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FINISHED TRANSCRIPT

 

EIGHTH INTERNET GOVERNANCE FORUM

BALI

BUILDING BRIDGES – ENHANCING MULTI-STAKEHOLDER COOPERATION FOR GROWTH AND SUSTAINABLE DEVELOPMENT

OCTOBER 24, 2013

8:30 A.M. – 10:36 A.M.

JC6-WORKS WS102, WS 110, WS 205

DIGITAL RIGHTS PROTECTION IN EUROPE AND LATIN AMERICA

 

 

 

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This text is being provided in a rough draft format.  Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.

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>> RAMIRO ALVAREZ UGARTE: Good morning, everybody. Welcome to our panel. I think we take advantage of the venue. It's good that we are all around a huge, big table. Our intention is to have a meaningful dialogue on several issues. I am Ramiro Alvarez Ugarte from Argentina. We're organizing this panel along with many friends. The panel is on Digital Rights Protection in Europe and Latin America. Our goal is to build bridges, the overwhelming theme of this meeting is building bridges. And I think with our panel, we're trying to do just that, build a huge bridge across Atlantic, Europe and America to find out which ways we can protect digital rights in these challenging times.

My introduction will be very brief. We have decided on a few specific topics to guide our conversation. We're going to try to discuss the issues that are happening specifically in both Europe and Latin America, such as privacy, protection, surveillance will probably be part of our conversation, and we will have a special focus on digital rights protection, meaningful ways which we can protect digital rights and so on.

So the format of the meeting is going to be like this. We're going to have very short presentations by the panelists. I'm not going to waste any time presenting them. I will ask them to present themselves very briefly, please. And I will assign an order of presentations.

So I will ask Luca to begin, please. Introduce yourself, please.

>> LUCA BELLI: Thank you. My name is Luca Belli. I work at the university in Paris. I am also serving as an expert for the Council on Europe. And I am the founder ‑‑ I will speak about net neutrality. I think this topic lends itself very well to comparison between Latin America and Europe -- first country in the world, South America, Chile. The example of Chile was followed by European countries, Norway, Slovenia and also England that has provisions that grant access to unfiltered internet.

And, again, we have seen this dialogue between Europe and Latin America that has been corroborated by the statement saying net neutrality is a priority and it should be protected with the policy and legislation.

So I would like to first define what is net neutrality, and why it is important for human rights and for the protection of human rights online. So it was an expression created 10 years ago. It designed it as a natural design principle. So it's a principle according to all the content, services, and platforms should be treated in an equal fashion so that the end user can enjoy universal access to the internet. And this principle has been integrated by the Council on Europe in 2010, the net neutrality declaration. So the Council of Europe has explicitly stated its commitment to the net neutrality principle saying that end users should have the greatest possible access to content, services, and applications of their choice. This is a non‑discrimination principle.

  So this is important because it defines how you can manage internet traffic without discriminating specific content, specific recipients, specific center of information. There are implications with regard to a number of human rights according to the discriminate measures taken. So if you think about blocking, when an ISP blocks a legal application or service like voiceover IP or peer‑to‑peer, the highest in this moment, the end user's right to receive and impart information and idea. So blocking Skype, for instance, he's impeding an end user to express himself and to communicate.

I don't have to remind you that freedom of expression is protected both by the Article 10 of the European Convention of Human Rights and Article 19. If we pass to another measure, filtering, that is based on analyzing traffic. Before if deciding to block it or prioritize it or downgrade it, we immediately understand that when we analyze the content of data, we impinge upon end user's right to privacy. Exactly as if a postman was opening a letter and checking the content to understand if he has to deliver it today or maybe tomorrow or if he had to add some advertisement according to the content of the envelope.

  So that is obvious consequence on privacy and data privacy. So privacy is a fundamental right protected by Article 8 of the European Convention of Human Rights and the Article 19. And data privacy is protected by Convention 108 of the Council on Europe.

I will finish with the last point on discriminatory measures about prioritizing. We are hearing a lot of discussions today about prioritization, also because that will be ‑‑ it is allowed by the actual proposal for regulation that has been corroborated by the European Commission. It allows for a pay for priority offers. But when one can pay for priority, some content service will enjoy a better priority because they will be prioritized and other will have a less efficient quality. So the choice of the end user will be automatically oriented towards some kind of information, some kind of ideas. And the diversity of media content are essential for the functioning of democracy and essential of freedom of expression.

I think we have to consider all of these issues. I look forward to discuss it further with you. And if you have any questions, don't hesitate to ask them.

>> RAMIRO ALVAREZ UGARTE: Thank you very much.

  Carlos Affonso, would you take the floor, please?

>> CARLOS AFFONSO: Sorry. How many minutes?

>> RAMIRO ALVAREZ UGARTE: Around four to six minutes.

[Laughter]

>> CARLOS AFFONSO: I am Carlos Affonso, one of the four representatives of Civil Society representations on the board. And I am also ‑‑ I collaborate with a research institute. I thank Luca for this good introduction. It saves me a few precious minutes.

[Laughter]

We are currently in a political struggle in Brazil to defend what we call the civil rights framework of the internet. This has been originally based in a set of 10 principles which cgi.br after two years of going back and forth approved by consensus. It's basically the idea of having a structure of principles for the internet in Brazil which would be a reference for bills of law for regulations, etc., etc.

The chart itself will not establish all the rules. The idea is not that at all. So one of the big fights we have actually is deciding what belongs to a charter and what belongs to a specific law. This is a big challenge we are having.

