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IGF 2016 - Day 3 - Room 10 - Proposed Dynamic Coalition on Publicness

 

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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>> KS PARK: Welcome to the hopefully foundational meeting of the Dynamic Coalition on Publicness.  This is a meeting of Dynamic Coalition, so we'll try to give as many people as possible a chance to speak.  So, I'll start by talking about why we first came together with organizers here, who I'm going to introduce one at a time, to form this Coalition.

The original impetus came from my concern with the spreading of students Right to be Forgotten.  We thought that the spreading of Right to be Forgotten is fueled by lack of discourse or lack of discussion on the publicness as opposed to privacy.  How, we are making ourselves into more public beings, and yet we are cutting down on what we are capable of as a society.  I'm a law provider ‑‑ let me introduce myself.  I am KS Park.  I'm a law professor at Korea University law center.  I'm also a board member of Open at Korea.  We work for free space privacy and net neutrality in Korea.  And I've worked years to improve free speech, freedom of speech in Korea.  For instance, we still have truth defamation, truth defamation law where people speaking truth about other people can be criminally prosecuted just because those truths are lowering the reputations of others.

For instance, please complaining about not being paid their wages can be criminally prosecuted for lowering the employee's reputation, even if fact of nonpayment is true.

And after having some success in raising people's awareness about freedom of speech, suddenly comes out from Europe, another theory enabling people to take down perfectly lawful content, perfectly true information.  And that's where my concern with the Right to be Forgotten began.

I thought that Internet Governance is a good forum to discuss this because if you look at how the Right to be Forgotten is structured, it's clearly anti-internet because it doesn't call certain information unlawful.  It doesn't single out some information as illegal.  It just says, it should be kept out of the internet.  It can remain on paper, on server, it can remain in any device but should not be made available through search algorithm.

Now, the fact that the original content still remains online does not offer much solace because on internet, what is not searchable might not exist.  So the probability of finding certain information useful to you without the guidance of a search engine is practically nil.  So this is one theory that discriminates against the internet as a medium.  It allows other media to process certain data but discriminates against the search algorithm of the internet in processing that data.  And I think that there is a strong impetus for right forgot then Europe, but if you look at how it is received in other continents, it's not very welcome. 

And I thought about why.  You know, its countries that suffered that have suffered from colonization and also until recently, dictatorship, they still have this oppressive structures that need be addressed and to address the oppressive structures and the history, there is an urgent need for more transparency and more truth that has to be a free flow of information that will allow addressing all the structural elements of injustice and past oppression, and some proponents of right to forgotten say, oh, it doesn't apply to public figures.  Well, a lot of times, you know, officials officers up and down the influence of colonial administration or governments are worked to oppress people and it's really hard to make a distinction between public figures and private figures in trying to address, in trying to find out what has really happened in these countries.

So people ‑‑ I thought that it is for these reasons that right to forgotten is not so welcome in other continents, and yet, the trend is very disturbing because we have right to forgotten dissonance coming out of Latin America.  We have right to forgotten bills coming out of Asia and as a free speech advocate, I'm very concerned that the emerging right to forgotten will undermine the efforts of these societies in perfecting or in advancing their agenda of further democratization and ‑‑ democratization and further development.

That is my story of why I thought right to forgotten is important to me and my country and why I thought Internet Governance Forum was a good venue for discussing that.  And I met my colleague here, Lorena Juame‑Palasi, she's also a colleague and turned this into an idea about Coalition.  She's also present how it's not just right to forgotten we should think about.  We should also think about how our perceptions of privacy or our lack of the understanding about the public space through which we conduct our lives are affecting the Internet Governance and emerging Right to be Forgotten.

>> LORENA JUAME‑PALASI: Thank you.  Hello, everyone.  Thanks for being here.  I'm happy to see the room is full.  It's a small fine group of people.  I'm happy with that.  Yes, KS and I met actually in south Korea when we were discussing in south Korea how the Europeans were implementing the Right to be Forgotten.  This conversation started and it hasn't stopped yet.  What resulted of the conversations is the acknowledgement that we need to try to understand a concept like the Right to be Forgotten.  When you look behind the reason of why the European code of justice came up with that was a fear of discrimination.  It was not much about privacy, but about the way Europeans see public disability and what it means to be in public.

How big or small and how the different degrees of visibility are seen in the internet so to put it clear, just with regards to my point of view, I'm a philosopher.  That's my approach.  I will try to give you a small overview of how I see it and how I came up with that idea of publicness, which is a word that doesn't exist.  And we created to sort of try to propose a new concept to rethink about how we feel about the public surface and the private space in the digitalized era.

In classic state theory, when we stop thinking about the way societies are structured not anymore in kingdoms but in states, in classic state theory.  When that information comes in, you sort of try to understand the tasks and power of government by saying it encompasses ‑‑ and that's the first distinction we make, that it encompasses all things private and public and it stops and finishes where private things are concerned so the limit states start in the privacy realm.

