Brazil best practice: Bill of Rights
15 SEPTEMBER 10
SESSION R/N 9
BRAZIL BEST PRACTICE: BILL OF RIGHTS
Note: The following is the output of the real-time captioning taken during Fifth Meeting of the IGF, in Vilnius. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.
>> CARLOS AFONSO: Hi, good morning. So this is the session on best practice and original perspectives on civil rights framework for the Internet in Brazil. My name is Carlos Afonso. I'm the Vice Coordinator for the Centre of Technology Foundation in Rio. We are going to have a couple short presentations to present key issues of the whole process of the civil rights framework. And a couple of minutes, we will be just putting those screens, the link where you can have access to the English version of the draft of the review of the civil rights framework, so you can join us in the debates and help you to take a look on the provisions and on the controversies of the whole initiative.
We will have a number of speakers just for quick presentations. The first one is Carlos Affonso Souza from Brazil Internet Steering Committee, and is going to present the principles for Internet Governance, which is not the civil rights framework initiative but part of the initiative that has many connections with the initiative that we are presenting and discussing here. I believe the principles for Internet Governance are by the Brazilian Internet Steering Committee. It is a relevant document for us, to help understand the whole process that is going on in Brazil. Carlos, if you want to...
>> CARLOS AFFONSO SOUZA: Thank you. I must say in the beginning that I have a hearing problem, and this noise in this room will make it very difficult for me to hear what you say. I hope I don't say anything too, that you don't have to ask me too many questions because I probably will not understand them. I hear myself. (Chuckles).
Okay. Let me start by saying that these principles have been established --
>> Let me take off the headset. You have to speak loud. That is all.
>> CARLOS AFFONSO SOUZA: I understand. Okay. Let me start by saying that Brazil is a functioning representative democracy. And it is probably one of the countries in which to give an example, freedom of expression, freedom of the press is completely complete, and it sometimes even creates problems for everybody, because it is a state in which you have ability to express yourself. You have the ability to go ahead and say what you want. And sometimes people say that in Brazil we have freedom of, not freedom of expression but also freedom of the press which is the big companies, the big press companies which sometimes abuse very strongly of this freedom.
But this is no reason to change the situation and we are very happy with that. I am doing this preamble because in some of the workshops, there have been many statistics that have been publicized by the economist and put Brazil in the first place regarding requests to remove contents from very known information services.
I would like to stress that all of this have been made through a new process, legal process, and nearly all of them refer to violation of constitutional principles, and especially questions of rights. Brazil has large communities of users of many services international throughout the world. Brazilians are many users of many services and large providers. I would like to stress that. We are there because there is a due process. There are a lot of violations of basic rights. This due process is really to request for removing content because of these violations, exactly like it would happen in any other circumstance, with any other technology. Okay? So this is what I would like to stress at the beginning. I'm sure colleagues of mine will be able to discuss more about this.
The principles for the governance and use of the Internet were established in Brazil which is organised in the following way. It is supervised, or there is an oversight of multistakeholder commission, which includes members of the Federal Government, representatives of states governments, and a majority of civil society sector at large, including private sector community and nonprofit organisations. Discussion leading to these principles took more than a year, exactly because it is discussion in multistakeholder environment. It was very difficult for us to establish the right words which would enable us to approve this by consensus in this multistakeholder environment.
This is a good lesson. It was a very good lesson for us and is a good lesson for anyone that follows the Internet Governance processes in Brazil, how to arrive at consensus guideline of multistakeholder discussion. This was not imposed by any sector of the government, was not imposed by any sector, any private sector or any of the society or political organisation. This is consensus of all of us.
We have this everywhere and I'm sure you have read it already and you know about it. I would stress that we try to follow the schematic of the World Summit of information society, in what it relates to Internet Governance, and especially the semantics of the IGF. I would only say that at the beginning, I would be glad if I can hear you to discuss all these issues. Thank you.
>> CARLOS AFONSO: Thank you, Carlos. Carlos was saying about the principles for Brazil Internet Governance. I like to stress that in the principles for Internet Governance that the Brazilian Internet Steering Committee has established, there is a connection on this initiative and some other international initiatives.
We have just ended the Dynamic Coalition on Internet rights and principles meeting. It is important to highlight here the relationship that can be made between international perspective, international initiative, international perspective and international initiative because when we think about the role human rights played in IGF since its beginning, the Dynamic Coalition used to call Internet Bill of Rights in beginning in Athens, and later on changing its name to Internet rights and principles, which it has been one of the places in IGF where you can go to debate, to discuss the role human rights represents in the whole Internet Governance process, especially in IGF.
What is interesting here is that in this meeting in Vilnius, the coalition has presented the first draft of its charter. It has just been presented. We are here to discuss the so-called charter, what we call in Portuguese that can be translated as civil rights framework. There is clearly a connection between international perspective and international experience, international one.
One clear conclusion that we can make out of the situation, is that it's always easier at international level for you to reach consensus, to reach an agreement, because you are departing, you are looking at one specific political legal culture, and we are talking about international perspective and international initiative as the Internet rights and principles. It is always complex because you are dealing with different cultures. You are dealing with even different concepts of law and different legal traditions.
In any case, I believe it's important for us to look at both process and to see the connections that can be made from the process that has been doing in IGF and Dynamic Coalition and process has been going on in Brazil. I would ask Guilherme Almeida from the Ministry of Justice to discuss how this process has begun in Brazil, and the construction, the building of participation process and is open as possible in Brazil.
>> GUILHERME ALMEIDA: Good morning. It is a pleasure to be here and tell you a little about our work concerning the Brazilian framework for Internet. It is important to stress that it started as a request from society. Brazil, many activists, they started the process in which they request the rights in Brazil Internet. In Brazil, we have a framework for a data protection, which is not quite efficient. We are working on laws for that. But we still have the process as well and there was a Bill of Law concerning Internet crimes, and people fear that such Bill of Law could harm their rights.
