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IGF 2016 - Day 2 - Room 3 - WS162: The Role of Judiciary Systems and Internet Governance

 

The following are the outputs of the real-time captioning taken during the Eleventh Annual Meeting of the Internet Governance Forum (IGF) in Jalisco, Mexico, from 5 to 9 December 2016. 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 event, but should not be treated as an authoritative record. 

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>> GUILHERME CANELA:  Good morning.  We are about to start so I kindly request my fellow panelists to come here.  We need to be very punctual according to the organization which I think it's a nice idea.  So we will start in one minute and 40 seconds.

Okay.  Good morning again.  It's my pleasure to be moderating this session.  We will finish two minutes and a half later so don't worry.  Thank you very much.  This is a co‑organized session between UNESCO and the special rapporteur office for human rights so thank you Edison for co-hosting this and thank you for accepting this workshop.  I would like to thank the government of Sweden who is helping us to fund this session and the idea of the role of the Judiciary Systems and freedom of expression and we will explain to you in a minute.  I'd like to thank you very much my fellow panelists in the panel.  You will see these people understand a lot about this issue and they have a profound experience in dealing with these questions. 

And above all I would like to thank you all to be here 9:00 a.m. after all the tequilas and miss calls to discuss a very pressing issue.  Four years ago UNESCO and the two special rapporteurs for the United Nations system at that time Mr. Frank LaRue who is now my boss in Paris is about to arrive so I hope he will be able to be here with us.  And Catalina Botero.  We met and we explained that we were concerned about the relationship between the Judiciary Systems and freedom of expression in general.  For our surprise he said he was also concerned and other colleagues were also concerned about several issues related to this relationship but particularly the amount of cases related to Internet that were already reaching the courts at that time. 

So we suggested to him that UNESCO and the special rapporteur's office could help the supreme courts and the Judiciary Systems in addressing this system.  And the chief justice of Brazil at that time said this is perfect but don't come to another 20 people workshop.  I have 17,000 judges in this country and I need you guys to propose something sustainable and that can reach the amount of judges and the operators of the system.  And we said well we didn't expect that challenge but we are going to do something.  And four years later we just signed ten days ago an agreement with all the supreme courts of IberoAmerica in 23 countries to deal with these kinds of issues.  We have already trained 3,500 operators of the Judiciary Systems in 22 countries in this region those issues, Internet and freedom of expression but also other areas of the freedom of expression agenda.  Edison is very much involved with this training, online training. 

For our surprise we have received 18,000 requests from judges, prosecutors, requesting information about those trainings and the possibility of doing that.  We have with the partnership with the Colombia University jurisprudence data bank in Spanish for those judges but the Colombia University also has the same data bank in English.  And we have established cooperation with all these schools of judges in IberoAmerica, Paola who is with us here; she was at that time working with the Mexican schools for judges, for providing a sustainable training for judges on these areas. 

So you see probably when you came to this session you probably remember bad cases of judiciary judges taking bad decisions about Internet all over the world and this is also true but I would start with this positive message.  There is interest in the courts in taking this issue further in a nice way, in line with international standards and freedom of expression.  The purpose of this session is to highlight these challenges but also to see how we can help judiciary systems in addressing these same challenges.  Last year the United Nations assembly approved the new sustainable development goals.  It's about in general good governance.  And one of the targets is precisely improving and enhancing the rule of law.  And in this same SDG you have freedom of expression. 

So we need more discussions for the development agenda, for the democracy agenda and for the Human Rights agenda.  That said, these people here, men and women, they have no more than seven minutes to start with initial statement about these topics.  I will warn you guys when you have two minutes left.  And after that we'll cut your ‑‑ I will sensor you.  And we will start with Toby.  Toby is one of the leading worldwide experts in freedom of expression.  He does lots of work for UNESCO and Toby will offer a more global overview.  The floor is yours.  You have seven minutes.

>> TOBY:  Thank you.  I run the center for law and democracy.  It's a Human Rights organization based in Canada that focuses on foundational rights on democracy including freedom of expression.  I see my friend from Mongolia in the office.  In February we have training for legal professionals, part of a series that we are doing there.  As the first speaker I'm going to outline what I see as the three key challenges, very broad brush in seven minutes or eight minutes. 

The challenge for judiciary regarding freedom of expression specifically with respect to the Internet, not the wider expression of freedom of expression and judiciary.  And the first issue is for the most part judges are not digital natives.  They're older guys like me and probably most of them are guys as well.  And that can play out in three different ways.  Firstly they may not understand the immediate technical implications of their decision.  They say that website has to be blocked.  They don't understand what technically that means whether it's possible to isolate that website or how that works technically so that it results in over broad restriction. 

Second problem I think is they often will not understand the social by which we mean freedom of expression of what they're doing.  About six ago judges in Pakistan blocked access to YouTube for the whole of Pakistan because of one video on YouTube.  If the judges were blocking all of the libraries they would have thought carefully.  They didn't realize what was YouTube and then they didn't want to change and it took five years.  So Pakistan was without YouTube for five years.  Third is they often don't understand the options that they have.  For example, about a year ago in Myanmar there was a nasty video and statements on Facebook about Muslims abusing Buddhists and very difficult racial relations there, led to riots, so they blocked Facebook. 