I think the three pillars, which are basically being disputed by the different groups, is net neutrality, protection of privacy, and one which is quite relevant for us as well is accountability of intermediaries.

Now, I remember in IGF in Lithuania or Latvia, I don't remember, a minister of defense of a European country said we had to make the networks accountable for content because in the name of security and in the name of violations of rights, etc. And we are insistent that you don't want to kill the messenger and you don't want to empower the messenger with law enforcement. And sometimes there are bills of law which Brazil itself is confronting now that suggests that this power be not endowed but imposed on internet service providers. So in order to run the service, they have to accept the Sheriff star here. And if they don't, they will be accountable.

And this is extremely serious and dangerous. No? One of the key points of the civil rights framework is to make sure that the network is not accountable. They say responsible for any content are the generators of that content. No?

Another challenge we have is that we have ‑‑ I don't know if you know, but we have every two years elections, either municipal elections, 5,570 municipalities, and now next year we have the federal elections which you elect governors and the President and federal deputies, etc. It means that the country is almost permanently in electoral processes, which is terrible. No? It's good that we have electoral processes, representative of democracy, but not every year. No. It's terrible. So we are always under the purview of the electoral tribunals.

  And the electoral law in Brazil is very restrictive, very restrictive. It's using the power of these electoral law. People can say take down sites, take down content on the internet with the local judge using the powers of a local representation off the electoral and so on. And people look at Brazil and say, no, that's a repressive country. No, no. Only electoral when it's in force. Like now, I think the beginning of next year we will be under the electoral law for whole purposes of communications. We will be under that. We have to respect the law.

So, one of our big issues is to reform that law in order not to violate principles of privacy and/or accountability of intermediaries and so on. So the civil rights frame of work, we will be above that law if we manage to approve it. And we will be the reference. No?

Regarding net neutrality, what is the biggest challenge we have which is the same as in Europe, I think? There is an organization of the big Telcos, telecommunication companies. And in Brazil there is ‑‑ it's run by the quintet of big Telcos which are all transnational corporations. The decision-making is not made in Brazil. It's made in Europe or Mexico or the United States. No?

These companies are arguing that the net neutrality principle, as described by Luca regarding the network, the connection in transport of data of the network, they say, no, we have the same rights as Google. We want to peek into the traffic running through our cables and make money with it. So we have to peek into all the content like Google does in the sessions. No? And we want to make the same money. It's unfair for us. That's the argument.

And actually, they are doing that because there is no specific law preventing that. They already peek into the network. In Australia there is a big case with Telstra, capturing all data and selling raw data to advertising companies. This is not illegal. The civil rights framework will make sure that this is clearly limited and cannot be done.

And why? Why? What's the difference between Google and, say, Telefonica or Italia, Telecom Italia, running the networks? It's simple. The user cannot get into the internet if they don't pay them, pay Telefonica, to get the broadband. This is a paid service. Without it, you cannot get on to the internet. While Google is free, voluntary service. You are not required or obliged to go there. Once you go there and you agree with the terms of service, which nobody reads, you are, through the conditions established by the free service they provide, and you are not obliged to go there in order to navigate the internet.

  You can live without Google. I am probably the only person in the entire universe that I'm not on Facebook. And I can live with that. I feel ok. Nothing is happening to me.

So these are key points that we are fighting for. And we hope to win. I'm finishing. Just one phrase more. The civil rights framework is in a fast track process in Congress so all of these forces are now doing their last efforts to make sure that they can change things, etc. But we'll know about it next week. Thank you.

>> RAMIRO ALVAREZ UGARTE: Thank you very much. Thank you, Carlos. Thank you, Luca. I think we're beginning to see a few points of connection, principles developed within the Europe, the expression in local laws, a similar presence going on between both regions. And we also, I think, have probably similar challenges when it comes especially to service providers and especially the powerful big Telcos that Carlos just identified.

Going to give the floor to Marie.

>> MARIE GEORGES: I used to say that I am a grandmother of data protection because I started in the 70's, right at the beginning. You know, we have in France a law. The battle starts ‑‑ started at the Science Research Center for Computer Science. So it is not ‑‑ it is quite interesting. And then I've been in data protection at the Data Protection Authority in France. Then four years in Brussels to make the directive of 95, which is currently a revised. And I worked also with International Organization which took the subject. I have, also, in capacity building new DPAs which are set up by laws. I have been in Africa, Asia or so.

Ok. It's only history that made Europe needing data protection laws right at the beginning. Computer started to be used to manage enterprise. Before it was only scientific and military. And right away when it was very expensive at that time, so big enterprise and states were using those; not small enterprise. It was too costly. And right away people thought, well, information and data processing is power. So if they have more power with information what about us?

The principles that we all live on in the world have been invented by the United States. The terrible thing is that the United States has not been able, for political reasons and economic reasons, not able to have a comprehensive framework for data protection. Some laws, sometimes, when there is a big rush. But that's the situation.

So I don't know if you need me to recall what are the principles. What is interesting is that even today they are still very useful. Even when you talk about big data and you start by asking yourself, what is the purpose of the process you want to do with the big data? Is it legitimate, the data adequate, with the purpose you want to do? How long are you going to take it? You're going to make profit? Oh, oh! Well, we need some better guarantees. And those will be ‑‑ so.

Ok. That's the kind of questions that you always cannot ask yourself. But each time there is a new IT, you think, oh, well because the new IT are presented with, I would say, commercial words. So you don't see the link. But each time you can do it.

What is the state of play? The Council on Europe, it's 47 states. 45 has data protection law. Of course, a movement of democratization. It had been very important, even on data protection. When Portugal and Spain got out of dictatorship, right away in their constitution they put the data protection principle in the constitution.

