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 the face of the 'threat' of online globality is not unproblematic either. The article charts ostensibly very disparate legal subject areas and jurisprudential concerns to construct a narrative on how 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, are continued and discontinued by the full-on online confrontation with 'Otherness'. Using child protection as a case study, because it brings to the fore substantial cultural and legal divergence even amongst European States, the discussion documents how States have responded to the online clashes with their distinct law spaces and the serious legitimacy concerns to which these responses are giving rise. The arguments extend to most other legal subject-matter challenged by online transnationality (e.g. various areas of criminal law, but also data protection or defamation law and even commercial areas such as copyright law).