I met with the minister of information and said why don't you talk to Facebook about what they can do to remove just this problematical content and not take the whole thing down.  Now that started to change.  Of course it's going to take a little bit of time but I think interestingly and just a few comments about Civil law and common law systems.  Civil law systems are probably in a better position, more younger judges.  In the common law system you have to be old and senior before you look at a judicial position so we are behind the curve on that one. 

In second issue is on many cases what is needed is either a radical change in the way the rules are being interpreted or indeed a direct constitutional striking down of a rule because the rules are simply inconsistent with guarantees of freedom of expression.  The traditional rules in most countries on who is responsible for the publication of defamation is broad and includes intermediaries who have no access to that content.  Another is when to take jurisdiction in a case and often the rules on jurisdiction are very, very broad, not designed basically for a digital global world. 

So here I would identify quickly three sub challenges.  Firstly in many countries there are formal restrictions on the power of different judges to engage in constitutional interpretation and to take constitutional action to strike down legislation.  In my country in Canada, any judge can strike down any law on the basis of the first judge the lowest judge can strike down a complete law on the basis of constitution but in many countries you have to go from the court you're in to a constitutional court or the Supreme Court which is the only court that has that power.  That's a very procedurally delaying and complicated mechanism and there even more restrictions in some other countries. 

Secondly, these issues that arise involve often very, very complex constitutional considerations.  Even international law is not really settled, not settled at all in many of these areas on what the proper rule is.  So asking judges who in many cases are not that familiar with the foundational principals of freedom of expression understand the constitution, certainly not under international law it's difficult to expect them to take these actions.  Obviously the programme that Guilherme is involved in addresses that directly.  Thirdly, for many judges, they're used to applying what we call black letter law approach. 

Applying the rules as they know and understand them as they always have done and to ask them to move way outside of that and think completely outside the box I think is challenging, especially given the massive implications of the kinds of decisions that as freedom of expression activists I would want them to come up with.  For example, saying a minister can't sue somebody for a post on Twitter because that's just constitutional unreasonable, that's a big thing for a judge to do.  And I think that given the huge changes that are needed to align standards in all of these areas with the digital world we do ‑‑ we are looking at a bit of a challenge about judicial activism.  However, is it really appropriate for judges to go and how much should we rely on the legislature to make these kinds of changes? 

Thirdly and lastly just what I call the volume issue.  In the offline world there's a vast flow of informal and dare I call it locker room talk with all of the implications that carries these days, that never would come to a defamation case.  It's just chatter, chatter, chatter.  Even though it's full of defamation, full of illegal speech.  It would never come to a courtroom.  In the digital world it's all recorded and the possibility of that reaching a court is increased.  Many volumes of cases are completely unsustainable.  And here what we need a solution that goes beyond even a constitutional judicial interpretation, we need new rules which at least establish a di minimus standards, it's too small to get to a court or some other resolution system or perhaps a more radical approach that what happens on Twitter just is not going to be susceptible to a defamation case.  And within 30 seconds of my time I'll end.  Thank you. 

(Applause)

>> GUILHERME CANELA:  Thanks a lot, Toby.  Someone just Twitterd me that I forget to mention my name is Guilherme Canela.  So today should have been here with us as well Catalina Botero, and now she's the dean of law at a University in Colombia but for last minute reason she couldn't leave but she was kind enough to send us a short video about her thoughts on this issue as well.  So now we are going to the video.  So let's listen to Catalina Botero. 

>> CATALINA BOTERO:  (Via video) (Away from microphone) I would like to focus on how careful the judiciary has to be on these issues related to the Internet.  Why?  Because judges act (Away from microphone) but at the same time they have enough power to easily (indiscernible) of the Internet as we know it today.  The network of communications known as the Internet has generated (indiscernible) it has size, knowledge and culture and it has (indiscernible) supposed abuses of power and corruption.  (Static) open, free and neutral network.  I want to insist on the fact that it must be a network where all people are free to communicate and receive information.  All of this neutrality that promotes and protects freedom of expression and information.  In a sense protecting Internet structure, specifically the right all people to use Internet to communicate and upload information or share their opinions. 

And also the right to access the highest amount of information possible without (Away from microphone) that can erase, block or filter information as it happens.  (Indiscernible) and valuable rights for democracy such as access to culture, science, education for information about issues of particular interest would be dramatically affected.  We are talking about the rights of hundreds of beings of people.  Judges' decisions should protect the conditions necessary so that Internet can continue to be functional for democracy.  Judges must consider that when their decisions impact Internet, they may be producing a systematic affect that compromises the functioning of the network.  In particular the so‑called right to be forgotten, can we not be concealed without taking into account that any decision can have delayed effect on the Internet's structure and the right to information of millions of people. 

For this reason judges should consider the importance in the society of protecting the access to what are the few I understand neutral sources of information available today to exercise for rights.  Maintaining the integrity of Internet and adopting the issues that sacrifice in no way the principals that govern Internet includes political participation, access (indiscernible) and promotes democracy.  There's millions of people who (indiscernible) or challenge of communication and to express their interest or opinions and be heard, and this is because of Internet. 

Protecting an open, free and neutral Internet allows accountability actions (indiscernible).  All of this should be taken into account when a judge decides whether or not to alter in anyway the information of the Internet.  This is what we mean when we say don't break the Internet.  Again I'm sorry I cannot be there today.  I hope this brief intervention contributes to the fantastic discussion I'm sure will take place.  I will have really enjoyed being there with all of you.  Thank you for your time.  And have a very, very interesting panel. 