When the wall went down in Berlin, it started also. It had been a mission of the Council on Europe to have the rule of law. It was financed by the EU often, but Council on Europe, it's a human rights organization. So they were in charge of helping all of those countries to get the rule of law. And inside there was the data protection. Because the Council on Europe adopted the convention. It's the only international‑biding instrument on data protection with all the principles I told you. The organization, the OCDE, adopted the guidelines not binding. At the beginning of the discussion on the convention, U.S. was there, at the Council on Europe. And when they saw that Europe wanted to make a binding instrument, woosh, they went away, and they made only guidelines in the OCDE.

Then in 1990, the U.N. adopted unanimously at the General Assembly all the principles, unanimously. But the U.N. didn't do it ‑‑ didn't do much since that. It could change, but it will take time. Look at those principles. They are very technical, very interesting.

The same that are in the directive of Europe, 95, which is updated now. This convention is open to third countries. The first third country which was to the convention was Uruguay, 1st of August this year. Morocco is in the presence and some others also.

Since 2000, many countries ‑‑ the rates of adoption of data protection and laws in the world is going fast. And since 2000, many. Today, according to a colleague from Australia, there are 101 countries with data protection. The last one is South Africa. Last September.

As I told you, the convention is on a revision. The idea is to get data protection sustainable with the IT going fast. You need to be sure that all the time the members of the convention, the parties, are still in line with data protection. So the new convention will have several aims. First no choice. All the parties have to apply the data protection in all sectors, even secret services.

Thank you.

That was said two years ago, before. Electronic and manual data. Some rights are reinforced, especially regarding profiling. You can know the logic which is behind data processing and so forth. And the committee, there is a committee, one party, one vote. The committee will assess the level of protection when there is ‑‑ when it runs to the convention, because you need to have a law to adhere to the convention. And this is very good. And there will be assessment every five years about.

And also, what is interesting is that the principles has to be applied to particular sectors and so forth. And the Council on Europe already, through the committee of the convention, elaborated a lot of recommendations. There are two very famous: the one on police, which became right away binding in EU from the Council on Europe; the Telecom one, which is copied in many countries. Even if the Council on Europe which has not much money doesn't go to make a lobby about their work, you'll find the recommendation.

I just wanted to tell you that many of the countries of Latin America, as other continents, had been invited for the last step for the adoption of the new convention. In Latin America, those which had been invited are Mexico, Argentina, Bolivia, Chile, Costa Rica, Nicaragua, Peru. Because those started works.

  I was hearing our colleague from Brazil. And as I have been invited two years ago to Brazil for the data protection draft law, I wish to know where you are. And we will be very interested to continue to work on the applications.

So first the modernization. After that, when you're out with us. But you can contribute anywhere on the world level. So I can give other details if you need further on.

Thank you.

>> RAMIRO ALVAREZ UGARTE: Thank you very much, Marie.

Yes?

>> The data protection law in Brazil is going through Congress now. It's a very protected process.

>> RAMIRO ALVAREZ UGARTE: Thank you very much. I think an interesting point, the history of data protection in Europe had a huge impact in Latin America, in our own data protection laws. It's an interesting thing you mentioned about the way a country's transitioning from the regimes, begin to adopt these regimes. It seems like because of recent revelations it seems like an interesting moment to reassess these laws, in terms also of transitional justice and so on.

Ana Lucia, please.

>> ANA LUCIA LENIS: Thank you. My name is Ana Lucia Lenis. I'm the Manager of Government Affairs for Google in Latin America. Thank you for this invitation. I'm glad to be here.

Maybe I want to highlight some issues about data protection to continue the debate that Marie started.

I think I can, again, share a little experience that we have in Latin America. We have been involved in data protection debates around our countries. We have in Mexico a few years ago, the debate and laws in Colombia and Peru last year, and the development of the regulation during this year. So we have a new Data Protection Authority in our countries. We have an open process in Peru and Chile, sorry. And initially we have revelation in Central America. So we see a lot of new regulation and new data protection authorities in our region. And it is very important to continue the debates and the public workshops, the opportunities to debate what is happening in other regions, especially in Europe. We have the American Network of Data Protection. So it's a forum where we have to participate, you know, European countries and Latin American countries in a permanent debate about data protection and the most important issues.

Additionally, we are seeing a lot of local and regional international workshops in Latin America about this important issue. Maybe I just wanted to highlight the importance of the protection of the privacy and the data and additionally the balance and the importance to the free flow of information and guarantee both rights in the legislation.

  So we have a lot of very interesting debates with the authorities, with Congressmen with government, about how to guarantee this balance in the laws and finally in the regulation in a very, very interesting debate in our region. So it is an invitation to participate because we are still ‑‑ we have open debates around all Latin America so maybe it is a good opportunity to highlight the importance of the participation of all the stakeholders in the IGF in those processes in our region.

Thank you.

>> RAMIRO ALVAREZ UGARTE: Thank you very much, Ana Lucia.

I was asking about posing a question that I will throw to the table, and maybe we can go back to it during debate. But I was wondering what kind of measures can be taken not only to pass laws on data protection but to make them effective.

I know of a few cases where the problem ‑‑ the part of implementation of these kinds of complex laws is a real challenge in Latin America. I think we have faced those challenges in several laws of the kind we are talking about. It's interesting to think also, about for instance, the implementation of Brazil and the future to start thinking now about implementation in the future and also connecting both points. It was mentioned before in which ways powerful actors, such as Telcos, can be made to abide by these laws, which is part of the implementation.