So, in democracy theories and many Democratic states, but in any state at all when states think about structuring the state, they think a lot about the limits with regard to privacy and they create a lot of limitations to guarantee that this private realm is being protected against a Monopoly from a powerful actor that is a state, so we have a lot of regulation there, especially in western cultures.  We have insipient regulation there in countries with the southern part with regard to data protection but we also see in countries there is also similar concepts.  Perhaps not data protection but privacy regulation or so called personal rights regulation that has a dimension of autonomy and privacy but what we see across all cultures is that there is not much thinking about the public realm.  There is not much regulation about the public realm.

So, in the public realm, what we see is that there is a lot of thinking about freedom of expression and there is a lot of thinking about access to information, and that is being considered as enough to protect the public realm.  But when we take a look deeper, what it means, the public space, we see that there are many other elements into it.  We see things like public interest and public good that also belong to the public realm and cannot only be approach but access to information, or by freedom of expression.

And what we also see is that something that is being left completely out of the conversation and that is a framework within all these elements, freedom of access to information, freedom of expression, public good, public interest.  The framework within all those elements happens.  That's not being thought of.  We think about the framework where private things happen but we don't think about the framework within public interest happens.  So, this is something that is not new.  Many laws have been discussed in the 1990s. 

There was some criticism in the 1970s but law scholars tried to address this in the 90s and then what we see is that right now with digitalization, more and more fear of losing privacy is focusing everyone on the right to protect privacy and we have a sort of ‑‑ not nuanced discussion on what we mean when we talk about personal data, for instance.  And that was the starting point for the Right to be Forgotten.  It was considered as a privacy thing while it is actually a personal thing.  It's a personal situation about personal data in the public sphere.  So when we started ‑‑ and please interrupt me if I'm not playing myself clear, just raise your hand and I'll be happy to address anything that is unclear.  Only make sure that you have a handheld mic because this is being streamed so that the people outside can hear you and also for the commentation issues.

So, we started thinking that there is a need to understand what all countries and all continents feel about the public sphere.  We were pretty interested in understanding, is there a turn?  Are we thinking now differently about the public space and the public elements, and the elements of the public sphere because of digitalization?  Or are we having a divergence between what we think offline and online.  Are we having different feelings in the public space without our smartphone and laptop than we are just immersed with our digital devices. 

This is one of the questions we were having and this is also one of the reasons why we all teamed up and tried to look for excellent scholars and activists and experts like Alejandro to get an idea, is there a common denominator?  Do we all people from different continents, KS in Korea, Matala from Europe, Alejandro from south mesh.  We wanted to join together and make it hope to everyone to see if there are different voices all around the continents to understand, in the first place, do we have a common denominator?  Are there things we all share in common irrespectively of our cultures?  In the second place, what are the differences to sort of have a more nuanced debate.

Now, a Dynamic Coalition is a very concise structure within the UN IGF because it demands a plan of action and it has also additional requirements like being open to anyone that wants to join and in need of at least three stakeholder groups.  So apart from this criteria, it is a pretty much open concept and you're supposed to do the work, to do the output.  That output is supposed to be defined by the plan of action that you have to present when you submit it to the secretary.  Right now, this is not a Dynamic Coalition.  It's simply a proposal.  We hope that he got your attention, and we have a discussion about it.

This is only an explanation of what the need in our opinion is and we have a tentative plan of action, of course.  One of them being a joint statement which we all draft together.  The second one being trying to create tests that are being showed in each continent where we try to test how the tuitions about the public space online match to the tuitions of situations public space offline so that we have sort of fact‑based approach, or at least a behavioral, first impression of what is happening, actually, there.  And there is a third thing we think would be interesting to do, and that would be to create an archive with theoretical cases of all around the world based on that sort of conflict.  So that's pretty much from my side.

>> Thank you.  We are not here to have a leisurely discussion of abstract issues.  We are trying to form an organization, a Coalition.  So I think it's important that everybody here has a chance to, I mean, if not everybody, at least all willing participants are given a chance to speak and if anybody because of time constraint has to leave early but is already convinced that he or she wants to join the Coalition, please leave your e‑mail address or some contact information with us.  I'll just leave my notebook out here so we can just write it and leave.  So to meet the meeting goal of forming an organization, we want to open up the discussion.  We want to hear ‑‑ we made all these claims and we want to see whether they are backed up by examples in different countries.  So, now we'll give people a chance to speak about receptions, or receptions of or response to the Right to be Forgotten in their regions or in their countries.  So I thought we would start with the home country, Mexico.  So, I wanted to give Alejandro Pisanty a chance to speak.  He's a professor in Mexico.  And then, after that

>> ALEJANDRO PISANTY: Thank you very much, can you hear me?  I come to these conversations with Lorena, who introduced me to the other members of the panel.  By expressing concerns about some of the effects of the Right to be Forgotten, the Right to be Forgotten is actually working let's say well in Mexico in the sense that there has already been some very visible cases which have been adjudicated.  There has also been political discussion about the political implications of some of these requests which are actually applying this right to the listing.  We're clear this is not the Right to be Forgotten, but in in m cases, this right has been granted to people who still have public function and things that have been deleted from search are things like previous accusations of corruption, so this is an interesting test case.  I will say very briefly why I am interested in the Coalition and why I am troubled by the Right to be Forgotten, or rather its implications.