>> GUILHERME CANELA:  Okay.  So now I will jump to Holly.  We are trying to keep this interesting for bad and for good decisions that judges are taking in many places all over the world but also particularly in Latin America it's the decisions in Spanish and Portuguese and Holly will explain who you how this process has been taken place.  Holly is connected on this global freedom of expression in Colombia University.  So Holly, you have the floor for seven minutes.

>> HOLLY:  Thank you so much.  I'm so sorry Catalina Botero could not be here but it's an honor to be her in her stead.  The English version of it was launched in 20 15 and started by the president of Colombia University to better understand the norms and institutions that protect the free flow of information globally and the databases are key tool to look at norm development and freedom of expression jurisprudence.  We are trying to look at how national courts are aligning with international standards and see where new norms developing. 

We are trying to focus on the justice sector because of all of the incredible complexities that are facing the courts which Toby and Edison and Guilherme have so eloquently explained, the courts just are facing incredible challenges due to the advance in communication technologies.  We are hoping that the database would be one stop shopping for comparative jurisprudence and give justices and other stakeholders a place to go to understand how people are looking at these problems.  So the English side of the database hosts nearly at this point 800 case analyses from 100 countries.  We add 25 to 30 new cases each month.  We are able to do that because we have an enormous network of over 100 experts and 15 legal researchers based all over the world. 

And our target audience is quite broad.  We are looking to appeal to judges, Human Rights activists, lawyers and academics.  We cover everything from surveillance to national security, data protection, defamation, liable.  And in an effort to really make the database more accessible we were lucky and grateful to have this wonderful partnership with UNESCO who was able to draw on the important work they have been doing with judges.  And through that partnership and the help of Catalina Botero we launched this database in Spanish and that happened in October.  It currently hosts 170 seminal cases from Latin America from 16 countries and they are continuing to add cases. 

We then from our side took 28 seminal cases from all over the world, had those translated into Spanish so it has more of a global perspective and we selected those cases mostly based upon those cases that are signed most by the Internet court of Human Rights.  We took 28 seminal cases and had them translated into French, Russian, mandarin and Chinese.  They are going to be uploaded on to the website.  I want to give you a brief view of the website.  Here we have the front page of the Spanish site and these are all of the partners who were involved in putting it together so it's enormous amount of talent that is brought together to do this. 

And I'm going to show you the English side here.  This is sort of the main navigation page for searching for some of the cases.  There's three different ways of doing it.  We have filters; we have full tech search and tags.  I selected one case the Google Spain case I thought that would be relevant for everybody here.  One of the first cases on the right to be forgotten.  For every single case analysis we have we have various cases.  We then have a fact section.  We have a decision direction area where we can add additional context to the case and we also evaluate whether we feel that the decision restricts expression, expands expression or gives a mixed outcome. 

Then we have the global perspective section and this is where we take all of the citations from the court decision and this will show you whether or not the court relied on national jurisprudence, regional jurisprudence or international standards and this gives us a stance of what we consider to be a global perspective.  And I'm using the Google Spain because this was such an important case for I'm assuming most people here are familiar with it.  Okay.  I got to make this fast.  Anyway, what we have under the case significance is a list of all the cases in the database that actually cite that particular case so this is where you can go if you want to have a comparative perspective on Google Spain to see what other courts in other jurisdictions are thinking about.  I'm going to show you briefly, here is a graphic of how this court has traveled all over the world.  You can see these lines. 

So it's had quite an impact.  Another case I'd like to highlight is Turkey; this is the court of Human Rights case.  I think a lot of people particularly David was talking about how there's roll-back in freedom of expression because of national security and surveillance but there are really positive models that I think people should look at.  There are some courts that are making thoughtful decisions we can learn from.  This is one of them.  This was a blanket ban and the European court of Human Rights rules that in fact blanket bands are violations of article ten and a very important aspect of this case the court recognized the educational utility of YouTube because two of the plaintiffs in this case were professors so we are very happy about that one. 

There's a recent case in the United States that we found to be very important what cable operators in the U.S. were trying to do was create these bizarre hierarchies of access ‑‑ two seconds ‑‑ and that was away of kind of getting like ridiculous revenues and the court said absolutely not.  This is a public utility and therefore those sorts of practices are illegal.  And they supported five principals for net neutrality.  You can read more about it in the database.  I have lots of propaganda here in Spanish and English on the database so please talk to me afterwards.  We have a booth in village number six.  Visit us. 

(Applause)

>> GUILHERME CANELA:  Thanks a lot, Holly.  I have no hard time on keeping these people on time.  It's very good.  Now I'm handing the floor to my good friend Edison Lanza is special rapporteur or freedom of expression but in his previous life was an activist for many of those issues and also a lawyer who was presenting these things before courts.  So he has experiences in many perspectives related to this issue so Edison, you're going to speak in Spanish, right?  Apparently we don't have translation but you can see it in English while he's speaking in English in Spanish.  Okay.  Seven minutes.

>> EDISON LANZA:  Okay.  Thank you Guilherme and thank all of you for being here.  I follow in Spanish and take advantage that we are here in Mexico and then the situation about my terrible English. 