Now, Matthias.

>> MATTHIAS TRAINER: Thank you. I'm Matthias Trainer. I work in the Austrian government. I'm the Director for a department responsible for media policy and information society questions in the Federal Chancellery. I've been involved in the Council on Europe working for also quite a long time. That was during the Steering Committee. It's dealing with information society in general. And I'm also very much involved in the EU and the digital agenda which is, let's say, the framework in this organization there.

My intervention will especially try to be a contribution to the general topic here of this workshop. I want to especially refer to one project that is actually underway in the Council on Europe. It's based on the idea that we all talk about here ‑‑ rights protection, data protection and so on. But the real question is, do people understand what we are talking about?

You are all, I'm sure, not here in this event for the first time at an event like this. You all have met many friends here maybe. You often meet the same people. You often hear the same words. You often nod to each other because you're satisfied you have heard this or you often shake your head and say, no, absolutely not. But to be honest, aren't we kind of a close circle here in the IGF or at all of these conferences where we go and talk about the internet governance?

Have you ever explained, and I'm sure you have, to try very simple to people outside what do we talk about when it's internet governance? Have you explained in two minutes to somebody what are you doing at the IGF? Maybe you have, and you will maybe talk about access to internet. You will explain to people it's about freedom of speech. You will have explained it's about your right to be on the internet maybe to be anonymous. But that's it. What we saw in the Council on Europe that there is a need for better understanding of the actions and behaviors of people, governments, private sector and other, access that can affect rights and freedoms in cyberspace.

In the project I was mentioning, the Council on Europe is now preparing a guide on human rights for internet users. This guide should be a tool for everybody, not only maybe for the European people but worldwide; a tool for everybody to know about your human rights and the possible limitations. It should give you information and orientation, what they mean in practice when you go online, how they can be ‑‑ how you can rely on it, how you can act upon your rights.

  And especially one point I want to mention is the access to remedies. The question of the access to remedies, of course is maybe the most crucial one. When your rights are injured on the internet, of course the first question you get as a lawyer, what can you do? And what is the response? Well often, "it depends." To get an answer to the question, yes, but who can explain to me, then, what's the final solution of the question, of the answer it depends?

  First is you have to tell them where can they go? So one important part of this compendium will be also this right to an effective remedy. And this is fully applicable to the internet what we find in the European Convention of Human Rights, in Article 13, that everybody whose rights and freedom are violated as set forth in the convention shall have an effective remedy before a national authority. And last, not least, after the exhaustion of the national remedies at the European court of Human Rights.

I'm not so much involved, say, in the American court of human rights. And the system is different also. Because, for example, in Europe, in the context of the European convention of human rights, we have the big advantage that individuals really can directly go to the European Court of Human Rights. What is I think not really possible in the American system.

Nonetheless to go to the court and say, for example, my internet rights have to be infringed, this is often a long way. It takes four years, five years, six years. So you have to know also what are your remedies maybe on the spot? And this is, let's say, quite a delicate issue because it's not only that you tell people, ok, go to the next authority because which authority is responsible, go to the next court. This was also expressed in this guide. Remedies, effective remedies, cooperate social responsibility. So it's not only a question of, let's say, the state authorities, but as we all know, and my friend from Google, for example, here will know that very well, it's also responsibility of the companies, of, let's say, stakeholders in various positions.

Why the state finally has a positive obligation, what the court says, that also ‑‑ that everybody is also protected from attacks to human rights from private companies. So it's necessary that already private companies do on themselves think about strategies, how to help users to understand their access to remedies.

This all is covered in this compendium. I'm very much happy to go more into details in that. I just wanted to inform you that this handbook now is underway. There is actually consultation on it going on. We invite all stakeholders also to do a contribution to that. You will find it on the Council of Europe's website and the information society. I say it very simple, just Google it. Yes, compendium. Guide on Human Rights for internet users, Council on Europe. You are invited.

As regards to time, the adoption of the guide, the Council on Ministers is scheduled for early 2014.

Thank you very much.

>> RAMIRO ALVAREZ UGARTE: Thank you.

  Ana, you wanted to say something?

>> ANA LUCIA LENIS: A quick moment. Thank you for your comments. We are taking notes. Additionally I want to tell you that we are starting this important document. And I'm sure that a team is going to participate actively in the debate about this invitation for all the multi‑stakeholders to participate. Maybe highlight that this is a very good example of what we need for other regions, no? The idea that if we are ‑‑ to have an open debate about the concerns for government or different stakeholders, and the opportunity to participate for everybody.

>> RAMIRO ALVAREZ UGARTE: Thank you very much.

Another short ‑‑ sorry. Go ahead.

>> LUCA BELLI: I just want to build up on what they were saying about remedies and about an open debate.

About remedies, yes, it is essential, coming back to the discussion on net neutrality, it is essential to define what is, what is not, which are the limits, and what are the remedies and who is competent for remedies and how long does it take to reply to a complaint.

  So two anecdotes about this. One is from South America and the other one from Europe. From South America, Chile, the authority that is responsible, competent, to analyze the complaint, was sitting on thousands of complaints that it didn't analyze. There was no rule that was explicitly specifying that he had to analyze in a timely fashion.

An anecdote from Europe, since 2009, the Telecom package, its directive, in 2009, states that when the measures that define how content should be accessed and used online should be compatible with the European convention of human rights. But it does not define who should apply to the convention and how.