We had a scenario in which data protection and criminalization of many conducts over the Web could mean diminishing human rights over the Internet. So movement started. And they requested civil rights be granted on the Internet. Based on that, Ministry of Justice decided to initiate a process to discuss the rights on the Web, and in this initiative, we divided it in steps.
The first step, we made an open discussion, in the sense that based on the white paper, in which we wanted to check, to verify with society which rights would be granted. So we made a discussion which had three main access. First, citizens' rights on the Internet; second, which were the responsibilities of people acting in Internet, persons or companies; and third, which would be the duties for the state, in which respect Internet promotion and Internet Governance.
So we have the discussion of almost two months of these things, and it is important to stress that we have some documents and some other case which featured as reference for this process. First of all, Brazil constitution and our civil framework stands as a way to implement Brazilian constitutional rights and Brazilian fundamental rights into Web environment.
Second, Brazilian Steering Committee for governance of use of Internet, civil framework stands to crystallize into law some general principles which represent what is stated some Internet experiences concerning the discussion of rights and principles for the Internet.
In first phase in this open discussion were more than 800 comments over these different aspects. We had this discussion in block style Web sites. We tried to separate this white paper into small chunks. Each chunk was available for comments. So we had more than 800 comments for this white paper. And then based on that, we wrote a draft Bill of Law concerning those three topics and concerning as well most of the comments that were received.
We presented this Bill of Law in this block style form in which every single paragraph was available for comment. And in whole, we had more than 2,000 comments. By now we are finishing, we have finished the revision of the Bill of Law based on users' comments, on those 2,000 comments. We now are finalizing analysis within the Brazilian Government and within many issues that are involved such as communications, science and technology and initial planning.
We have finished this process and we expect to send this bill throughout the congress until the end of the year. One thing we learned in this process is that it is really possible to use participation in process. Ministry of Justice has specific Secretariat which is focused on the legal laws and degrees. We tried in this sense to amplify participation, and in short quite useful way to make things.
More than that, we have participation through this process really fundamental, as long as it could legitimate not only the initiative but also enhance, improve its quality with variety of contributions. In general we expect to have a new framework for civil rights in Brazil, and we think that this procedure in which we search participation from citizens in order to improve it may be possible as a reference and element available for discussion. Thanks.
>> CARLOS AFONSO: Thank you. Expanding upon Guilherme's presentation, I believe it is important to highlight that this opportunity that has been offered for people on Internet to contribute to debate, to criticize, first the general principles, and then the actual draft of the law, that is creating a wave of change in the way laws are made in Brazil. Two major controversial topics that has been excluded from democracy view initiative which is the copyrights, intellectual property, and the other one, the full-fledged legislation on privacy and protection of personal data, those two issues are being submitted right now in Brazil to a process that is somewhat similar to the one that we have with democracy view.
When it comes, when it relates to copyrights, we have a form of discussion of copyright law in Brazil, and somewhat similar process, similar Web site has been put up by the Ministry of Culture to allow people to discuss, criticize, contribute to the reform of the copyright law. I believe the first step has been created in showing it is possible to open up a Web site, to gather criticism, to gather commentaries, and that has been happening in Brazil. It has just ended the period for contributions and the reform of our copyright law.
We are now in debates regarding the law on personal data and protection of privacy, go in the same way or not, in which way this public consultation can be made, but the point here and it is important point to be stressed out is that this process has created an impact on how you deal with regulation in the Internet in Brazil. And further than that, we used to say if everything goes wrong, democracy view has at least created a very positive effect, which is it has created an effect that people that are doing their daily activities on the Internet has learned to debate, to criticize, to discuss about the rights that pertains, that are related to those daily activities on line.
So there is a very educational purpose behind democracy view which is in a country in which breach is a problem. We still have lots of people that are not connected. For those that are connected in Brazil, democracy view has been very educative, to get people to discuss the rights related to those daily activities.
Those screens here, behind the tables, you have a link. In this link you have the English version of the draft of democracy view. We were not able to distribute in paper here. So we put up this link, so that you could download the English version of democracy view. Of course the version you can find easily on line. But I'm just putting this link for your reference. The link is http:girietoriio.fgv.br/nodes/907. It is not a fancy link. But in any case that is a place where you can find the English version of the democracy view.
We have one final remark about this link. The version that you have access to is a version that has a small change in the actual, in the version that we are now discussing and dealing with, which is a change in the article 20 of the democracy view, which is the topic of our next presentation from Ivo Correa from Google, because that is a most controversial article which deals with ISP and service providers' liability. We had faced huge criticism, huge debates against first wording of this article. So the history behind this change, and how this debate has been going on in Brazil, I believe that is one of the most important topics for us to discuss here.
I know that there will be a workshop on ISP liability in the afternoon. But in any case, as we are here together to discuss the whole process of democracy view, we believe it is important to address the ISP liability. So could you take on this discussion?
>> IVO CORREA: Good morning. I'd like to thank the organisers for the invitation. For me it is a pleasure to be here in this debate. My role as Carlos mentioned is to discuss a little bit the liability issue in democracy view.
But as was mentioned in the beginning we have to for a minute comment the point. I believe there is a simple discussion around an article published by Economist one or two week ago that mention some data Google published six months ago, so it is not new, about governing request around the world. The main confusion here I guess for the Brazilians is to be honest a translation confusion. The Google too and the economist in the article refer to public sector and public entities. For Brazilians, Portuguese, Government means executive branch. When we read Government, we read like secretary branch, and the two actually represents moreover to make things work in Brazil. Prosecutors are not, well, they are part of the executive branch but it is slight connections, quite different from other systems.
So we don't understand prosecutors as executive branch of Government. To be clear, requests are all requests we see from public entities, including prosecutors, court orders, and other form, politicians, congressmen, etcetera. But just to be fair with Google, and I invite you to visit the Web site. It is google.com/governmentrequests.
Please read the article because it is really useful. But to be honest, to clarify what was said in the beginning it is not only court orders. There are also request as I said from others, prosecutors or authorities. Second, there are no child safety cases there. As we explained in the FAQ, there are no child safety cases there. 90 percent of the cases in Brazil relates to defamation and impersonation cases. This is really the two, and we are able to discuss this and other issues afterwards.