(Speaking in Spanish)

(Applause)

(Speaking in Spanish)

(Applause)

>> GUILHERME CANELA:  Thank you, Edison.  So the thing was not working.  I'll make a summary and the few issues at the end Edison will underline.  He mentioned the right to be forgotten, a key issue we need to address in the region.  The protection of journalist and the source of journalist in the environment it's another element.  He's worried about the pressure judges are receiving for content on the Internet and finally jurisdiction and the impact in other jurisdictions as Holly showed with her map and the different impacts of a decision in Europe in other courts. 

So this was 30 second summary of what Edison said in seven minutes.  Now since he mentioned the case of Brazil perhaps I can switch to my Brazilian friends.  Carlos, perhaps you can offer that in seven minutes.

>> CARLOS:  Thank you.  I would like to thank the partners of this panel.  I'd provide some news about Brazil and how the issue of the role of judiciary has been played out in recent years and try to come up with some ideas on how we can move forward with this discussion.  So first of all just to make the point clear, from two years now Brazil approved a law related to specifically on the Internet which was so‑called Brazilian Internet bill of rights.  We call it (speaking foreign language).  This is a law that is strong in the language when it comes to freedom of expression.  The Brazilian Internet bill of rights refers to free speech at least five times and one of the strongest language what it has is on article second.  I'm translating from Portuguese to English as we go but the article second of the Brazilian Internet bill of rights is the usage is ground in protection of freedom of expression.  Pretty strong language just to begin with, with the legislation of course. 

And this is a legislation that needs to be applied, own forced by judges, by judiciary power.  We have seen in the last two years how the judiciary reacted to this law because Brazil has been going through a moment in which free speech has been challenged in a number of situations from electoral discourse, courts are getting more actively on the debates around the boundaries of freedom of expression in Brazil and from that regard I believe the issue Edison mentioned on right to be forgotten is a key issue in Brazil when it comes to looking how courts are reflecting on those issues.  If you look especially on the court of appeals of the state of Sao Paolo in the last one year and a half we had 46 decisions on right to be forgotten.  So it's decisions on the right to be forgotten and mimicking contrasting to the case that happens in Europe so it's interesting to see it because we are talking about the influences one country might have on another. 

It's interesting to see from May 2014 you got these widespread decisions ton right to be forgotten and some of them even discuss the issue of global removals just to say a Brazilian judge could order accountants to be removed from a search engine.  So this is a really oppressing issue and I believe it has a huge impact on freedom of expression.  We know by the end of the day this can be a very damaging result for free speech worldwide because we could balance free speech in the lower level like the race to the bottom.  The issue of what is blocking always comes up when we discuss Internet regulation and free speech in Brazil.  Of course we had these issues of blacking in Brazil and there are really damaging on the issue of free speech but at the same time it's important to highlight that the Brazilian Internet bill of rights has been used in some of these decisions. 

My personal opinion it's been wrongly used by judges in some of these decisions and I'm really glad to tell that you the last decision from our Brazilian Supreme Court that has reversed the last blocking of the what's up in Brazil, the principal of freedom of expression to say what the blocking of the what's up was not a constitutional measure, not a proportional measure. 

The last decision from the Brazilian Supreme Court on the issue of what's up blocking says that the suspension of a service of a app called what happens up that allows the exchange of messages instantaneously throughout the Internet as determined by the lower court seems to me that the justice seemed to me that it violates the fundamental principal of free speech which is protected here in the Brazilian Internet bill of rights and throughout the national territory seems to be disproportional measure so it's interesting how the Brazilian Internet bill of rights has been applied and especially the issue of free speech is coming up really strong in those decisions. 

And just to conclude, which one is this?  Okay.  Great.  We have a piece of paper that you're look can be different depending what side of the paper is shown to you.  One is you still have some minutes, the other one ‑‑ so I got the lucky side.  Okay.  Not sure if it's lucky for you. 

Then again just to conclude, the issue of free speech and Internet is definitely picking up in Brazilian courts not only in the Supreme Court but unless the court of appeals.  If you look again at the court of appeals of the state of Sao Paolo only this year we have 234 decisions mentioning free speech and the Internet.  And that comes from a wide range of topics, from registration of domain names to content removal to liability of intermediaries so it's interesting to see how judges are taking on those issues.  One of the initiatives I would like to mention is the initiative called EGI which is school of Internet Governance with its I would say legal addition which is an initiative from this last addition in which we create some small courses for a class of 30 to 40 students such to say and it's pretty much focused on legal professions such as lawyers, prosecutors, judges, high court judges. 

And we are putting up those courses and we of done two courses already in order to not send out the news about the Brazilian Internet bill of rights and its enforcement but also to make sure that judges try to understand a little bit better the impacts of its decisions.  The issues Edison mentioned and I mentioned here ‑‑ okay ‑‑ are really crucial for the state of the Internet in Brazil in the near future so that's why judge training is really important but I would like to stress the point like judges are in one spectra of the profession.  On the other side of the spectra you have the students and the law students so it's really important for Internet regulation being teached in the graduation courses in the law schools so we can get not only the students studying law right now but the judges who are applying the law afterwards.  Sorry for going over like 30 seconds and thanks for that. 

