Due Diligence in Cyberspace

Abstract

Within the chapter, the author discusses the possibility of introducing an international due diligence standard for Internet Service Providers (ISPs). She analyzes the due diligence standard in public international law as the common element of two accountability regimes binding upon states: the regime of state responsibility for the breach of an international obligation and international risk-liability for transboundary harm. They are both aimed at preventing transboundary harm originating from state territory. Such harm may presently be inflicted also with the use of cross-border electronic networks. Since the Internet is considered a global resource, the analysis provided is based upon international environmental law doctrine with its detailed due diligence standard and principle of prevention. The author goes on to propose their application to cyber-security. The idea argued within the chapter is for the development of an international cyberspace-specific due diligence standard and possibly a liability mechanism, as based on the multistakeholder principle recognized within Internet governance. The author aims to answer the question of whether a due diligence standard for cyberspace may and if so ought to be introduced through particular obligations laid upon Internet Service Providers, in particular Critical Internet Resources operators and introduction of an international ISP liability fund.