So now coming back to the workshop, I'm sorry for this, now, as mentioned before by Guilherme and Carlos Afonso, the Brazilian democracy view takes up a right of fundamental issues regarding the Web, like access to knowledge, privacy and neutrality among others.
From my perspective, a central aspect of the proposal is the attempt to establish a clear legal framework for Internet liability in the conference. As all of you know, all of you know the important role that safe harbours for Internet play. Users generate content. Legal safe harbour for Government is relevant. It is relevant to say without safe harbour there wouldn't be Google, YouTube, Facebook, to mention the most famous nowadays. But without safe harbours there wouldn't be almost anything that we now call Internet, the Web. As you probably know better than me, what you probably don't know is that current Brazilian legislation doesn't provide a clear framework to deal with complexities of user generated content. To make things worse, as happens in other countries, most judges, prosecutors and lawyers are not familiar with technology, technological aspects behind the Web.
Therefore, often Brazil Internet users have to face one of the following situations in courts. On one hand, be treated as a traditional media company, like a newspaper or broadcaster, as if they had editorial control over the content that is published on the platform by end users. On the other hand, they have to see all Internet activities treated as commercial relations, when considered liable for any kind of actions by the users, like posting of pictures, posting of video. You can only imagine the consequence of this. Google for instance is defendant in hundreds of lawsuits, for hosting specific content posted by one of our users, even though in the majority of the case removing the content as soon as we got notification. As I said, more than 90 percent of the cases in Brazil are related to either defamation or impersonation.
To give an example of the situation, let me remind you that in Brazil, the director start two months ago. In this short period Google is already defendant in more than 100 cases regarding original content posted by our users. This is clearly reality for the Internet company like Google. But imagine, that is not the point here, as imagine the following information. My dear friend Carlos is a Brazilian entrepreneur who has a great novelty, great novel ideas. He is convinced he had great technology that can compete with YouTube. He wants to create to compete in Brazil or even better he can run a new social network in Brazil to compete with Facebook, Twitter, and he starts Afonso Book, let's say.
Now his technology is pretty good. People say, can I register my domain name right now. Now, his technology is really good. His user interface is awesome. So Carlos Afonso Book are getting lots of users. However, in one, two or three months he will find himself as a defendant in tens or hundreds of lawsuits.
Can you imagine how successful, start in an environment like that? Finally, Internet company are only type of companies facing this situation in Brazil. We have a huge amount of decisions concerning postings by blogs. It is clear, a framework for Internet liability is bad for Internet companies but more important is bad for innovation in Brazil. So that was just a background, a new introduction that I want to do before addressing what happened in the democracy view itself.
Discussion began with a proposal by the Ministry of Justice of TMC, safe harbour for intermediary in the Brazilian system. Due to the huge amount of cases involving defamation we have in Brazil, there were a lot of different comments in the blog, both Guilherme and Carlos Afonso mention, and there was a discussion of take down system, where the content can only be removed after a court order, or after due process and a court observation of the case wasn't better, especially Internet activists were relevant with this. A lot of proposals came on this way.
I think that the main example here is the recent reform, corporate reform that Chile have done, where the judicial take-down was established. After I think two or three weeks of discussion of this in the blog of the democracy view, the Ministry of Justice decided to change the original text and propose a traditional takedown system which is the last one that has been discussed since then. The main debate after that is on the copyright issue. The copyright owners in Brazil are now saying that the number of cases in which they are involved are so big, that if they had to get a court order to every removal, it will be like a huge cost for them, and also a lot of time and judicial process that will be involved.
So I think that to sum up here two things. One is democracy view had this great initiative to address, finally address in Brazil the safe harbours Internet liability thing. I think this is pretty important as I said not to Google or YouTube or to any big company, I think it's important for Brazilian innovation of the Internet and Brazilian users. Secondly, I'm not sure what is the best system. I totally understand the concerns with freedom of speech.
But I also can see the problems on the side of the corporate owners. I think the debate is, is the judicial takedown system better. I think all of you from different countries can help us on this debate.
Finally, to get back to my first point regarding the Government request too, because I forgot to mention something, Google said many times, when we launched in Brazil six months ago, launch internationally, we decide in Brazil many times I want to say this thing for you, that Government request for removals of data, we don't understand that as censorship. That is a completely different situation. We are giving the numbers so people can see what is happening in each country.
I guess this is my part here, and I'll pass it to the next speaker. Thank you.
>> CARLOS AFONSO: Thanks, Ivo. Clarification, we have scheduled two more brief speeches, and then we would like very much to hear from you, because as for now, we only have Brazilians speaking. And of course, this is not a Forum for Brazilians to speak to themselves, because, well, we don't need to come to Vilnius to speak among ourselves. We can do this in Rio de Janeiro as Ministry of Justice would certainly prefer. But in any case, I would like to ask Jamie from Brazilian Steering Committee and then the external relations ministry to make their short presentations, so that we can open up for debates and hear from you about this initiative and your perspectives on those issues that we are breaking out here. So Jamie.
>> JAMIE WAGNER: Hello, thank you. I would like first to introduce myself, as a private sector representative in Brazilian Steering Committee.
I am an owner. I own a start-up company that Google wants one day. But we have, the market is a challenge much greater now than the legislation.
I would like to say that when it comes to regulation, and that's what we are speaking here, private sector, in any place, and it is not different in Brazil, is not averse to be cautious in this regulation, but the balance is excess and lack, so I like to position myself in the middle. I'm not a cultural freak, neither libertarian, but still we are here to talk about how to regulate without infringing individual rights.
I mean how the state or society can prevent or punish individual or, when I mean individual, can be a company abuse, without incurring in a state or social abuse. I'm very glad to say that the main initiatives in Brazil came from the society, and not from the Government, not from the state, from the society.