(Applause)

>> GUILHERME CANELA:  Thanks a lot, Carlos.  And I think you saw the point where the connection what Toby was saying about the volume and what Carlos said if you can imagine Sao Paolo as Carlos said is only one Brazilian state.  Image for the court of appeals that is already a second stage of judiciary power they already have 234 cases imagine what is going on and multiply that for 27 states only for Brazil.  One thing Carlos didn't mention because I cut his time and it's important to underline, when we have electoral ears we have even more cases in the electoral courts related to Internet and I'm seeing people here that has a project on that so later on during the discussion marina can tell but this particular point. 

Now I'm connecting also with Carlos and I'm moving to Paola Carmona Diaz de Leon.  She started when she was in the Mexican school of judges.  We first did a court in Mexico online.  We thought we were going to train 50 people and we received 2,000 requests for Mexican judges and operators to be involved in this course.  Paola is a professor and teaches about freedom of expression and law, has won a very important prize here in Mexico. 

>> PAOLA DIAZ DELEON:  Thank you.  First I would like to thank Guilherme Canela for participating in the discussion panel.  My exposure is made up of four sections, the right to reply, the history of relation with Mexico and the list of the draft of the constitution action of the Mexico Supreme Court of justice and conclusions.  The right to reply is the right of every person, in the sense that they are facts only or also opinions.  That refers to it to consider them inaccurate or unlikely to be prejudicial.  The reply will be made in the same medium.  This is not a general rule.  The publication will be free and printed in the next issue to the one that generated the publication.  Legal administrative procedures are usually established as restricted.  However, it is important to note the immediacy of the information. 

The time of the note and the reply should not be allowed otherwise the latter loses intended effect.  Because the relation establishing legal mechanisms for its defense the right to reply has been considered as an important warranty of the right to information which should be understood as the power to freely communicate and receive information by any broadcast media introduced in the second half of the 20th century in the article 19 by the universal declaration of Human Rights.  The case study information must have two characteristics.  The first is voracity.  Diligence in the search for the truth.  The issue of constitutional warranty that acts with contempt for voracity or falsity of the communicated.  Because the law does not cover the information that is known by the transmitter or without any contrast with any objective data preventing the issue from transmitting as facts rumors lack any evidence or insinuations. 

The second is information pluralism that can be understood in different ways.  As an external pluralism that is to say that as an effect of the University of broadcast media.  A social plurality and information.  And impartial and neutral objective treatment of political information.  The right to reply is also a manifestation of the freedom of information.  Hence the conditions of voracity and information pluralism which effect and are applicable since the inaccurate information publishes and disseminated by a social communication medium which gives right to exercise by the subject effective is based on the ‑‑ sorry, is based on the voracity.  That means should be contrasted with actual facts and you should act with diligence and professionalism in its obtaining. 

This prerequisite does not execute the issue from possible errors despite having acted in good faith.  The meanings of information pluralism mentioned to stand out in exercise the right to reply.  The internal pluralism implies the broadcast media opening to all voices.  In the case of the right to reply information which facilitates the diffusion of different versions of the same event.  And information pluralism as an impartial and neutral objective treatment since different versions of information have an impact on public information and decisions by citizens. 

Also external pluralism provides the assumption that information is not concentrated in a single (indiscernible) which gives fluidity and freedom to the communicative process.  To exercise the right to reply and the consequent publication must be distinguished from the responsibility derived ‑‑ okay ‑‑ oops.  Okay.  Thank you.  Well, okay.  I will reduce my participation and I only take ‑‑ took the background.  We have in matter of writer reply we have many amendments.  The amendment to constitutional article six on 2007, the general law on electoral institution and procedures on 2014, the regulatory law for constitutional article six to the right of reply from 2015.  I will give highlights about analysis of the unconstitutional action from the Supreme Court about right to reply. 

The presence of two of the political parties at Mexico and the national commission of Human Rights promoted a constitutional action against the decree of the promulgation ‑‑ a sentence that was rejected for the following main reasons:  It intends to eliminate the law of the ‑‑ from the law to the characteristics that the information of the right of reply must have.  Also the law establishes the process ‑‑ well, and ‑‑ well, also proposed the validity of the provisions granting to the media the power to refuse to publish it or transmit at the requested reply based on the analysis of subjective aspects whose assessment is proper to the judicial authority.  That is when the reply is offensive or when the people ‑‑ okay ‑‑

>> GUILHERME CANELA:  Ten seconds. 

>> PAOLA DIAZ DELEON:  30 seconds? 

>> GUILHERME CANELA:  Sure.

>> PAOLA DIAZ DELEON:  Okay.  I could add another element to question eight.  The assertion that the right to reply is a limitation to freedom of expression.  And that its exercise needs to affect the honor of others because as I explained, the right to replies has relationship with the right information and information pluralism and truthfulness.  It's opposed to the right of which results in liability and reparation of moral damages.  The right to reply in Mexico is a right whose regulations contains inaccuracies that have been noted in their arguments presented by the proponents of the constitutional action which also have been reflected in the draft sentence that was rejected.  Thank you. 

(Applause)

>> GUILHERME CANELA:  So now last but not least we will have you saw here we have a mixed panel of intergovernmental organizations, Civil Society.  Now we will switch to the private sector which is obviously an important player in this discussion and I'm glad that my friend Marcel from Google is here.  Many of the cases that were mentioned this morning are related to companies that are connected to the Google Corporation, YouTube, Google itself as the search machine.  So Marcel, I hope you can give us ideas on the private sector.  Thank you.  Seven minutes.

