex and costly.
x. Concerns:Efforts to combat IP infringement can raise privacy concerns.
xi.Evolving Business Models: Traditional business models in creative industries are being disrupted by digital technologies.
xii.Cyber-attacks and Data Breaches: Intellectual property is vulnerable to cyberattacks and data breaches. Hackers may steal sensitive IP, trade secrets, or proprietary data, leading to economic and reputational harm.
xiv.Intellectual property in the wake of AI has given rise to new challenges 
As AI systems become more sophisticated and capable of producing creative works and innovations, it is essential to update to regulate the implications of these advances on intellectual property (IP) law.

A key issue in copyright law is determining authorship for AI-generated works.
Similarly the rise of AI has implications for patent law, particularly in relation to inventorship, ownership, and the inventive step requirement. Also use of AI in the creation and selection of trademarks raises concerns about whether AI-generated trademarks should be eligible for protection and how to assess their distinctiveness.
The rapid development and application of AI in various fields present significant challenges to intellectual property law. 
05 E-Commerce and Digital Trade:
The growth of e-commerce and digital trade has created challenges for international trade laws.
06.Cyber Warfare and International Conflict:
The emergence of cyber warfare as a new dimension of conflict has strained traditional norms of international law. 

ADDRESSing  CHALLENGES:

To effectively tackle these challenges, international law must adapt to the realities of the digital era:
Adapting international law to effectively address cyber threats is a complex and on-going process.
01.Harmonization of Laws:
Efforts to harmonise data protection, cyber security, and e-commerce laws across countries can provide a more coherent framework for addressing transnational digital challenges.
02.Norm Development or norm building
International norms of behaviour in cyberspace can guide state conduct and help prevent malicious cyber activities. These norms can guide states’ actions and responses to cyber incidents. Efforts to establish norms, such as the Tallinn Manual and the Paris Call for Trust and Security in Cyberspace, aim to shape responsible state behaviour in cyberspace.
03.International Agreements:
Crafting new international agreements or updating existing ones to address cyber threats is crucial.
04.Enhanced Cooperation and Information Sharing:
Encouraging states to share information about cyber threats and incidents can lead to quicker and more effective responses. Strengthening Institutions:
International organizations such as the United Nations and regional bodies can play a crucial role in facilitating dialogue, mediation, and dispute resolution related to digital challenges.
05.Capacity Building:
Supporting less-developed countries in building their cyber capabilities is crucial for a balanced global response to cyber threats. 
06.Cyber-security Due Diligence:

Encouraging states and non-state actors to adopt cyber-security best practices and due diligence can contribute to a more secure cyberspace.
07.Applying Existing International Law:
Many principles of existing international law, such as the principles of sovereignty, non-intervention, and human rights, are applicable to cyberspace.
08.Dispute Resolution Mechanisms:
Developing mechanisms for resolving cyber-related disputes can prevent escalations and help states peacefully resolve conflicts arising from cyber incidents.
International courts, arbitration, and mediation can provide avenues for settling disputes related to cyber activities.
09.Public-Private Partnerships:
Collaboration between governments, private sector entities, and civil society organizations is crucial. Private sector companies often hold valuable information about cyber threats, and partnerships can facilitate information sharing and joint efforts to combat threats.
010.Multistakeholder Approach:
Involving various stakeholders, including governments, businesses, academia, and civil society, in the development of cybersecurity policies and norms can lead to more comprehensive and effective solutions.
Further recommendations which could be adopted in Sri Lanka 
01.Local laws have to evolve in order to address the needs of the digital era.
02.It is important to establish of a Standing Committee for Law Reforms: This involves a comprehensive and forward-thinking approach. The Committee must engage in the following;
i.Assessment of Current Laws: Start by conducting a thorough assessment of existing laws and regulations related to the digital environment in Sri Lanka.
ii.Stakeholder Engagement: Engage with a wide range of stakeholders.
iii.Legal Framework Development: Draft new legislation or amend existing laws to address specific digital issues.
iv.Data Protection and Privacy: Develop comprehensive data protection and privacy laws that align with international best practices, such as the General Data Protection Regulation (GDPR). Ensure individuals have control over their personal data, and organizations are accountable for its protection.
v.Cyber security Regulations: Implement cyber security laws and regulations that require organizations to establish robust security measures, report data breaches, and cooperate with law enforcement in cybercrime investigations.
vi.Electronic Transactions and E-Government: Facilitate electronic transactions and the use of electronic signatures by providing legal recognition and standards for these practices.
vii.Intellectual Property in the Digital Age: Update intellectual property laws.
viii.Digital Accessibility and Inclusion: Ensure that laws promote digital accessibility and inclusion for all citizens.
ix.Consumer Protection: Develop or strengthen laws that protect consumers in digital transactions.
x.Digital Rights and Freedoms: Safeguard digital rights and freedoms, including freedom of expression, access to information and protection from online censorship.
xi.Enforcement Mechanisms: Establish effective enforcement mechanisms and penalties for violations of digital laws.
xii.Capacity Building and Awareness: Invest in capacity building for legal professionals, law enforcement, and the judiciary to ensure they have the knowledge and skills to handle digital cases.
xiii.International Cooperation: International standing committees, Collaborate with international organizations, neighboring countries, and global partners to align Sri Lanka’s digital laws with international standards and norms.
xiv.Regular Review and Adaptation: Recognise that the digital landscape evolves rapidly.
xv.Parliamentary Approval: Present the proposed laws and amendments to Parliament for debate and approval.
03.Establishment of a Parliamentary Standing Committee on Digital Transformation.
The Standing Committee must work in collaboration with the Standing Committees for Law Reforms and make recommendations inter- alia on transforming the Sri Lankan economy by advancing digital transactions, improving cybersecurity and data protection, advancement of laws in line with the digital advancement, develop digital literacy etc.
04.The Supreme Court must establish a Standing Committee for digitalization.
05.Capacity building initiatives -

CONCLUSION 

Digital transformation has significantly reshaped the landscape of international law. As technology continues to evolve, it is imperative that our legal frameworks evolve as well to address the complex challenges posed by the digital era.