The Steering Committee in Brazil is a society organisation. It is not a state organisation. It is not a Government organisation. The Government participates, but it is not a majority. And there were the principles came up about, and I'm very glad also to say that the Government initiative orchestrated by the Ministry of Justice here represented was very inclusive and wise in its construction, both concerning the scope, the what, and the process, the how. Although it's a process on the go, what has been shown and reported by Guilherme until now deserves applause, applause from the private sector. Internet can be used or misused to foster democracy.
I think this process of participation is, that was an example. The very first example was the process of democracy view in Brazil is something that deserves applause, but can be misused, if at the end of the process there is a decision made by some, and the process is used to validate this decision that is made by some.
I mean, but what has been shown is that the Government has been sensitive to what has been said along the way. And the very example is the one cited here by Ivo, the changing in the process of judicial takedown notice, and this is something that I represent the ISPs, not only Google, I represent a bunch of 2,700 ISPs in Brazil. So, well, Google is one of the greatest, biggest.
But I mean that this is something that was very discussed, and the ISPs as a whole accept the judicial take-down notice as prefer there. But I'm here to report self-regulation and I would like to mention two of them. The first one is what we call caped; it is something related to spam. There was already on the go in the Brazilian congress, many, more than 20 projects of law relating to spam. We found that instead of fighting spam, it would be wise to regulate what would be the good E-mail marketing, so we made a code of conduct. We brought together associations from the consumers, advertisers, and ISPs, and also the publicity agencies. And what comes out is a technical paper that describes what is, and it is a reference paper, what is a good E-mail marketing piece, ethic, both technical and ethical aspects.
And now we are putting up a way of receiving the users' complaints of bad behavior in order to have some instructive action, to instruct people on how to make a good piece of E-mail marketing.
We are not obviously fighting 99 percent of the spam, but at least the 2 percent that are E-mail marketing that is naive, we intend to make them professional.
The other initiative is the blocking of port 25, and it is also relating to spam, spam fighting. And this was with the participation of both the ISPs and the carriers. So it is ongoing process, and we intend to block port 25 to inhibit the use of computers from residential users by block nets and this will probably take effect this next year.
So all these initiatives are of the society, no Government involved, and they both go to the place of regulating and making the Internet in Brazil a little bit safer for the end user.
>> CARLOS AFONSO: Thank you. We ask Livia from the Ministry of Foreign Affairs to make the presentation.
>> LIVIA SOBOTA: Thank you, Carlos. I promise you I will be the last Brazilian to speak at least for now. I am from the Ministry of External Relations. From our point of view, this is a very important case because of its assertion both in its content and in its process of elaboration of basic human rights and basic democracy.
It is really important to us that both the internal and external policy of Brazil expresses the same principles, and we are sure that this is the case. It is also emblematic of our position historically at the IGF, because we have been defending that in order to be based on the human rights and oriented to the development, the policies concerning Internet must be open, Democratic and transparent.
That is how it is managed. That is what the ten principles you have received express. And that is why the freedom of expression and the rule of law are pillars of our constitution. After all, there would not be so many people and organisations debating this draft bill, and we would not open this very debate here at IGF if it was restricted and anti-Democratic process in our own country.
I think we can benefit in this debate, much as expressing our experience with this draft bill, but we would like to hear from you, how do you deal with these matters in your country? Because it is not about closing the Internet or controlling what people do on the Internet, but establishing the Internet as an environment where the human rights are respected, such as any other environment in our society. Thank you.
>> CARLOS AFONSO: Thank you, Lydia. And I believe it's clear that this session has a two-way purpose. One purpose is for us to have this presentation of the initiative, so we bring together Government, academia, society and business centre, to present the initiative in Brazil.
More important is to hear from you what are your impressions, debates on those issues. We have a lot of controversial topics in democracy view, such as liabilities of ISP certainly is one of them, but not the only one. We have a little bit of personal data, neutrality, right of access, fundamental rights. So there are a bunch of topics that could be discussed, and certainly would not be able for us to go deep in all those topic in the time that we have. But in any case we would be comfortable for us to hear from you about those topics.
So do you have any questions, comments? Please go ahead.
>> My name is Andrew, based in Britain. I want to first of all commend everybody in Brazil from civil society and the Government for this exercise which is exemplary and one that many other countries could learn from.
I have a question about what the likely basis of the principles would be which is maybe for the Ministry of Justice. My apologies, I don't fully understand the Brazilian constitution in the way that the law is enacted. But if the principles will be presented to congress as a law, is that the logical stage? Will the principles have a status of higher law in relation to existing law? So if for example, you have a problem with your defamation law in relation to freedom of expression, and it sounds like what I heard on the Google presentation, it is an issue in Brazil, will free expression principle here override the provisions of defamation law in Brazil, or will the courts have to interpret both the existing defamation law, and these principles, side by side?
I think what would be very interesting is if this was given some higher law or constitutional status, so that it shapes implementation of other laws. But I'm curious to know how you are thinking about taking law within the legal system.
>> Actually some of these principles are already in Brazilian constitution. So they have this higher status. They stand on a higher level, and which concerns principles which will be established in law. What happens is they stand as a further interpretation source for Brazilian courts. Courts will have to balance several legal principles, and they stand to reinforce Internet site and make it possible for balance. It will be considered among with other principles as well.
>> Can I do a complement, from my perspective. What is said is the system in Brazil, for instance, that is why I suggest the case here. In our experience, and this has to be with nothing to do with democracy, has to do with private law tradition in Brazil. For instance in electoral courts in Brazil, the personal image against freedom of expression, personal image is always more important. Defamation is almost the rule there. That is why you have 100 cases in two months which is a lot.
>> I would like to point out that in Brazil, I think as in Britain, as well as in Britain, I think a judge can judge by himself. It is a matter of culture, much more than law. I agree with, when Ivo says that in Brazilian culture, not in Brazil law, the personal image has a higher stand than freedom of expression. I would say from my understanding that in the United States, I would say it's the reverse. But it is the culture of the country. It is something that is in the law. The law reflects the culture. It is not something that --
>> Let me make a quick comment, asking the people who have subscribed to make comments. Just to build on that, we will talk about rights of image, which will be better translated in English as right of publicity; I don't know if that makes more sense.