>> MARCEL:  Thank you.  It's not obvious to most people how judicial decisions interfere with Internet governance.  And I'll give you some numbers to illustrate what I mean by this.  I'm senior public council policy on Brazil.  Even though I'm not on the legal team I work closely with them.  Brazil has over 3,000 cases with Google.  That number does not, I repeat, does not include cases in which Google is not a party so essentially any criminal investigations or other data requests where Google is not a party to that lawsuit are not included in that 3,000 number that I mentioned.  There's an impact on how regulation and decisions happen. 

One thing we learned and notice across the region, not just Brazil, it's almost unfair to demand of judges to have a very deep knowledge of technology and the Internet in general.  Of course we ought to do better in that to educate them in several ways.  I wouldn't say it's such an age thing.  It's more like a familiarity thing.  Courts have had to deal with these cases on an ongoing basis despite having senior judges don't really understand the basics of Internet technology, whereas some cases if you have young judges failing to understand the implications of their decisions.  I guess that's the point I want to make.  Most of them are out to solve specific problems and almost all of them fail to realize the broader implications of their decisions.  I'll give two examples that illustrate what I mean. 

There was a case in 2006 or 7 where a cyber cafe ‑‑ the state court of appeals said regardless of the cyber cafe to register customer data for investigations, they said you know what offering public access to the Internet, these are the courts words, not mine, is a risk.  And therefore who ever offers that kind of service should be held liable for any wrongdoing that a user can do.  They basically said that business was so risky that who would actually endeavor doing that?  So that was the first case that happened way back glad to say it's no longer the case obviously.  And when more recent case we saw at Google is basically those phishing expeditions that have happened.  We have seen court orders ordering the company to disclose our Google accounts of all users of Android phones that happened to be in a 500 yard vicinity of a crime that happened. 

We fought that order and won on and appeals ground but just to give an example of the judges failing to understand the broader implication of their decisions while trying to solve specific problems.  How do you solve that problem?  Basically with transparency.  I was glad to see the project on global decisions.  Brazil has something similar.  It's called the Marco Civil observatory, where they actually public decisions that apply to Marco Civil with space for comments and decides what is going on and analyze if decisions apply the law correctly.  When that kind of observatory and transparency is important is most of the legal research in this topic ends up being on superior court decisions, they are just sexier I think but the reality is the problem usually happens at the lower level and basically sometimes they get ignored unless it's a big repercussion case like what's up blocking.  So that's what I had to say. 

I'll just mention this as well that we need more of these decisions because it's all fine and nice to be talking here about the global network, the global Internet in general but the policy implications of what we discuss here are actually applied by the judges on the national level so we have to keep an eye for those decisions all the time regardless of country.  I'm done, thank you. 

(Applause)

>> GUILHERME CANELA:  You know, private sector goes straight to the point. 

(Laughter)

So now we'll have ‑‑ we still have 20 minutes, a little bit for, for discussion with you guys.  Just to let you know we have lots of propaganda here from the jurisprudence data bank, we have the road map we have built with the schools of judges in Latin America, this is in Spanish but it's online as well.  Toby has book from his center as well.  If you want later on please come here.  And then I have few people so let's take five questions, one minute and 30 seconds each question, no more than that and get back here.  Rachel, Marina, Paul and this here and one more are five.  If we have time we go back.  We will take all the five questions so no more than one and a half minutes.  Present yourself.  Introduce yourself.

>> AUDIENCE:  Hi.  NGO for woman's rights here in Mexico.  Access to justice, it could be that progressive jurisdiction or decisions made by courts for instance in Mexico it's happening but what happens to for example women approaching to the judiciary in the lower levels not been able to access to justice in cases related to Internet governance for the judges to be able to interpret legislation.  I would like the stress that fact because for a case to get into the Supreme Court or any other international instance it's a long way so there's a heavy gap there that I say yeah we have to ask judges who have higher standards in the way they are applying to everyday life of data.

>> GUILHERME CANELA:  Thanks a lot.  We have Rachel back there.  Don't worry, the five people I have noted will be contemplated. 

>> AUDIENCE:  Thank you very much.  I will be short.  I want to share a little bit what Internet society is aiming to do with the judiciary training.  First for those that don't know Internet society was created back in '92.  Exactly to be the home for the IETF which is the technical guy who do the standards and protocols but we know we had to broaden the activities between technical and policy issues because we need to make the engineers understand how their development and decisions impact the social and the policy making.  And also the policy makers have the decisions impact the technical architecture and how it impacts the Internet infrastructure. 

So based on building on this experience that we have in this intersection we want to do a course and we are looking to do a course with UNESCO bringing to the courts to the judiciary system so the judges and anyone involved how the Internet plays, how it works, and how the Internet governance's principals need to be tackled.  And then narrow down to the freedom of expression hate speech, right to be forgotten.  So going back into the degrees of the issues.  What is important and what I wanted to mention especially in Latin America where we have the Civil regime based, the courts become the entrance point for those issues so it's important that they had this broad understanding and I think the panel was pretty clear on that and I thank the panel for all your vision that's going to be really helpful and useful also to talk to you and to anyone interested because this is not our full expertise and we are really willing to do this right.  Thank you. 