So since four years we know measures should be compatible with the human rights, but we don't know who has applied them and how to apply them. And the -- of the European stated explicitly that electronic communication are not competent for human rights issues. So we know we have to apply them but we don't know how and no one has the competence to do it.

So last point, what is essential is to have ‑‑ to involve all the stakeholders in the debate. Not just to be ‑‑ just to say everyone has to speak, but to have a net neutrality of point of views and to analyze all the different facets of the debate and know which are the issues that should be tackled and how to be effective.

>> RAMIRO ALVAREZ UGARTE: Thank you very much.

Sorry. I'm going to move to Claudio because I don't want to ‑‑ then we can open the floor to discussing all the issues.

>> CLAUDIO RUIZ: Thank you. I would like to thank Ramiro for the invitation. I think it's important to have these conversations and started thinking what is happening in North America and Europe. I just wanted to share a little bit about what are the realities and what are the practices that at least we have in Latin America and the example of the net neutrality regulation that Luca has recently pointed out. I think it's quite important, especially in the case of Chile where it was one of the first countries in the world to have this kind of provision despite what Miguel ‑‑ what a person here can argue.

The point is, I totally agree with Luca, I think it's quite important to not just provide this into law but actually give the local authorities the enforcement powers to get over the thing and not just talk beautiful words about what net neutrality means but actually have the force to enforce that kind of provision.

  I think it's important to go to other issues related with what is happening in this region. And I think it's important, at least, to get into account that two important issues that have been discussed in the last years, which is the cybercrime regulation that we have and especially copyright and how copyright regulation has been a very important ways to somehow affect human rights from the point of view of rights of the users.

  I think it's important to take into account experience that we have in the region over the last years, especially the case ‑‑ it can be very interesting and it's very wide‑opening in some parts. The drive and process that they have in spite of the fact that we don't have a very clear idea what will be the last word there and what will be the results.

I think it's important to not just think about good examples but also bad examples. And we have tons of them in the region, sadly. I think, for instance, in the last example of Peru, for instance, a couple of weeks ago, a new cybercrime regulation was discussed in a very short process of five hours and actually was a very complicated law, has a lot of provisions from the human rights prospective. I think it's important to think of why that is happening.

From the Civil Society perspective, I hear a lot of explanations for that. Especially talking about copyright, this is quite clear. From Civil Society we always try to think about what are the reasons that we have that kind of regulation. And what is the main explanation that came up very easily? It's about that our Congress doesn't have any idea what the internet is about. And actually, a lot of examples are related with that saying, well, there's a lot of ‑‑ there's a lot that don't use e‑mail at all. It's one of the most feasible, at least, explanations, but why we have that kind of regulation.

I think it's more complex than that. And that's not especially the case of why we have this kind of complicated regulation. And I have the feeling that the explanation for that is in two ways. First one is because of the lobbying efforts that we have been facing. Maybe in Europe you have a more structured way to just handle that kind of pressure. But in the case of Latin America, it's a whole different story. It's so difficult to having a more reasonable conversation between all the stakeholders because of the pressure of these companies all over our governments.

And I would like to take what Matthias said about the better understanding of the law. I think it's a very important issue. I totally agree with what you're saying. I think it's very important what you're driving. And I think it's something that can also help us to explain what is happening into the region and maybe to have a more fruitful conversation into the region, too.

And I think -- just because I'm running out of time - that the human rights, from the human rights standards point of view, are very, very important. This is something that I talked about yesterday on another panel, about what the human right standards that are applied to the internet are. It's quite easy to just talk very wisely about the thing. But I think it's quite important just to set what ‑‑ in the case of Latin America, we have a very important ‑‑ into the American human rights system. I think it's quite important for all the actors taken into account to just have a very more interesting conversation when we're talking about the standards.

Secondly, I think it's important to talk about the agreements and how the FDAs are affecting the way that our ‑‑ are taking into account the discussion over human rights on the internet. And I think nowadays the TPP, Trans-Pacific Partnership, it's by far one of the most complicated issues, discussing at the international level which sadly we don't have pretty much information about because it's secret because we don't have any information at all about what they're discussing.

  Because even our Congressmen doesn't have any idea what our governments are trying to achieve because of the FDAs. And the only information we have, and this is the only reason or the only explanation that the Civil Society ‑‑ the only information that the Civil Society has about the thing is all leaks. And the last leaked was in February of 2011, and it was the leak of the USDR proposes over copyright which are so complicated, against freedom of expression. And actually some of ‑‑ they go forward about what actually the U.S. regulation they have on copyrights.

So I think that's a very important issue to think about when we're talking about relationships between human rights and internet. And finally, I think it's important to think about how to solve the gaps of information. Because the information gap that we have, it's one of the key issues when we're talking about this. If we have a more feasible information about the discussions, about the standards, and about practices, can be so helpful for our regulators to just have ‑‑ but they have a good understanding and therefore better laws applying to human rights and the internet.

And this is an example that I can talk a lot because I've been part of this coalition of Civil Society organizations into the region which is ‑‑ of course, in the case of Argentina, in the case of Colombia, and in the case of Brazil ‑‑ in Digital Rights Latin American newsletter that I'm inviting all of you if you're interested in discussing about all what is happening in the region, to take a look at it. Subscribe maybe to the newsletter where you have eight different articles, new articles each month, where one of the most important Civil Society organizations on the region are analyzing critically about what is happening in the digital rights perspective.

So I think it's important to solve these gaps. What Civil Society can do is very little and is short‑term. But at the same time, I think it's important. This newsletter is a first step to solve a lot of information that we have. And I think it's important for all of you to take that into account, to move on and have the understanding of human rights issues into the internet.