But in any case, when we are talking about defamation cases, and I believe this is clear what we are talking about, in Brazil, when we are dealing with some issues related to image, we have like one article about the right of image in our city code as well as one article about privacy in our code. So we have to go to the code, to the constitution. When you go to the constitution, you have the general statements of fundamental rights. And then you have again general statements saying like no one is allowed to violate to infringe the other person's image and privacy.
That is almost the exact words, the wording of the article 5 of our constitution that deals with image and privacy. So if you take privacy as an example, we have now in Brazil very broad articles in our constitution, and we have no intraconstitutional law that tackles privacy as a whole.
When it comes to deal with privacy in Brazil, whether you have to deal with the constitution, and there are broad wordings for the articles, or you go to specific legislation, that deals with consumer law, and you go to the consumer law in Brazil, you have an article on privacy. But that is what you get. So if you are a judge, and you have to decide about a defamation, about violation of privacy or line in a social network or something like this, you have to deal with those broad articles, those broad terms.
That can lead to decisions that can put some more effort on privacy, or can put some more weight and some more force in freedom of expression.
But we do not have a standard balance in our constitution that says that freedom of expression has a higher priority than privacy, than right of image. And in Brazil we are going through a lot of change laws that deals differently with very similar cases. This is the situation that we are having now in jurisprudence. Again, we have some people who have subscribed to make comments. So Chiavo is the first. Go ahead.
>> CHIAVO: Thank you, Carlos. Good morning, everyone. My name is Chiavo. I'm from Brazil, from institution responsible for Brazilian Cybercrime and Reporting Centre. The speech regarding the governmental request, I'd like to highlight some few words that can help us to understand, better understand what we are doing in Brazil regarding this data requests for the law enforcement in judicial branch, as well as taking down content on Google's product.
As Ivo reminded, we, myself and Ivo, we defend Brazil in special committee regarding Internet use, and this public hearing was realized to discuss implementation of agreement that Internet, Google and Brazilian federal prosecutor services sign in July, 2008. In this public hearing, we noted that after this agreement was signed, Google brought forward almost 14,000 different cases regarding child sexual abuse, which is most important discussion inside Brazil and nowadays, we have almost 3,000 different case that was brought, reported by Google to Brazilian law enforcement authorities regarding child sexual abuse on this social networking site.
This is a huge problem in Brazil. It is important to clarify that all these reports were revised by Google staff, and was brought forward by Google to the Brazilian law enforcement authorities. Brazilian law enforcement authorities has the obligation to request a court order in all these cases. It is important to clarify that in Brazil, the law enforcement agencies don't have employees to request personal data or users' data from the ISPs directly.
They need a court order. This is the first point.
The second one is in this public hearing, Ivo said that Google received almost 8,000 court orders between July, 2008 and February, 2010 regarding case of defamation and human rights violations. In these court orders, involves civil actions from individuals, Brazilian citizens, that use Google's products in the country, victims of crimes regarding defamation and violations, etcetera. Google complies with this judicial orders. So it's very important to clarify that the information Google requests, specify what kind of court order involved defamation case, cyber bullying case, violation case involving human rights violations on Google's products in Brazil. This is really important because we are not talking about censorship.
It is very important to clarify and highlight. We don't have similar scenario in Brazil like you have in other countries, where the Government request removal of the content from the ISPs. The situation doesn't occur in Brazil. In Brazil, in the case of Google, removal of content, report to Brazilian law enforcement authorities for sexual abuse cases, and a court order is needed to get information of users who subscribe information. I would like to clarify this and this effect. In Brazil, the judicial branch deals with the external negative, users of sites on Google's social networking. It is important to discuss liability in Internet area, responsibility.
>> CARLOS AFONSO: Thank you. We have later on opportunity for our fine friends to debate as well.
>> I would like to comment. Welcome, everybody. My name is Vito. I work for the Ministry of Defense in Lithuania for this meeting this week. I've spent 12 years on defense and cyber defense issues, very much involved. Before that I worked for the communications and information society programme. So I have also perspective on freedom of expression.
I can make a general comment that I'm very much impressed about the freedom of expression issue in Brazil. I don't think it is much of an issue here in Lithuania. Here it is more abuse of the Internet, going after sites that provide files to download copyrighted film material, movies, pornographic sites. The only defamation case I'm aware of is when somebody was writing a book. But so far we are pretty much free to talk in blogs. And Google is not in court here in Lithuania; just a general observation. I found it very interesting to hear, to compare with Lithuania. But my question concerns this pamphlet that was passed out yesterday on the principles.
You can't hear me? Is there a way to increase the volume?
Do I need to repeat everything I said? My question concerns ten principles. Most important my question concerns the comment on principle number 7, on accountability of the network. All action taken against those responsible for such activities, supporting the principles of freedom, privacy and human rights. In this part of the world, we have events on Internet.
One was in 2007 when Estonia received a cyber attack, some political motivation between the Russian speakers and Estonia, and what happened was, Estonian banks were forced to shut down because they were under a cyber attack. Political parties, sites were also shut down by an attack that became so severe that eventually Estonia had to pull the switch on the Internet. This disconnected the whole country from the Internet for several hours.
Those that tried to investigate, the addresses were not where everyone thought, from Russia; no, IP addresses were from Egypt. So the question of attribution was a big issue in trying to investigate these cases, attribution. Someone is in control of these dot nets, command and control, and can make it look like it's coming from another country.
The next incident was 2008, when Georgia received a cyber attack. The Government was shut off from all news and couldn't communicate with its people. The country was being invaded by other country's military forces. It was in concert with a military operation.
Again, who do you find responsible? I know in Lithuania, there was a defamation of a Web site; a picture was replaced. We would be interested in finding out who is responsible.
Now, for example, hypothetically, if Lithuania determine the IP address was in Brazil, what cooperation according to this principle number 7, how would this principle apply? Can a Lithuanian ISP or Lithuanian communications regulatory authority contact somebody in Brazil at the MFA, or local police, saying this address is a bad address, it is attacking us? Or this address is an ISP that is refusing to cooperate?