>> GUILHERME CANELA:  Thank you.  Here. 

>> AUDIENCE:  Hello, everybody.  My name is Paul, I'm the deputy director of Internet and jurisdiction which is a global multi stakeholder policy between the cross pollination of Internet and jurisdictions.  I want to congratulate you to this panel.  It's such an important topic.  And we were organizes the first global Internet and jurisdictions conference two weeks ago in Paris. 

For the first time more than 200 senior level stakeholders for more than 40 countries came together to find ways to solution.  And one message, one of the key messages was it's very important to involve the judiciary more in those discussions which is a challenge.  So I'm wondering how you imagine the judiciary can be involved.  There are a lot of judges on the judiciary systems that are involved in making those decisions.  As many of you highlighted in your presentations we see more in the absence of overarching frameworks that apply to those sort of questions of how to exert national laws on the cross border Internet.  To change the entire ecosystem.  So I will very curious if you can provide some comments on that.

>> GUILHERME CANELA:  Thanks.  So we have this gentleman there ‑‑ no, sorry, you're the next round this.  One there that is ‑‑ sorry about that.  We will take five first and then Marina. 

>> AUDIENCE:  Hi.  I represent private sector, I'm a software developer.  Training judges and Internet governments for decisions, not just Internet but for Internet of Things for the revolution of society is essential but also how governments are adopting and taking advantage for the use of alternative forms of government allow and law enforcement like computer algorithms and regulatory governments.

>> GUILHERME CANELA:  Thank you.  And Marina for the last question for this round and if we have time we get five more. 

>> AUDIENCE:  Thank you.  I'm Marina from the Brazilian association of foreign investigative journalists.  Thank you for mentioning your project.  We collect the judicial actions taken for that demands online content removal in Brazil.  And just highlighting some numbers we collected in 2016 local electoral campaign.  There were cases only in electoral courts in Brazil for content removal.  Some demanded preventing people from publishing on subjects and issues.  97 lawsuits included that demand.  And this is 30% more actions that we registered in 2012 electoral campaign and that is curious because the 2016 campaign was 50% shorter than the 2012 campaign.  And I'd like to check if you really believe that judges in Brazil are aware of the impact of their decisions of freedom of expression given these numbers.

>> GUILHERME CANELA:  We will go back to the table.  We had one question on access to justice and women regarding their rights on the Internet.  And the question and announcement about training but perhaps you should mention about the operators of the system.  And Paul mentioned how we can involve more judiciary power in those discussions then we had a question about Internet of Things, algorithms that I didn't understand but it's my fault because I don't understand anything about that so perhaps Marcel can take the question.  And then Marina, I think she underlined a very interesting point, but at least in Latin America many cases related to Internet and freedom of expression are taking place during electoral process so I don't know if one of you guys want to comment on this particular bit.  So perhaps one minute for each one that wants to give a particular comment on any of those questions.  Perhaps I start now the other way around so Marcel, you could offer your input.

>> MARCEL:  Hi, on the electoral thing, basically let's remember that the elections in 2016 were municipal elections and people also running for city hall which means there's plenty more candidates overall than for example in sheer numbers than the federal elections when you have congressmen and everything but it's like 600 people will have a place rather than all of these city hall places which are like more than 5,000 municipalities in Brazil so that would explain a little bit of that.  The other thing is how the electoral legislation is very old at this point.  It's not exactly a speech friendly, let's leave it at that.  On the algorithm issue there's this growing trend of people being concerned about what exactly will technology do to these decision making processes. 

There's a book called The End of Lawyers written by Richard Suskind (phonetic), he makes the argument that legal tasks will be replaced by algorithms and machine learning.  That may be true for contracts and easily repeatable tasks but we are still at a far cry from knowing all the nuances and the reasoning required for legal reasoning.  I wouldn't go that far right now.  It's hard enough to understand how the law applies for human judges let alone imagining machines do that in a sense.  One quick comment to the point on how do we scale that?  In Brazil what we have tried to do is really very piecemeal approach, sometimes we get invitations to do lectures here and there and let's remember, guys, judges are generalists.  There's no such thing as Internet courts yet or specialized courts on that so obviously there's also a barrier where judges might not even be that interested in first place.  And let's be honest, some judges are not humble enough to admit they don't understand the particular issue so they may not be interested in training in the first place so there's a challenge there as well.

>> GUILHERME CANELA:  Thanks, Marcel.  Can you comment on ‑‑ do you think that special courts for Internet is a solution or a possible solution in the future for this issue?

>> MARCEL:  Me again? 

>> GUILHERME CANELA:  Because you mentioned the issue.  Do you think it's ‑‑

>> MARCEL:  No.  I put more faith in the sense that the sheer amount of problems that show up regarding online content could demand fast solutions as well.  You can see judges for example we had that experience in Brazil for example when discussing how only the judiciaries should be deciding whether content should be or not be removed.  Some judges say yeah but we are not sure if you want that burden so even then they're not happy with the idea because they believe there's so much content out that could be questioned and sadly our numbers confirm that. 

>> GUILHERME CANELA:  Okay.  Carlos?

