Cyberspace and Public Space

The paper explores the concept of public space in the context of cyberspace. It argues that cyberspace qualifies as public space and critically engages with recent attempts to regulate the Internet by using the traditional concept of territoriality.

Westphalian sovereignty has been the ordering principle of national and international law. One, if not the principal, of its tenets is the concept and demarcation of territory on the basis of which we simultaneously construe inclusion and exclusion within the State and among States. Public space meets at the intersection of bounded territory and inclusion. It is traditionally a discernible physical space which is generally open and accessible to people and which serves the political aim of uniting them.

The paper argues that cyberspace provides a paradigm shift with regard to the conceptualization of the meaning of public space. Cyberspace is a topos lacking the traditional physical features and transcends State boundaries. Yet interconnectedness and proximity are intrinsic features of its technical architecture. Cyberspace creates and preserves a sense of community and collective identity in a global, trans-boundary public space. It is demonstrated that the legal concept of public space needs to be informed to reflect the parallel existence of a global public space. The author draws from instances of State practice and the ongoing work of international organizations discussing the concepts of ‘online territory’ and ‘digital citizens’. The paper also employs arguments from cultural geography, topology and network topology exploring their relevance to re-approaching the meaning of public space in law.

The ramifications of adopting a definition of ‘public space’ to accommodate new developments are evident in the legal regulation of cyberspace. Recent attempts exemplify the trend to demarcate the topos of cyberspace along the traditional territorial lines. Public law, criminal law and international law are employed in the service of territorializing and nationalizing cyberspace. It is argued that this kind of regulation fails to grasp the unique features and potential significance of cyberspace to construing a public space for the international community/communities. The paper concludes that in order to legislate a place lacking physical features we need to rethink our own conceptual and methodological legal tools and concepts.