Thank you.

>> RAMIRO ALVAREZ UGARTE: Thank you very much. We have a lot of issues on the table. I was going to try to summarize this, but I'm not going to do it. I'd rather have ‑‑ to start a conversation. So maybe if the audience is interested, we can take two short comments, please.

  Somebody?

>> Thank you. One question I have is for Carlos. I was interested in this framework that is proposed for the ‑‑ liability in Brazil. It says that basically the responsibility for the content, for the legality of the content, lies with the originator and not with the platform. This is quite ‑‑ it can only be replicated if one thinks of the Communication Act in the United States that gives immunity to intermediary liability operators when they decide over the decency of the content over the internet. So they are free to take down their wheel, essentially.

So my question is, in this regard, would this give full immunity to any particular field and what about the other side of the coin? So when an intermediary is perpetrating a violation of freedom of expression by allowing a claim of takedown, is it responsible in any way of violation of human rights?

  And if I may, second question regarding the ‑‑ it's addressed in particular to the representative from the Council on Europe, with regard to this new wave of privacy laws that we have witnessed in the last few years, would you agree with the assessment that it's mainly about the fusion of the principle of transparency as opposed to the notion of privacy as it was originally understood so a reasonable expectation of the protection of personal information and now it's more about the control over the information that the government can acquire and the possibility for the users to be informed about what the government owns with regard to your personal information?

  Thank you.

>> RAMIRO ALVAREZ UGARTE: Thank you very much. One more comment, please.

>> I would like the panelists' opinion or considerations on how very low bandwidth and very low quality of service could impact human rights in the sense of especially considering the developing nation quality of mostly Latin America and Caribbean in consideration of the type of content you have access to or the stuff do online. You cannot maybe stream a protest that's taking place or if you don't have access to freeing up and TV media. You could make your own or you could enjoy a streaming services. But if your bandwidth is not ‑‑ good enough bandwidth is expensive. How could that impact your human rights?

And I also would like to make a quick point of while I will enjoy the productive, high‑level discussion on human rights online in both regions, I would like the panelists to point attention to more basic discussions on very important human rights issues and how they apply online; stuff like ‑‑ I know, for example, in Venezuela, there was a very well‑known case, it's been prohibited to talk of their own case, but also she's been prohibited to use social media at all. So she can't even tweet to their friends or post pictures to their family without risking going to jail because the government is trying to prevent her to speaking out but also limiting every other chance she has to communicate with friends and family and stuff like previous censorships that's being built in many countries, in the region, but it also applies online.

>> RAMIRO ALVAREZ UGARTE: Thank you very much for both questions; one addressed specifically and others to the panel. We have also remote participation. I would ask the panel if we could have a quick response briefly to the questions that have been raised, and then we can move to the remote participation.

So whoever. Carlos?

>> CARLOS AFFONSO: The question regarding accountability of intermediaries is precisely to make sure ‑‑ the due process of law is parented for taking down content. That's the main focus of this component of the civil rights framework. One of the paragraphs where she's there and we are fighting against it is one which makes an exception for intellectual property rights content. The big media companies requested that there is a paragraph which allows them to require content to be taken down if they argue that this is a violation of their rights or intellectual property rights without due process of law. And this is a thing that is unacceptable.

There is an intellectual property rights issue, you have to argue. And you have to have the means to prove it before you take it down. So these are the main things that are there.

Now, of course you have providers who also generate content. In which capacity are they judging them? Or are they committing any illegality regarding the current laws of the country, either online or offline? When rights or violations are offline, on online? Things in the constitution of the country, in the body of law for the country, irrespective of the media, irrespective of the communications media.

So this all is considered, taken into consideration. But what is important is ‑‑ and also the banks are pressing very strongly for this. Just referring to the host or to the internet provider responsibility for a security breach in E‑Commerce or in bank transactions. The Phishing or whatever that happens is the responsibility of the host.

  No, it's not. No. If it is, it has to be proved first. And this is the spirit of the law. It's not to allow providers to do what they want, not at all. Absolutely not. No?

>> RAMIRO ALVAREZ UGARTE: Thank you very much.

  Matthias?

>> MATTHIAS TRAINER: Thank you very much. I just want to come back to the question of the gentleman's point. Is it a human right ‑‑ as far as I understood you, a kind of security that they have a quality of service on the internet, a basic level, right. This is, of course, one of the most interesting and most crucial points that have ‑‑ or are also discussed within forums like this.

To get now an answer, to tell you yes in principle, I would say we have ‑‑ you really have to look at this question from various views. But as regards to concept of the European Convention of Human Rights, the older conception, as it was seen by the European court, the answer would have been maybe no. The answer would have been, well, states should not intervene, should give people their freedom. And if the state intervenes, then, of course, there are remedies.

The concept within the last year ‑‑ together with the right of privacy it's more than 20 years, meanwhile, but also now with Article 10, it's more and more that the state should not only refrain but really has a positive obligation to act and to really ‑‑ more and more you're finding repeatedly he really has to take care of a kind of environment. Also for people, that they can make use of it.

But this will go now very far. What does it mean? This is the question. That you have the right towards the state to go to the state and say I live in a region somewhere maybe here in Bali because I was touring around in Bali, a tourist a little bit. And when you talk to people, 50 kilometers from here or so and to young people ‑‑ I spoke to a 20‑year‑old man who was guiding me around. He was very smart. He was very open‑minded, very interesting. Also what this conference is about. Then I asked him, ok, do you have Facebook? Yeah, we can stay friends on Facebook. He said, I never have been on the internet so far. We have no internet. My parents ‑‑ neither do we have it in the village, nor can my parents afford it.