>> CARLOS:  Just the piggyback on the answer Marcel delivered on specialized courts for the Internet.  Issues concerning the Internet might be issues concerning Civil law, criminal law, taxation law.  So if judges are generalists and certainly they are, to think about specified court on the Internet will mean what this judge by the end of the day will need to decide on issues such as criminal, contracts, taxation.  I believe it's a tough idea to develop at least at this point.  So very quickly on the issue of access to justice, just a quick news on the Brazilian Internet bill of rights. 

When it comes to the issue of intermediary liability there's a provision in the Marco Civil that states that small claim courts can be the entry point in which those discussions are delivered to the judiciary so you don't need to go to a high level court to pay expensive fees and even have a lawyer to initiate removal of contents and responsibilities of an intermediary.  I think it's important moving forward on this discussion to identify judges that can serve as catalysts, motivators of this issue on specific regions because that way the judiciary system might not react as some sort of external interest trying to get judges to get 2 or 3 days of their working time to dedicate to the Internet and there's an internal demand rather than an external one.  I think that's pretty much interesting. 

Just to conclude I'm really impressed on the number of conversations I've had with judges especially older judges where they say this Internet thing is of course not for me but I have to decide about it so I need to understand it.  And to my surprise some of them says I'm old enough to learn about if Internet as a whole but I have kids so I usually resort to my kids at home which explain to me like this is a total tilt in the system when judges are resorting to their kids to understand how the Internet works so I believe it's our task here to make sure that judiciary will have the resources and mechanisms to get this conversation forward in a more structured manner.  That's it.

>> GUILHERME CANELA:  Okay.  Thanks.  Paola, do you want to add something on this?

>> PAOLA CARMONA DIAZ DELEON:  Thank you.

>> GUILHERME CANELA:  You can do Spanish.

>> PAOLA CARMONA DIAZ DELEON:  I will speak in Spanish.  And okay.  Okay. 

(Speaking in Spanish)

(No English translation)

>> GUILHERME CANELA:  Edison has stolen my card to make notes so now I can't do the thing with them.  Toby.

>> TOBY:  (Speaking Spanish).

So three quick points.  Firstly, on the question of access to justice of course that's a very big and important issue but by and large in this area to say Internet and freedom of expression and access I want to turn that upside-down.  Most of these cases are not about access to justice, they're about abusing systems to harm freedom of expression and I want to focus more on cutting off access to justice to the people which currently have it which tend to be powerful social actors, politicians, and business people using their access to shut us up.  We need to focus more on diminishing access to justice in this area.  In terms of Internet and jurisdiction it's a very, very complicated issue. 

Guilherme mentioned the publication that I have.  I only have two more copies because panelists have taken some but it's online.  I think there's a big scope for judges to make positive rulings about the limits of jurisdiction.  I was at your panel the other day, yesterday morning talking about the need for states to exercise some kind of restraint in their claims about their jurisdiction and I think judges can play a big role based on guarantees of freedom of expression in supporting that.  Finally I want to mention a little bit about this idea of specialized court on Internet and I don't support that idea but I do think that just as you mentioned using a small claims court we cannot have the volume of cases running through the regular court system.  The public pays for those courts. 

Apart from the freedom of expression implications it's a massive waste of public money.  Thousands and thousands of cases going through the court which are just a bought abusing freedom of expression.  I think an alternative could be ‑‑ and the details need to be work out a lot but to have some administrative mechanism with for example right to be forgotten claims.  It seems that's not something for the courts.  I'm also uncomfortable with Google which is an involved actor dealing with those kinds of claims.  I'd rather see an independent administrative body and it could be a way of addressing the volume and still maintaining the public nature of decision making for these issues but specialized on certain things.

>> GUILHERME CANELA:  I all right got the two minute warning so Edison you have one minute. 

>> EDISON LANZA:  Thank you.  If it's my English, let me know.  I think one factor that interference in the decision of the judges sometimes is they hurry up to make a decision.  I feel that in some cases they want to have a decision that you know against a big company like Google and this is a factor that they have been hearing in Latin America.  Other thing is here in Latin America, the Latin American system of Human Rights of a great deal of freedom of expression but we don't have the same impact on freedom of privacy.  The judges and the administrative system looks for Europe in the standards of privacy and then this is a huge issue that having in the decision about right to be forgotten. 

Finally, we know with UNESCO that it's very important to work in different levels about the judges.  We start to work with the schools of judges and center, information and capacity buildings, and the judges in Latin America and we have great impact in that.  And then I think that we need to start a dialogue about between the forums like this and the forum of the judges.  We have IberoAmerican counsel of judiciaries and then they don't come here, for example, because I think that the judges need to involve creating in this kind of discussion.  I think it's very far of this discussion and this has an impact in the compliance and understand the architect and all the issues of Internet.  Thanks. 

>> GUILHERME CANELA:  Thank you, very much.  Holly told me she's waiving her right to final comment.  I want to thank you all for being here.  I just want to mention that we are keeping this in cooperation with the IberoAmerica summit of judges, the 23 supreme courts in the region.  Next May we will open again in massive online course for judges and other operators of the judicial system in the region and perhaps all this is again another way of integrating them in this discussion to interact with your question remembering it's not only about judges.  We need to discuss this with prosecutors and other players in the system.  So thank you very much.  Sorry for not getting all the questions but the panelists are here.  I'm sure they will be more than glad to further discuss those issues with you.  Thank you.  Good morning.  Bye.

(Applause)

(Session concluded at 10:32)

 

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