First is that I see that the application of Right to be Forgotten is an attempt or a process where people are using tools from one tool to solve actually a different problem.  People are mostly trying to solve sometimes important and valid, you have to be very clear here ‑‑ it might be an important and valid reputation problem or the perception by third parties, how other people think or see you with data protection tools.  And the problem that's not actually a personal ‑‑ or at least not a classic data protection problem in the sense that not data that should be hidden, which have become open.  These are data or information which are already public, which you're just asking the internet not to make it easy to find them.

Second point, they are there for, is that first you are using a hammer to, where you should be using a wrench or something like that, pliers.  Second it's not erasing the information but hiding it under the rug.  If someone knows how to find it, where it started, they will still be able to find it.

And let say if you have an enemy or someone who doesn't like you much, they will keep a file on you from now on because they know the information may not be available in the future or easy to find.  They will bring it back to you.  This is basic human motivation.  We know these cases from long before the internet even was dreamt of.  It's not asking the internet to forget.  It's just asking the internet to get drunk so it may forget ‑‑ you may forget what you did last night but someone will remember.  And on the other hand, this personal will be buried, so it's like a drunkards memory, not a real structured and predictable erasure.  It is not really very compatible with the way the different technologies work.  It's not very compatible with the flatness, horizontality, the automation of the internet itself, of the internet layer.  It's also not very compatible with the way search engines work.

It introduced new friction into what should be an automatic process.  You should have search just work.  There are more and more algorithmic fixes to the search engine, many are just manipulations to the search engine but in general you're creating special cases.  Anyone who has done programming, coding, can think, you know, instead of having one simple algorithm going through the internet, you have to stop and look for exceptions everybody.  From a coding point of view, this is very inelegant and not a scalable process.  After a certain number of exceptions, your program is just going to stop working nicely or stop working.

And the final point I will make, the concern about the Right to be Forgotten that I have and others, I know, share, is that it creates the wrong type of incentives or at least a set of very wrong type of incentives.  It creates an incentive, for example, to keep a file of information that could be deleted or to search to try to penetrate the list of information that has been listed and make sure you keep a copy and that factor could actually be selling copies of things that have been deleted.  You create really a new crime, let's say, a new element of a new niche in the criminal ecosystem where people would like to keep things that are uncomfortable for others and you know they were uncomfortable because they were the subject of litigation of the right to be deleted.

The final paradox that the one who started the legislation for the Right to be Forgotten has become the most memorable person in the Right to be Forgotten movement.

>> Okay.  If anyone who wants to speak can raise hands.  Or Matala ‑‑

>> Yes, thank you.  I would like to add something to everything that has already been said here because I think that's really important.  I'm a journalist and by way of the being on the board of reporters without borders, I'm also a freedom of expression activist.  Some when the Right to be Forgotten ruling came out there was a big round of applause in Germany by many, many stakeholders who said it's finally done the power of Google is curtailed and so on and so forth.  Right?  Many of you already know that this narrative, but it didn't really take long before people started realizing that this was a very problematic take on things because of everything that KS and Alejandro already said, there are fundamental problems with the Right to be Forgotten and as organization reporters without borders has taken a pretty clear stance on this saying it's not a good idea.  Of course, the problem is that in Europe, this basically is law now because it's a ruling by the highest Court that cannot really be contested.  Well, force what you can do is try to change the law, but what I'd like to add to everything that was said here is that this is not a Dynamic Coalition against the Right to be Forgotten. 

It's a Dynamic Coalition ‑‑ or it's supposed to be a Dynamic Coalition for publicness and that is because we need a paradigm shift here.  We need a framework that gives us the opportunity to make clear that there is a value in this idea of publicness and therefore, make this a much stronger tool to protect the different kinds of publicness that we were talking about like freedom of expression or access to information but even more than that.  And this is what I'd like to say here, because we ‑‑ the Right to be Forgotten really was the outset of all of that but it's not the only thing that we need to debate here.  It's very, very important that we focus on this notion of publicness because it will enable us to do more things that be just defend against the Right to be Forgotten.

>> Thank you.  Okay we heard from Korea, Mexico, Germany, South Africa ‑‑ well, she wasn't here.  So.  Yes.

>> Do we have a handheld microphone here in this room?  Do we have a meek phone you can pass out?

>> There is one.

>> OLIVER: I'm Oliver, from the Philippines, and the Right to be Forgotten, I suspect, is ripe for adjudication and definition in the Philippines.  It actually has already been enacted into statute through the data privacy act, which was passed in 2012, and which took effect this year after some delay with the privacy with the implementation of rules and the data privacy act was not really branded as the Right to be Forgotten but it does implement a provision that gives the data set a right to order a data processor to take down any data or any information that is no longer relevant. 

So I think that's clear that this could very well be construed as, enshrining as a statute the Right to be Forgotten.  But I suspect that the moment that this provision is being actively enforced, it's going to meet some resistance, especially as it applies to journalists and it will eventually reach our Supreme Court.  And based on the trend of jury's prudence what the Court will likely to do is balance this statuary against the Constitutional right to freedom of expression and the right to information, both of which are enshrined in our current Constitution.  And perhaps at that point, I hope that the debate that goes on within the heart and arguments that be submitted by the litigators would be sophisticated enough.