The European Union context, you know, where everything you see from a very economic side and from a well‑equipped side, this topic is discussed under the universal service. So there is the question.

  The states, for example, have the real obligation ‑‑ this was in the last case ‑‑ that everybody has access to a public telephone. As regards to internet, European Union so far, and means member states so far, are very hesitant to say we give a guarantee by the state that everybody has access to the internet.

Nonetheless, I think this is especially the crucial point. And when you look from the Convention of Human Rights, you have the right to education, you have a right to knowledge, and you have a right to non‑discrimination.

When I started my job 20 years ago, we had a court case in Strasburg, it was about the Austrian ‑‑ in this case there was one sentence which was quoted all the time, the state is the last guarantor of pluralism, which was interpreted in the way that, well, if pluralism is not guaranteed, the pluralism of the knowledge, the pluralism of information, the pluralism of maybe access, then the state has to be active.

  And if we ‑‑ I think we are already in this time that you can get the variety of opinions, only by the means of internet nowadays to have it in a non‑discriminatory way I would say really should discuss and maybe fight for a kind of minimum access obligation of state. I know this is still a long way, though it might be frustrating. But I'm very grateful that you posed this question here. And it's also one of the points and the positive obligations that have to be further discussed.

Thank you very much.

>> RAMIRO ALVAREZ UGARTE: Thank you very much for raising the issue of access.

  I'm sorry, Claudio and Luca. Yes.

>> CLAUDIO RUIZ: Just a quick point about the question here. I would like to highlight one of the most ‑‑ one of my favorite provisions. Net neutrality regulation in Chile was actually a reform of the Telecommunications Act. I think it's important around the question that was raised because the Chilean regulation used the word in Spanish which means arbitrarily. This word in the context of Chile means something very, very precise. Actually in the case of Chile, we have a very important jurisprudence in the Supreme Court about what that word exactly means because it's used in the fundamental rights regulations.

So what the Supreme Court said about what arbitrarily means, it's like pure whim at the end. So if you have any reason to do any other activity against net neutrality, actually you're not using ‑‑ using arbitrarily. So that's opened up a very wide door to block, to restrict content and stuff.

So I think it's very important to take this kind of details into account when we're talking about regulation. Because saying this or quality of services or any other wide concept can be used. And actually it is used to restrict important principles.

Thank you.

>> RAMIRO ALVAREZ UGARTE: Thank you very much. Luca, please be brief. We have a remote participation also.

>> LUCA BELLI: To the quality of service question. It is true the majority of country in the worlds have standards of service. The reply to this problem is to invest in network. It is not to prioritize, to manage traffic in discriminatory fashion. If you invest in network, you have more capacity for everyone. If you prioritize, you have more capacity for those who are able to pay and even less for those who are not able to pay. So you polarize the issue even more.

As I was saying before, also, this reflects on the diversity of media content. As Matthias was stating, the council, if you remember, have a obligation to protect media prioritization to guarantee an effective prioritization. You can check. We know there is an issue. We know that traffic should be managed in an application agnostic fashion. So not targeting specific content, not blocking the pictures you were mentioning about. And we now know that we have to solve the problem, taking into consideration not only best practice but also worst practice. Because it is useful to follow example. It is even more useful to avoid negative examples.

We have tried during the last three months to elaborate a model framework on ‑‑ to protect net neutrality, trying to transpose the ITF standardization process to policy‑making process also following the example in the elaboration.

  Tomorrow morning we will present the coalition on net neutrality with the model inside. So if you're interested to know how we have managed to elaborate an efficient solution, be tomorrow morning at 9:00 at the meeting.

>> RAMIRO ALVAREZ UGARTE: Thank you very much, Luca.

  Marie, you wanted to?

>> MARIE GEORGES: There was a question on data protection about the fact that maybe we are shifting from privacy aim to transparency business. I would say, no. Privacy in the sense of no abuse about your data when they are taken by others. No abuse, is still, of course, on the table. I could give examples. But it's true that because so many things are going on not visible, when you use your Smartphone, you don't know what's going on here. This is terrible. Well ‑‑ I think we are not enough on this question even.

So transparency, yes. More and more it has to be said to the person concerned, what is the purpose of the data processing? What data? Which person will get them? How long, even how long you are going to keep them? And this kind of transparency is a way also for you to control but also it's a preventive measure. If the data controller has to tell you something, if he lies, it will be a problem. So he has to ‑‑ it is more to be in conformity.

I would like to add something also about our moderator who asked about effectiveness. I wish all the international services, those which spread over the world, would apply the laws of where they have users. Excuse me, Google, but you know that for one year and a half in Europe you have a problem and that now you're going to get fines, very low level. You're lucky. But with the new directive you will get maybe 5% of your annual revenue. Ok.

Please, I would like to ask a question to all of us. It's strange that years before when you were talking about producing an object somewhere in the world ‑‑ a bottle, huh? Somewhere to be sold all over the world, any legal advisor will tell you take the best level of guarantees of prevention, the norms, take the best norms ‑‑ very often German ‑‑ so you can sell your product all over the world. No problem, because it will be the best level of protection. Why? About information services it is not the criteria that all the legal person tell the responsible of services? And so we are, in Europe ‑‑ and you will be also, I'm sure ‑‑ in this question, applicable law all the time, huh? And all the American companies refuse to apply the European data protection law.

Of course we know that it is because if they applied that law, they are afraid that tomorrow they will be asked to apply the tax law. That's the problem, huh?