If you say this principle, you have to take action only at those responsible, and it's very hard to find out who is responsible. But you can say it's this ISP, their address list, to shut this down, can we get cooperation. Or if that ISP says no, this is our customer, we will let him keep staying on Internet, he will attack you, can we take action against the ISP and say you are interfering with our abilities here in Lithuania?
Can someone please explain to me how this issue can work? Just a comment about the freedom of expression. I think the world is changing; about 20,000 court cases based upon application of the law. We are going to have to accept that we are going to lose some of our freedoms at the expense of having a more secure Internet. This is just going to happen. I don't see it any, any way else how it could be. It is not going to be like it was in the early days. Thank you.
>> A quick answer. I'm not trying to circumvent the problem. Get closer to the microphone.
Item 7 is listed basically for internal use, not to try to solve a problem with going after, leaving the real authors free. We understand itself is a neutral point. Of course, if you have technical issues, you can act technically. If you have a denial of service, you have to block IP addresses. This is not in this 7th point to be treated in different way.
What we are saying here is if you use the legacy, go after who is responsible, not for an attack, but for any action, we cannot use the simple and fast way to shut down the network itself. We are saying if you have problems with people, come from some city and doing wrongdoings here, we don't want to collapse the network to stop the bad things. Of course in technical specific situations, you have to act technically and try to minimize the problem.
But if you are trying to send a message, you have to keep clear who is responsible for what part of the network.
>> May I add explanation here. The attempt is to be guideline for legislators, and use for new laws and apply the old laws. So what is intended here is not so it's easy to blame the ISP that is visible. But not to take, he is not to take the blame, but is obliged to find the real responsible -- I mean, he must cooperate, and even in your example, he would be obliged to shut down, but he cannot take the blame and pay the banks for their damage. No, he would be obliged to take down the offender, real responsible, and this is the real responsible is the one that has the site. He can be shut down.
But the ISP cannot take the blame for the damage that he caused. That is the spirit.
>> I can't say enough about how much I appreciate the Brazilian initiative. I said to many separately, but I should say, I would be more interested to see how what you are doing can impact what is going on, actually what is happening, what you guys are doing, what you are talking about.
It is great to see that you have found the right way how Internet should be used in a democracy. It is completely public interest centered, the focus of public interest for standard policy making. I'm sorry to say what happens in most models around us, the way the model is participating to society, whereby you can enter the system, you are comfortable, whoever can be present at the table. All these things I like and is the way to go for other countries.
I'm interested to hear if some of you can talk about how you have some kind of a model in place and processes in other countries, taking some initiative. How is it we can streamline the process? What are things we can contribute and make IGF process we are following.
>> To start, there is no short and quick and easy answer for that. But for sure, that is when the government can usually get upon that, but I think it's important here to highlight that one first important message that democracy due process creates for Brazil, and that could be something to be shown abroad to create a good example on how to deal with Internet regulation, is that you should not fear to have an open and collaborative process to discuss, to debate the actual regulation of certain very controversial Internet issues.
Of course, as I have mentioned, not everyone that's sat at the table to discuss democracy view are in perfect thinking the same. To the contrary, the oppositions, the conflict of ideas was the spark that created many of the articles of democracy view in trying to contemplate this diversity in the whole process of democracy view itself.
Thinking about the Brazil's position and what democracy view could represent from a more global perspective, the process of Internet Governance, we had a meeting in Brazilia two weeks ago, and I believe this meeting is quite important, because it was a meeting that was led by the ministry of foreign relations, that invites academia, civil society, Government, to business centre, to discuss issues we are debating in the IGF. This is important because we always got together in some seminars and events, but it's important for, from Brazilian perspective for us to hear what the order has to say about the crucial issues of Internet Governance.
That meeting two weeks ago proved very useful for us to coordinate and to have a broader picture of what Brazil has to offer in terms of Internet Governance. Of course, democracy view is one of the examples of good practice, of best practice, that can be shown. Of course, it is not perfect. But for us it was a major step to have this collaborative and open process of consultation.
Maybe one of the contributions, one of the examples democracy view could bring is that you can have, and it's possible to have a good and profitable and organised discussion, an open Forum and people can contribute and debate. Maybe that is one of the best ways to have a glimpse of the diversity of interests, diversity of the multistakeholder purpose in a process like this one.
The second step is not only to deal with the collaborative process, but to have this process aim at human-based Internet Governance process, and we have been repeating this like a mantra, but it is important to make this point clear.
If you have this open process, you can have a better and more clear and more transparent human rights-based Internet Governance. I believe this is the first step democracy view can represent in a global scenario. But I believe...
>> I'm sorry, I can hear myself but I will be brief. I think I speak now on my own behalf. But the main contribution to these debate, it was not its initial goal, but the collateral consequence is that I think the Government cannot be seen just multistakeholder environment; the government can be in a proper regulatory perspective, can be strong aligned to the environment. In order to say sure that the public interest is really the focus of all the stakeholders together, the figure of the Government is a solution.
So in Brazil, it was with interaction of stakeholders but by the action of the Government that this discussion made by the Internet open and Democratic has taken place. I think internationally, we can look at it the same way. How can the Government be part of the Internet Governance without threatening the other stakeholders, but by the contrary, helping to protect the rights, that assure that the other stakeholders can participate in this system.
>> I will begin saying that I have a dream. And this dream is that this example of principles can serve as a common ground for consensus, because I think that while participation is bottom/up, participation can be used to be certain kind of agreement to some decisions that are made by some. So I think that the real consensus comes top/down. So that is why we tried to state these principles very broad to serve as a guideline.
But mainly, the main focus of this is the Government, because Internet has to the Government present true innovation. State in the global arena is not, has not the same power it had before. When I mean state, it is not only executive Government. I mean also the judiciary, jurisdiction is not any more at stake here. So there is some guidance needed to new decision-making in the Government sector.