And perhaps that's where a Coalition could come in if they are alerted with such a case, they could highlight or publicize it and essentially take it out of a possibly limited dimension within which the Court is going to look at it.  That said, there have been a few instances where, and even without the right to statutory right having been enacted, there have been times wherein similar issues have come up. 

Like, for example, I suspect that the most active enforcers of the Right to be Forgotten will be our politicians, especially as electoral campaigns draw near.  Like, for example, there are frequent attempts every time election season is near for Congress to pass a right to reply which I understand is also an issue in other jurisdictions which would give persons who have been commented upon by the media the right to equal space it reply, and that obviously is seen as a reputational ‑‑ is something to enhance or to repair reputations that may have been damaged and a right to reply is motivated by similar motivations.  And there is also the fact that some years ago, the Philippines Court acted of a request of the mother of a rape victim whose name was posted in the jury's prudence website of the Supreme Court and the mother had seen the name and asked the Supreme Court to take it down.  And this was taken down, but it was justified on a different law, the antiviolence against women and their children act which guarantees the anonymity of victims of violence against women and their children.

So, it's possible that when this case reaches the courts, that this particular rules may also come into mind and that would, I guess, be counted toward a side of privacy.  But it would be interesting if there are other experiences as well how courts and other jurisdictions have tended to balance these particular Constitutional rights.

>> Thank you.  Thank you.  Anyone else?

>> PAULA: Hi.  I'm Paula from the center for technology and society in Argentina and in University of San Andreas.  We have a data protection law which is kind of a copy of the Spanish law.  So, but data protection has been working consolation rides have been working in the country a language time.  What we haven't decided yet is whether intermediaries can be forced to release data.  Of course, our debate seems to think where of course data protection legislation on this sense so that he might require intermediaries to delete content on some data subject made to claim, but it's still unclear.  Of course haven't addressed that yet.  What we did have was just a case on privacy on intermediaries which mandates intermediaries to remove content once they are notified that the content ‑‑ and that relates to something that you say at the beginning that is removing perfectly legal content.  The thing is, once a data subject has indicated that he wants to cancel the processing of data, that processing becomes illegal.

So, in that sense, it's not perfect.  That's the problem we have.  In that sense, it's not perfectly legal content, from a freedom of expression perspective is of course and from the publicness of the place where that content is published is a problem, but from the data protection law, that content is illegal.  You shouldn't be processing it.  So, that's the challenge, and that's what is in some way ‑‑

>> Let me clarify this.  No, actually not.

>> I may agree with you.  It's the perspective ‑‑

>> No, no, no.  I just want to ‑‑ wait.  Wait.  That's what Argentina Court says on interpretation of the Right to be Forgotten or this is what the Argentina Court is trying to do in their own concept.  Just to clarify.

>> The way data protection is applied in Argentina is that once the data subject has claimed that he requests cancellation of the processing of that data, that processing becomes illegal.  So, that's a problem.  That's why data protection authority says, I have the power toward intermediary to the list, so it's not perfectly legal content as KS says that the the beginning.  That's the point.  It's considered illegal, actually.  From a data perspective.

>> That is challenge.

>> Yeah, so this is still unsolved in Argentina what is going to happen with intermediaries.

>> LORENA JUAME‑PALASI: But just one question I need to understand.  This means, actually, that data is legal until you cancel that.  As long as you said, I agree that you process the data, and then you say, I rethought about it and I don't want you anymore to process it, this means that the data was legal because people agreed with the processing, and then the data turns not legal anymore because you disagree ‑‑

>> The processing.  Not the data.

>> LORENA JUAME‑PALASI: Yeah, yeah.  Well, this is actually the same that we have in Europe, but this is not Right to be Forgotten.

>> But, it can be.  The mechanics of it is generally not to be forgotten decisions, actually.  Let's hear from others in the audience.  Yes.

>> Hi.  My name is Javier Polero.  One of the things I wanted to add to this nuance is that there were several views being considered about the Right to be Forgotten that not only rely on data protection because the Inter-American for Freedom of Expression established the right to people's honor is one of the limitations for freedom of expression.  So there are some statutory laws, like, for example, the civil code that may enable some form of Right to be Forgotten because it entitles people to sue some person to stop affecting the honor or the privacy of a person.  And so, if you are granted that action and the judge rules in your favor, then this person could be forced to stop exposing your information.  You can even, if you can interpret that person that is exposing you is a search engine or is an intermediary on the internet, if there's no law that protects the intermediary, then you could probably force using these statutory mechanisms, intermediaries or internet publishers to remove information about yourself.

>> But perhaps we could clarify on the criteria of the Right to be Forgotten because I think this is relevant for the discussion.  The criteria for the Right to be Forgotten is not that the data is offensive.  It is not that the data is touching your honor.  Because for that, there is already personal right regulation that will apply.  So that's not what the Right to be Forgotten is.  The Right to be Forgotten is when the information is no longer actual.  It's incomplete.

>> No longer relevant.

>> Yeah and no longer relevant so this means it's about information where they think, for instance, in Italy, they say, if the information is other than two years, you're allowed to delete it.  If it's offensive, it's not the Right to be Forgotten, but it's your right to personal rights and to honor it.  But, if it's older, so, that's the difference.  It was made public, and it was supposed to be public, and there was speech regulation, and publishing regulation that allow you to do so.  And also from the data protection point of view, it was okay to do so.