But, listen. We are ‑‑ human rights question, huh? You cannot do what you want with the data ‑‑ there is no property on personal data. It is impossible, huh? Personal data, it's your identity in the hand of others. There is no ownership on that. It is not possible. You have them. You have to respect. If you want to do something else with your data, please ask the person if they agree or if there is a law which says you have to do, ok.

>> RAMIRO ALVAREZ UGARTE: Thank you. Thank you very much, Marie.

  I'm sorry, Carlos. I'm going to move to the remote moderation because I was asked to.

  Marie, I'm going to ask you later about effectiveness probably just on a personal basis because we have a few problems in Argentina on that.

Francisco is our remote moderator. Please, Francisco.

>> There's a question and comment from Argentina. First his question is for Carlos. How does the Brazilian net neutrality approach deal with traffic management? How is the mechanism for control and enforcement supposed to work? He comments that he has places like Chile that has net neutrality laws but sometimes issues regarding control and enforcement arises.

And a question to Claudio, that human rights perspective over cybercrime builds in Argentina. So on the definition of conduct stressing the use of ‑‑ over the conduct itself as the point of concern. Discuss the implications regarding due process and even access to information because internet usage deemed dangerous technology.

>> RAMIRO ALVAREZ UGARTE: Yes, please. Carlos, you may take the opportunity to make the comment you wanted to make before and also answer the question if you wish.

>> CARLOS AFFONSO: Very quickly, the net neutrality proposition in the civil rights framework does not talk about control. It talks about no control at all. Packets must flow freely except for technical characteristics which are obvious like streaming all the packets must go in sequence.

I don't want that, for any other region, commercial, religious, cultural, whatever you can imagine except for very strict technical standards which we enforce so that the transport of the data is optimized, they cannot be done, done by the Telco or the internet service provider. That's the point. No control at all. To the contrary.

>> RAMIRO ALVAREZ UGARTE: Thank you very much, Carlos.

Luca, please?

>> LUCA BELLI: I think one has to be extremely careful with this. Net neutrality as freedom of expression. It is not something absolute. There are also limitations. For instance, to give first to court order or to national legislations. Traffic management for tech ‑‑ for some technical reasons is essential, for instance to prevent distributed denial of service attack to prevent the proliferation of malwares. But it is also essential to give force to some court orders to implement national legislation. So there are some limits have to be defined for the respect of the rights of the others as freedom of expression.

>> RAMIRO ALVAREZ UGARTE: Thank you very much, Luca.

Carlos?

>> CARLOS AFFONSO: Just now the United States and I think Venezuela and a few other European countries are under a very heavy denial of service attack, very strong.

>> LUCA BELLI: And that should be one of the reasons that allows traffic management.

>> RAMIRO ALVAREZ UGARTE: Perfect.

  We have another comment from the remote.

>> It's ‑‑ his question was a bit misunderstood or I read back. He's talking about control over law application over the enforcement part rather than the packet or traffic management policies.

>> RAMIRO ALVAREZ UGARTE: Oh. I see. Somebody wants to take that? Otherwise, is there someone in the audience who's willing to make a few short comments? We have to be wrapping up.

Yes, please, the gentleman.

>> I would like to just make a small comment following up what was said about Luca. In respect on net neutrality, I would say the same thing when it comes to intermediary liability because it's usually discussed ‑‑ people like to say that, you know, let's limit intermediary liability as much as possible because of freedom of expression, right to trial. But there's another part of the issue, the right to effective remedy which is quite often considered to be part of the particular conflicting rights. So most of the people when they talk about takedowns, they obviously think of IP. But it's quite often concerns personality rights, infringements.

I think a good example is the recent ‑‑ the case from the European Court of Human Rights which I consider to be crap but it has one good point. And this point is that if there would be zero liability for intermediaries, this would be infringement of a right to a private life. And the reason is exactly because the effective remedies are an integral part of the right to a private life. So if you cannot enforce the right because the intermediary has no legal incentive. And now this is not advocating for endless liability, but some. Then it's also not a good idea. It's not good for society. That's my only comment.

>> RAMIRO ALVAREZ UGARTE: Thank you very much. It's a very important point.

>> Thank you very much. From the APC, a very quick comment and not for the discussion because of lack of time. But I just want to call the attention to the training Latin America to institutionalize and legalize surveillance through specific legal measures and practices. Just to put on the table the issue.

And let me just take the opportunity to thank you very much, to the speakers, for the great inputs and the participants for the debate and their reflection.

>> RAMIRO ALVAREZ UGARTE: Thank you very much. I think we should be wrapping up. I think a lot of issues have been raised and put on the table. We had discussed the laws that we're beginning to see in both regions to be developed. There is history on the data protection laws in both regions. There is a new history in the neutrality laws. In both cases the issue of passing those laws is important but also the face of implementation, the effectiveness of those laws I believe needs to be considered from the very first moment. There is a need to educate, inform, and orientate. And the question of remedy seems to be very important.

In both regions we have probably the strongest regional human rights systems. And there are similarities and differences between the standards that are developed by the different bodies of those systems. And it seems that we are putting a lot of faith in the kind of top‑down approach that may give us the human rights standards and tools to defend digital rights in both of our regions.

And finally we raised the issue of access which obviously is absolutely important, especially in an equal society such as the ones that we have mainly in Latin America.

I wanted to thank the participants very, very much for being part of this panel. Sadly we don't have any more time for discussions, but hopefully we can keep the conversation going afterwards.

Thank you very much.

[Applause]

 

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This text is being provided in a rough draft format.  Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.

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