This guidance is what we tried to figure in this principles. I don't see any other way than to have these principles discussed everywhere in all countries, and if they are not enough, okay, come up with some other. But if we agree in this new global arena, that is the Internet, and to have guidance principles, to all governments, to all stakeholders, this is what I think would be best.
I don't think we in Brazil are in the best position. We don't have this public interest above everybody. It is fierce competition and interests, individual at stake as everywhere. But if we did, it can be done anywhere. That's my dream.
>> What we achieve is when a representative can start a speech by saying, I have a dream. One of the best things achieved in this collaborative work is when the private sector representative on the committee can start a speech by saying, "I have a dream." I hope businesses are less political about the processes and going beyond just their own interest, but interested in the common stakes we have. The Government can put together, when they create an environment when people come together, discuss their own interest, certainly to do that. But there is something much more than what they are ready to commit to, which somehow has not happened in my view in the ideas, and I'm interested to see how we can get that done. Just a comment on how I appreciate what has gone on here in Brazil.
>> Thanks. I am Carlos Gregorio from Research Institute for Justice, an institution that work in Latin America. And I wish to clarify to point out about the presentations of both the people from the industry. In my understanding, the judicial decisions made in Brazil has a little difference that is necessary to clarify for a better understanding.
The most clear, the most illuminated judicial decisions in Brazil found the awards for damages on product liability, and not our content liability. It is a great difference. The judges say that the applications and the signs and dangers, the people from the industry compare the United States with Brazil in a difference of culture or of a difference in freedom of speech. I feel that this difference, there not exist.
The difference is, it is true that in United States there is a unity for the providers in terms of content. But there is not any unity for product liability in United States. This is clear. There is separate kind of cases that we should be -- defamation, for instance. It is true there is not responsibility for providers like Google or Yahoo! about indexation. Indexation is clearly part of the freedom of speech act. The recent decision in Argentina don't recognize responsibility for Google and Yahoo! for indexation. To close this point out, I think that we must maintain judicial competence that is essential in all matters, and also we must maintain the level, the excellent level of access to justice that exist in Brazil, also for compensatory damages.
This is not a problem for the freedom of speech in the Internet. Thank you.
>> I'd like to go back to the issue, give the floor to -- we will go back to the issue of liabilities, as Carlos just mentioned. I'd like to give the floor to our colleague.
>> I am from electronic frontier, and briefly I'd like to commend Brazil for doing this the right way, starting with principles, and if details need polishing, it is well done for now. But prompt me to ask something, the Lithuanian gentleman's comment that we should give up our freedoms to get secure Internet. The Internet is not secure. The world is not secure. And we will not make it secure by giving up essential freedoms.
I'd like to read for the record a quotation from 200 years ago. They who can give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety, said Benjamin Franklin in 1775 and it still applies even to Internet. Thank you.
>> I'd like to make a comment and we go back to the liability issue.
>> Just a quick comment. I did not mean to say that we are going to lose our freedoms at the expense of Internet because of security. I'm saying that there is going to have to be a balance. It is not going to be as free as it was. I wrote a UN article 12 years ago about democracy and the importance of the Internet, the freedom of expression. So don't think that I'm against freedom of the Internet.
I'm just stating the reality of the situation, that the Internet has become a much more dangerous place, and are certain appropriate steps that will unfortunately have to be made that will reduce some of that freedom that we are used to.
But reduce, not abolish. Thank you.
>> CARLOS AFONSO: Thank you. A quick comment. We will discuss liability, jurisprudence in Brazil.
>> Hello, hi, everybody. My name is Marina. I'm from the Brazilian Secretariat, and I'm from the Association for Communications. Since May, 2009, we have been researching on the regulation, association of Internet regulation and this research is sponsored by APC. Between May, 2009 and June, 2010, we followed, we tried to follow and monitor all the debates in relation to Internet regulation, trying to identify how these issues appear in these scenario.
This research was shared between two teams in Brazil, one from the centre for human rights, Rio de Janeiro State University. We publish reports with all the findings of the research, of this research that happens in Brazil, and also South Africa, Lebanon, and U.S.
And I have a question for the Ministry of Justice.
One of the things we identified that these Internet regulation debates is a very controversial field. We identified many sectors involved in the debates. One of the most interesting things that we have found happens in the second state of the online civil framework. And with many contributions, many law enforcement policy, try to ask for -- just a moment. I want to check one thing, asking for -- excuse me. Here it is. The policy, fields of contribution, civil framework affect the state's power, the ability of the state's power, and all the contributions and suggestions was that, was in relation to -- sorry, just a moment -- to the case of data collected.
I would like to know how are you facing this possibility, criminal perspective instead of civil perspective like the civil framework is proposing. Another thing, in the civil framework, we didn't identify the human right, in relation to the human rights activist, communication rights, Internet rights, but from other sides. I would like to know how you are planning to extend the debates to other fields of human rights. Thank you.
>> GUILHERME ALMEIDA: Thank you for your question. I'll take this moment also to make my final remarks and some final questions can be presented.
At first, it is important to tell that we tried to involve as many groups and persons as possible. We went to the radio, TV shows, and we used Twitter, several online tools and regular media. We tried to make this process open. We tried to involve networks of activists. We might not have reached everyone, all groups or every single group. But we tried. This is something important.
Going back to our principles involving uses, there are two principles which I think that they have served as basis for the initiative. Principle truth tells about collaborative governance, and that is what we try to do here. We are trying to make the drafting of the bill to be held in participatory way. The last one says the legal and regulatory environments must preserve the dynamics of Internet and try to make Internet a place of collaboration, not only in text of law but way of drafting it.
With respects to criminal issues, I think that we made a good step when we actually get to participate those questions, when we first decided that civil aspect, civil rights, civil fundamental rights should be discussed prior to or the limitation of such rights. That is the move we took one year ago. I think we went in the right decision.
As for the conclusion of the process, I think it would be in the hands of Brazilian congress. The Bill of Law shall be sent to the congress until the end of this year, and the legislative process depends, and that's good, on the opinions and decisions of representatives and senators. They will have final word on that. Thank you.