>> Right.  Right to forgotten touches deeper into the publicness.  I mean, we all understand that countries have different perception of privacy.  Countries have different reputation regulations.  Not just on publicness but also on relevance of the data, and we find it very harmful to freedom of people to find the value in information, not in the ways that data subjects want them to see.  Right?

So, anyway.  Now, soon, after fielding more input from the audience, we'll have a breakout groups to really start talking about, you know, what we should do for the forming of the Coalitions.  So, let's try to make comments a little bit short.  I know that all is because spent a lot of time, but, you know, that's how it is.  So, yes, go ahead.

>> DANIEL: Hi.  My name is Daniel Maylee from the center of national media and I enjoy this discussion because I think it's a very dangerous precedent but the other thing I was thinking about on Dynamic Coalition of publicness is I was thinking about the public sphere and one of the things we've been dealing with or thinking about is social media, the sharing of news and information and what people call these echo chambers and filter bubbles so there seems to be a fragmentation of the public sphere in some way.  So is this idea of publicness and public sphere related at all to what you envisioned for the Dynamic Coalition, and then also why publicness instead of public sphere, because I think there was probably a decision there and I'm interested?

>> I would say Right to be Forgotten is judicially enforced, but I will let Lorena speak on the concept while you are forming your thoughts so we can also field more input.

>> LORENA JUAME‑PALASI: I think it's a good idea.  We should include everything we want to include in.  So filter bubbles, echo chambers, however you ‑‑ this is something that it also concerns the idea of publicness, although I would not agree with the idea that now is happening at fragmentation.  I think the public realm is very nuanced.  You have different degrees of public range so it sort of depends where you are and what you aim to, and if you're general, with regards to how to works being a broadcaster in the 70s.  But I won't go deeper into that. 

The reason why we call that publicness was that the public sphere implies that as a closed thing.  And, we actually think in our conversations that look, in fronts, the private men from the etymological point of view means the cultivated men.  Why?  Because it's up to society to decide what is to be kept private and what is to be kept public, what should be kept private.  For instance, in Rome, the toilets were a public thing.  It was in the public sphere, people would sit down and talk about what they were doing and it was a pretty much social event, which now days is unthinkable of in many, many countries.  And the same applies for taxes.  Taxes used to be a very public thing and there's still some countries where this is also a very public thing and is being published so you can see who is paying what but in some cases like in Germany, this is a very private issue.  What we feel is public, what we feel is private, changes with time, across cultures.  It's something that is superseding.  So I don't like to talk about spheres because I think there is way more interaction that we semantically assume with that.  That was the reason.

>> All right.  It's ‑‑ what time is it?  It's 2:00 already.  So since all of you have been sitting in this stuffy room for about 50 minutes, I just assume that you all want to join or contribute to the Coalition.  So soon, we are going to be talking about actions and we will take down your contact information to keep you in the loop and things like this.  So we'll have about three more comments and we'll hear from a gentleman here and I believe someone from Indonesia and Peru are here so we'll just hear from these three people then we're going to discuss agenda.

>> JOHN: My name is John Clensen.  I'm from the U.S. but certainly not representing it.  I'm here under slightly false pretenses in another way which is I came here on the basis of my knowing something about how the internet works and I'm not going to talk very much about that either.  My background is in international political communications and mass media and impacts of those things when they're not wanted as well as when they are and some of this is beginning to sound very familiar, and it's not about the Right to be Forgotten.

A couple of observations.  The first is that there's traditionally a difference between curated collections and uncurated ones and one of the difficulties with internet search engines in the legal impacts is that they gather up stuff indiscriminately of truth or falsity, nonsense or not nonsense, various versions of reality and colleagues of mine have been making the distinction between stuff and data.  Stuff and information, and search engines are really good at stuff.

There's a bit of a history in keeping things from going away involving curated collections even when, in publishing them in ways being vulnerable to taking down and as necessary posting them on the internet and I think that may be something you want to include in what you're talking about.  The other observation along similar grounds is that this information is a big issue and one needs to, again, distinguish between important public information and other things and the internet has become in many people's mind very invasive of other things and there needs to be a balance there.  I can certainly agree that the Right to be Forgotten is the wrong solution to the wrong problem but that doesn't move us forward very far on what I thought were the main issues when I heard your introductions to what we were talking about.  Thank you.

>> Thank you.  Sir?  Yes.

>> Hello.  My name Isep from Indonesia.  As you know, we already have the new law, the Right to be Forgotten in Indonesia.  Not law, but only a provision on IT allowed in Indonesia regarding the Right to be Forgotten but the problem is unclearly what the means of the data can be deleted in these provisions and also the problem is in Indonesia we don't have data protection law and privacy law.  We have a lot of impunity cases in Indonesia that the Right to be Forgotten using by someone regarding the impunity cases in past of the background and what I'm want to asking is what the important piece, or what is the right for itself.  Because it just happened in Indonesia but there is no cases yet in Indonesia.  Thank you.

>> KS PARK: Thank you.  Partner, do you want to speak now?  Martin?

>> Thank you, KS.  I want to share some cases from Peru.  I'm Martin from Peru.  While maybe last year we had been talking about the Right to be Forgotten as a procedure against Google and search engines but today it has changed because in some cases in Mexico, Peru shows how data protection authorities are applying the right cancellation of personal data to justify complaint against digital media.  Well, the case in Peru is that earlier this year the Peruvian DPA solve a case in which a person involved in investigation of Ophelia requests the release of several search results and this is the typical case of Right to be Forgotten. 

And the ability to release search results and fined Google with 75,000 American dollars but later, with this president, the reality changed.  Because a judge or a minister of the Supreme Court of Peru requested DPA to order the promotion of fan investigation conducted by website.  His argument was that the investigation was used in his name or image without his authorization but the only thing this website made published was the avenues submitted by the judge with detail and increase by 500 percent his estate.

And then research that involved a member of the government was also announced to the DPA with the same arguments using the name and images and his image without authorization.  I think that Mexico has a similar case.  The it has been used unfortunately and unjustifiably.  Somehow, it's been used to control the media we as Civil Society must review and denounce these practices.  Thank you.

>> KS PARK: Thank you.  I think Martin's comment brings us nicely back into our original starting point where I talked about Right to be Forgotten can relate to democracy and political development of certain societies.  So, anyway, if you are all in agreement or at least if you have no objections, now, we want to start talking about concrete action plans, so, Lorena mentioned a little bit already but some people left and some new people came, so do you want to talk about those three actions one more time?  And then, before we start, we want your contact information so that we can keep in touch. 

We thought about breaking into groups, then I realized that our room is too small to have breakouts.  We were going to break out groups by each action but instead of doing that, we'll just talk about those three actions in sequence.  We'll just go through them as quickly as possible.  And through, you know, through that discussion, we will pass on a sign‑up sheet with where you can leave your contact information so that we're not going to spend too much time at the end of the session writing down the e‑mail address and things like that.

So when you get a piece of paper with names and e‑mail addresses, please leave your contact information there.  So, Matalas.

>> Yeah, we came up with ideas for three things to do that we think would be very, very helpful and valuable for this Dynamic Coalition and those are that we of course need to do some research in the sense that we need to find out about cases that harm this idea of publicness.  Now, most of them will probably be Right to be Forgotten cases, but it's not restricted to that.  We already heard some examples about where it's not about the Right to be Forgotten alone and sometimes it's called by different name and then again we have this protection of honor so it can be different thing that's interact or interfere with this idea of publicness.

So, this is something that we would like to do.  We would like to collect that and we would certainly make this an open collection, curated but open collection so everyone can make use of that.  Then the other idea we came up with is to produce a couple of test cases meaning that we would either use real cases that have actually happened that have been litigated in the courts or that are disputed and, or we might even ‑‑ we're not clear on that and this is why we also need to do the brainstorming, we could also come up with some fictional cases that we would present and that would present a conflict. 

You know, present a conflict in the sense of, is this information that should remain open, and so on and so forth, and ask people in a crowd source way a little like a survey to answer what their feelings are about these cases to get an idea of what in different cultures, in different continents and in different traditions is the feelings toward these different kinds of cases because it would give us and the entire Dynamic Coalition an idea of where to focus our attention and what work we need to do.  And then, that is probably something that would then be done in a ‑‑ yeah.  I'm not going to talk about how it's going to be done because that needs to be discussed here but we want to have a joint statement.  That is something really important for Dynamic Coalition to make clear what this idea of publicness is and why we think it needs to be created or defended, you know?

It's not really clear because you could argue that it already exists, we just didn't have a name for it yet or that we need to create this in order to have a concept of what we need to defend and therefore we need a joint statement that really presents to the outside world what this is about and these are the three ideas what we came up with, and now we are open to discussion.  Probably, KS, you want to facilitate that.  Should we start with a joint session or the research thing?

>> We'll decide together.

>> Okay, so whoever wants to start commenting on that, please share with us your ideas on that and then we go from there.

>> KS: So are you all okay with those three action items?  Yes.

>> Okay. I believe it's also really important right now, this discussion on Right to be Forgotten is like in its hype these days and people sometimes forget that it's jurisdiction, it's local jurisdiction has its own tools to address different issues.  So, I believe it's really, really important to make some sort of materials in order to make these tools accessible to people.  And if you are trying to make this like global workshop, maybe it will be really cool if you could improve the accessibility to these kind of legal tools to people who are far away from the tech realm or far away from the legal realm.  Because, yeah, I believe that's one of the things creating a bridge between people who are into these themes and people who just believe that actually Right to be Forgotten is the only tool available.  That's all.

>> KS PARK: I see.  So that's why we wanted to create online platform so people in different parts of the world can participate.  And also, yes, we will have jurisdiction by jurisdiction analysis, at least on the jurisdictions we have available information on.  Speaking of jurisdiction, also jurisdiction is really important issue in Right to be Forgotten right now because the way it's going, there is a risk that, what is ‑‑ the data can be elicited globally as opposed to in the regions where there is a Right to be Forgotten, in a law.  So, you know, people around the world will lose their chance, lose their access to certain information because it is considered forgettable in just one country so we will probably discuss that as well.  Any other input on the action plans?  If you don't have any more input we can go into discussing the actions themselves.  We can start with something that we can discuss together right now, which is joint statement.