>> Thank you, Guilherme. I believe we have ten minutes. I would like to use the ten minutes to talk about the liability controversy, as I believe this is one of the most controversial issues of democracy as a whole. And we can use this space to give you, from Brazilians, information what is going on in jurisprudence and case law in Brazil. We can go around the table and get some final comments on this issue. To go back to the issue Carlos mentioned, this is an important point to be raised here about the reasoning for the judge to hold ISP liable for a third-party content.
Because the reasoning of the judge usually are, can be said as two major reasonings. One is product liability. So it's a problem on the surface that is being hindered by the provider. For that purpose, usually the consumer protection codes, the Brazilian consumer protection code is applied. The Brazilian consumer protection code provides that this liability will be something related to strict liability in the U.S.
But there is another reasoning for judges, another reasoning for judges to held ISP liables, and this is the concept of risk. This is I believe important teacher in the Brazilian case law. Our civil code is from 2003. This civil code has a provision that says that you can be responsible, you can be held liable in the strict liability terms, if the activity that you develop, that you hinder creates risks for the rights of other people.
It's a broad, we call it a general clause or general article like this one. But it has been used by the judges to render ISPs liable for the contents of third party. What is the reason behind it? The reason is, if you have a platform, if you handle a service and through the service someone can upload the content, someone can blame a third party, so the provider is liable based on the risk and of course the actual damage that has been done.
So I believe this feature or this issue of the Brazilian jurisprudence is important here to highlight, because it seems like it's different from the U.S. experience in this point.
But then again, when we come to the jurisprudence and go back to the democracy view experience itself, it was interesting for us because when we had the first wording of democracy view say like DMCA like sort of system, like notice and take down, apart from a very negative repercussion that we have from the users of democracy view platform, we had huge fights and really bad articles post in the press, saying like this was censorship, and it was censorship because contents will be or would be removed from the Internet without judicial analysis, without judicial exam. And that could bring us a situation that Brazil has faced in 40 years ago with our government and would be censorship.
And this is something that is quite alive in the minds, in the hearts of the readers of the newspapers.
This was an argument that was presented to hinder and modify the first wording. And now the second wording we have in the democracy view says ISP is not responsible for third party unless it comply with judicial order. My personal opinion, I'd rather stick with the first wording. But as this is a Democratic process, we heard the users of the platform. We heard the complaints. We think all comments on democracy view will be comments submitted to our platform. We have comments on democracy view on everywhere, on Twitter, Facebook, traditional press. So listen to the wording. This is something I believe is a good example how this process can be Democratic, and how we handle ourselves for the solution.
To Ivo to finish and keep talking about liability; we have five minutes.
>> IVO CORREA: As Carlos said, in Brazil, now we have three different kinds of reason that jurisprudence, 25 percent of the cases only, the reason for 25 percent of the judges in our case, in the majority of the case, we have liability. Reasonings is two different, at least two different results in our case. This is for business and for the users really controversial, and it's a problem. That is why democracy view is solving this problem. Either way is important.
As I said from our perspective, best solution would be to have safe harbour for Internet companies and for Internet users in general. If it was not the case, the risk, there would not be law in Brazil. It is not all about product. It is about risk and other kinds of liability. Google cases, Brazil, that is the reality. I will not come back to the point. I want to say two things to be clear. One, nobody is saying that Brazil has censorship. The process of democracy view is clear and it is interesting. The beginning of democracy view, Google was probably the only provider, one of the companies. We don't think it's censorship. Nobody is saying that it is not common in Brazil. It is a serious problem that requires Government. 2008, Google, more than 98 percent of the cases, users taking content. This is important. We can all work well on this. Liability, democracy view contribution is really important. We have two different reasonings in courts in Brazil. Users and companies don't know what to do.
>> If you want to say something.
>> To come back to Carlos, I would like to know if I understood. I don't know if I understood what you said. I think that you were saying the difference between content, liability and functioning liabilities. In Brazil nowadays it is already very stringent and very strong, both civil rights law and consumer law are very strong on protecting consumer from more functioning of any product, and even Internet services. What is being told is content is different. We are not responsible for content. Our responsibility as providers comes to respect traditional order, to take down some content. That is our main responsibility. We are more liable than Argentinians and U.S. providers, because we have more stringent and strong laws that protect consumers.
>> Our time is up. But very quick, go ahead.
>> Hello, hello. Are you hearing me? Yes, okay, good. I would like only to add a little bit of information. I'm the representative in the Brazilian Steering Committee of infrastructure providers. Recently, we have a very interesting initiative among all Telecom providers, Telcos and TPV operators that recently signed a term of mutual cooperation, in order to face abuse and crime in the Internet.
I think that this is a very important step in the sense of having new initiatives to face all the problems that we are putting up here.
For the first time, I think I have never seen anything similar. For the first time I can envision a possibility of regulating telecommunications market regarding Internet, how to regulate it by means of operators, Telecom and TPV operators. This is something that has just begun. And I hope that the next meeting in Niger we can bring some proof of this initiatives that looks like very important. That's all.
>> Only last comment. It is important that the average damage award in Brazil that we are talking about is around $5,000. This is not attack to freedom of speech. I think it is a little allowed incentive to security.
>> Thank you to our speech, our speakers. While we are out of time, I would like to thank you all, to congratulate you to be discussing in a very lively way liability in the Internet, when lunch certainly is upon us, so that is certainly knowledge for. In any case, the next steps for democracy view, we have a presentation in the environment in October, and we are trying on the global perspective, we are trying to go to each event as relevant to Internet Governance and Internet itself and present this initiative, and to gather criticism and debates and discussions that can help us to improve the work that we have been doing so far.
Probably, you know not all, but many of the people who here have spoken about democracy view, we will be in the IGF available for questions, for debates, if you want to keep on discussing this issue. I would like to acknowledge and to congratulate you, to stay up for this two-hour discussion, and thank you very much for joining us to participate. We are available for questions and further conversation. Thank you very much. Have a good lunch.
(end of session)
- Parent Category: IGF 2010