So, yes, I have a kind of skeletal version of joint statement, but also want to hear from all the members ‑‑ now you guys are all the members of Dynamic Coalition, and all equal members.  We started it but we will only facilitate for the actions and interactions among the members.  So what should go into the joint statement?  Or, I can read what I have prepared, and then you can respond to it or you can add to it.

>> I was wondering because it's a tough cookie.  It's a text.  You haven't seen it yet.  Right now, what we need to do is send a proposal saying that we want to have a joint statement but we don't need to submit the joint statement, so this is something that we could work on.

>> KS PARK: Sure.  Sure.  But we need things to do for the next hour, or next 40 minutes.

>> Not necessarily.  No.  Meaningful things.

>> LORENA JUAME‑PALASI: Please, take the mic.  Give her a mic.

>> Paula.

>> Paula, yeah.  What we might do instead of a full joint statement or drafting a statement is thinking about the basic structures of what we want to have on such kind of a statement.  For instance, I don't know, is debated whether administrative agencies versus judicial orders, things like that.  And not meaning that, but the basic structures of what we would like to be reflected on such a statement.  I don't know.  That might be an idea.

>> Okay.  Having said that, any element that you want to volunteer for the statement?

>> I think that one thing to consider is from regions that actually have data protection laws.  Because currently, at least in Latin America, the concept of Right to be Forgotten and legal information is very blurred, I will say.  So right to be forgot n is used for not only data protection but privacy and content removals in general.  So, one thing might be to consider those difference, what happened if you already have data protection law?

what happen if you are, that follows the European rules or not.  So, model legislation is not necessarily following the European data protection laws.  What happened if you are in a different Human Rights system, I mean, our Inter-American system is quite different from the European Human Rights systems regarding freedom of expression.  We don't admit prior sense of shame, for instance, at all.  Or those kind of things that might indicate some nuances.  We need a judge to order content removals.  And.

>> KS: Yes, so not just a statement about Right to be Forgotten but should be broader to include data protection law, and it's unfortunate.  Yes?

>> Yes.  Hi, this is Autina.  I'm from the University of freedom of expression in Argentina.  I was just curious.  We're talking about joint statement.  I'm wondering whether we should talk about the purpose of joint statement before we should talk about what we put into it because I guess depending on the objective that we have coming out with this joint statement, we should think of one thing or the other.

>> KS PARK: Exactly.  That's kind of the discussion I was expecting.  I thought of joint statement as kind of an emergence response to the wild fire that's catching on right now in different parts of the world.  For instance, I'll be just frank about it, its (Indiscernible) in Korea also took on the idea of Right to be Forgotten, and they found it very attractive.  So, there is a discussion going on right now legislating Right to be Forgotten.  Indonesia passed one already.  So I thought that the purpose of joint statement will be showing some of the ‑‑ in a Civil Society business or in academia or technical community all outside Europe about their con sentence on spreading all the importation of this European idea into the non-European parts of the world.  So, yes, it is with a bit of sense of urgency that I thought a joint statement will be an idea.  And we can. 

Every state has presented a list of values as possible, it can also work as kind of a principle or it can work as some sort of literature that we can go back to.  So, I'm not thinking, although I said it with a sense of urgency, I'm not thinking shooting it out like within two weeks or in a month.  I'm looking at three to four months going through draft after draft through email, through a conference calls, and if it's a prolonged to six months or a year, then maybe we can meet at other global conferences.  Like IGF.

>> Yeah, and correct me if I'm wrong from the discussions we had in this small group preparing for this, it's also very important from the conversations we are having here and with other people, we need to make clear what the concept of publicness is because the first question that basically every has is, oh, publicness.  That sounds interesting.  What is it?  So this needs to be part of it to exemplify what we mean by this and not what we mean by this, but what we mean by this.  Right?  The Dynamic Coalition.  And that is also very important thing because if we want to continue working on this, we wouldn't need a document to point people to.  If we say, do you want to join this venture?  Do you want to participate in that?  And then the question will be, yeah, but what is it in look at the joint statement we prepared.  It will probably continue to be a work in process for a long time, right?  But that's okay because that's the nature of this Dynamic Coalition and of this kind of discussion that we are having.  But we need something to point to make it more clear to people what we are talking about.

>> ALEJANDRO PISANTY: Alejandro PISANTY speaking.  Can you hear me well?  I think we could become a bit more concrete and at the same time with that have a slightly better structured longer medium term program.  The statement of the skeleton, the very craft form that KS has already prepared basically lists some of the difficulties that we perceive with the Right to be Forgotten legislation or jury's prudence, and asks for a repeal of these legislation.  I would personal say that that the statements, first part, this should be fleshed out better.  Maybe also with some references to very specific cases that are of global interests even though they are all global.  Then we need to ask a question of ourselves which is whether it is achievable to request or make a motion to delete, to remove the legislation.  We cannot turn back the jury's prudence, but the legislation may eventually be repealed but the jury's prudence will be there.

Or rather to instill the criteria that guides judges and legislators for better Right to be Forgotten legislation or decisions and to start protecting memory by publishers, by lawyers, victims, and by librarians.  We have sparked some interest by the cement.  National library showings.  The representative was there.  As they become more concrete, we have to join.  We also have interest, and unfortunately, they couldn't join meeting.  Other parts of Latin America, in particular Central America where there have been recently very serious Human Rights violations investigated and they have to continue to be investigated until they are clear and these people are extremely upset with the RTBF.  On the other hand, I don't think they think that it could be repealed.  We could also look a bit into the refinement of the name of publicness, to see among other things if this is an attempt to do things globally.  Limited, but more like a source others can use, analysis others can use.

Whether the name publicness translates well into other languages.  I personally have already spotted a problem with Spanish because there's no room with publicness, and if we use

(speaking non English language)

It means both the character which is public.  It is used, for example, principle of maximum publicity.  It means making information transparent but also means advertising.  Most people will understand as advertising.  We even have problem when we're training people in transparency when we use that term.  Most people think that it should be paying adds and that's not what we mean.  We mean all ads should be made as public as possible.

So, we should work on this.  This is a kind of discussion we will start on a structured way on a short mailing list, probably an online form to be less intrusive on your inboxes.  We will look for technical means and we probably will be starting to work in earnest in January because both the southern and northern hemisphere, the period around the new legal year 2017 is always complicated with holidays and travel and other non‑work activities, but we'll keep people informed and start working in second or third week of January.  Also, before you guys in the south go for your total summer, leave with something to read.  I don't know if that sort of sets a workable, likable kind of thing.

Would you all like to continue to receive at least one more email from this group?  And we will make it more public.  And also let's say make sure that we have pay solid foundation for every statement that we make.

>> Thank you.  Naleka from Sri Lanka.  We need to perhaps certainly pay attention to central point, which is the Right to be Forgotten, which is personal in nature.  But there are also collective victims of authoritative regimes and dictatorships where entire societies are trying to come to terms what happened to him.  In such cases, the public memory is securing as secure record as possible is very, very important to healing and for transitional justice.  And in such situations, public memory becomes vital and if we can bring in while we look at the personal, we can also look at research and advocacy.  Just want to flag what was said.

>> We have another comment.

(speaking non English language)

>> We don't have translation, but I can offer ‑‑

>> ALEJANDRO PISANTY: Why they have a data protection law.  She doesn't have jury's prudence cases but some academic study.  The RTBF is included in the cancellation right.  It's human rights.  So she's speaking now ‑‑ perfect.  There's the ARCO rights in data protection and ‑‑ repeat it.  And there's a balancing between different human rights when you come to these cases between the privacy rights and data protection rights and the rights of other parties.  Particularly in crimes against humanity or outrageous or egregious crimes, there is a right to investigate.  These are the rights that have to govern.  These are not absolute rights, despite being human rights.  Concrete cases of Coalitions among these rights required individually focused upon duration.

>> Very quick because as you can see, we're running out the door.  Just in terms of the content of the joint statement, without getting into the whole discussion of balancing rights, but I was thinking it might be interesting to bring this new rationale, how to build this whole thing under that setting because I think the principles were successful enough that we can build on them instead of just doing completely different things.  So it might be interesting to see how we get them into this thing.

>> KS PARK: I'll talk to you separately about this.  I have your e‑mail address, so I'll find you.  There are some strategy considerations.

>> Yes, we were discussing this about taking the format of principles, I'll go back to what you said before, what our purpose was Manila principles with r very successful, for instance, on traditional cases because they were easy to cite by judges and understand.  So depending on what our purpose is, that format might be better or not but we need to consider that if we want them to be easily cited by policy makers and judges, that's a good format.

>> And the other thing ‑‑ sorry, just very quickly.  We don't want to undo the Manila Principles with a new statement.  So, that's something to consider.

>> All right.  If there is not anymore input, maybe we just adjourn, but one thing that we said we'll do is the Dynamic Coalition began only with five people, if you are plus one from South Africa who is not here, so, if there are people who want to work more actively, kind of join a currently steering committee or some sort of steering committee ‑‑

>> ALEJANDRO PISANTY: Pisanty.  I know the system is phonetic and thanks for all this great work.  The offer that we are making is that we will start this with a steering committee, and as soon as we can assess whether there's actual interest in people joining in and work to be done, then we will create an internal governance that ensures renewal of leadership, inclusion of all interested participants and transparency on accountability of how things done.  These will be within one year, at mote.

>> Right, so the actual governance structure will be more detailed and sophisticated and it has to meet the requirements of a Dynamic Coalition, but even having that discussion, even while having that discussion, we may need more people join there.  So, in one way, we can think about, this is by continent as well.  We already have two people from Europe.  We have Alejandro if there is any person in Latin America who wants to work with Alejandro or at least strengthen Latin American registration, we can take a volunteer now.  Also, in Asia, it's just me, now.  If there is anyone who wants to work Leslie with me on this, I'll also take a volunteer as well.  Or you can talk to us privately after we adjourn as well.

>> We'll be easy to find.

>> KS PARK: Okay.  All right.  Thank you, thank you for, you know, sitting through the long session and thank you for active participation.  I think input level per number of participants, I believe, is very high compared to other sessions, so, thank you very much.  Let's end with applause

(applause)

(Session was concluded at 2:40 p.m. CST)

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