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IGF 2018 - Day 2 - Salle X - WS388 Making National Laws Good for Internet Governance

The following are the outputs of the real-time captioning taken during the Thirteenth Annual Meeting of the Internet Governance Forum (IGF) in Paris, France, from 12 to 14 November 2018. 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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>> MODERATOR: Good morning. I am director of a Beirut based organization that advances digital rights in the middle East and north Africa. This is 388, Making National Laws Good for Internet Governance. It aims to address legislation and the impact on the evolution of the internet and multi‑stakeholder governance in particular. Given the relative newness and rapid development of the space, we have organized the session as a roundtable discussion, so we might leverage the wide-ranging expertise in the room to collectively identify the critical issues presented by trends in the development of law and jurisprudence and effects on Internet Governance and human rights in spaces. With this in mind we structured the session as follows. We'll begin framing the discussion in the context of recent legislative mapping initiatives which I will present. Then we will host three 20‑minute, sections of discussion. Each of which will focus slightly on the slightly different aspect of the issue at HAPBT. The first discussion will be led by a consultant and advocacy strategist. Where he acts as legislative follow‑up, digital rights issues. She'll talk about Brazilian experience with framework for the internet and how this translated into lawmaking in Brazil and especially enacted privacy act. As well as implications of this experience for drafting of national level legislation. And challenges involved. The next section, will be led by Lisa Vermmer, and works on human rights, and works at Dutch embassies to address violations of human rights online worldwide. Also engaged in multilateral negotiations about resolutions related to hand man rights on line and Lisa will focus her discussion on the need for mapping and monitoring national developments from an embassy perspective as well as stress increased importance of collaboration and sharing to avoid internet fragmentation. Third section, we'll look at different ways in which legislation moves across boundaries. And will be led by the director of center for studies on freedom of expression and access to information, Agustina

D etch L Campo, at the Latin American and Caribbean group. In addition, Gbenga

SESAN, will participate. If we can get remote participation to cooperate, Gayathri

Khandhadai will join us. She represented overseeing laws criminalizing on line expropriation in six countries in Asia for a special addition of the society watch called unshackling expression. I'm rounding out, our, lead discussion, is director of policy development at internet society. Which just published a new concept note called the internet and extra territorial effects of law and high-level insights on policy and law at this point. We also encourage you, strongly, to contribute in this conversation. And especially want to encourage people from the private sector to participate as we are aware we do not have a representative from the private sector on our lead discussion panel. And in each section in each of our 20-minute sections time for interventions at probably towards the end of the section. We'll Avenue collect these and, we'll, we'll, have some conversation at the end of our time together we'll have a manager of global communications policy program to lead us in the last 15 minutes for Q & A. I will keep the time as we get into discussions. Ask you to keep your intervention short and to the point.

We really hope this format, quick, rounds will keep things lively and maximize engagement and results despite the fact we are in this very, very large room. So, let's get started. So, it has been 23 years since John Perry Barlow asserted in independence of cyberspace, governments have no sovereignty in digital environment. It is clear that whatever the wish may have been among some back then, he didn't get it all right. Where we could say he got it wrong. It is no longer plausible or maybe even desirable, that governments, leave us alone. As Barlow demanded. In many cases governments have been, if not wholly welcomed at least invited into cyberspace to deal with pressing issues more mature, developing internet presence. In fact, national level legislation and national and creating new frame works. We might see the results as positive, many have done with Germany, GDPR, and frequently, however this proliferation of legislation is considered reactionary and associated with negative effect in the closing of civic space. Anti‑cybercrime laws can criminalize online speech. Raise punishments, limit encryption. Jeopardizing rights to free expression, privacy. So‑called fake news laws can target independent journalism. Arguing that much is fake and false news, as state supported propaganda warfare. And policy, corporate policies are also starting to take on legal, legal scale. So, our discussions will cite many more examples. But just, to put us in the frame. And just one of the levers of regulation, but a powerful one of course, in the best of cases such flawed legislation is crafted by people with perhaps a myopic understanding of technology. Vaguely defined terms, we are not sure what we are talking about. And provide for inadequate oversight that can lead to arbitrary or ineffective application. All is not just unintended. With the best intention it can lead to far reaching consequences. Laws prepared in one jurisdiction can be templated to another without enough discussion about whether it is first good law, and whether or not there is enough consideration for local context. In addition, many of these laws as well as their related Juris prudence are used to assert, extra territorial jurisdiction. When any court imposes a directive on any party that reshapes local internet it causes ripples on the global internet. So, we, the majority of 3.8 billion of us on internet have agreed that we need to some regulation online, I would also say that the majority of us, also continue to desire the online space Barlow invoked independent of the tyrannies any government might seek to impose on us. That's the question we are asking ‑‑ how can we develop national level legislation and Juris prudence that respects principles of rule of law and due process addressing what the Harvard calls latent ambiguities when adopting human principles and human rights laws to digital environments, rights, national legislation that addresses current challenges without the benefit of a long view or a thorough regard for the implications of the legislation? One of the first steps we need to take to assess the issues and identify ambiguities is to map what the emerging legal frameworks for digital environments look like. One of the key organizing principles of the session.

Several discussions and participants in the audience probably have begun mapping, have begun this mapping as a means of not only aggregating and making available relevant law and case law but helping people to process their meanings, compare language, applications with each other and international standards and norms and visualize the trends embedded so we can develop a deeper understanding what governance looks like in a digital world. For example, over the past two years, the overseeing of the creation of an observatory for Latin America that makes available legislation related to freedom of expression. Bruno Santos manages a site that tracks now more than 300 internet related bills in the Brazilian Congress. And leading research to map legislation that criminalizes speech. And my work, the development of global legal data initiative, cyber rights research initiative almanac, repository for more than 500 bills, laws, judgments related to digital rights. It will soon host similar data for dozens countries worldwide. Another similar initiative representative of the IGT which include, a database of digital rights legislation in Latin America, world map of encryption, seeks to make clear which is encrypting worldwide. Summary of decisions related to the fundamental rights. And GN if, global net Burke initiative. Mapping of the legal environments in 60 countries pioneered by telecom up K pains. I am sure there are many more. So, there is a reason why so many legal mapping initiatives are underway. While internet regulation comes in many forms to create an internet of trust, open, secure, embeds human rights protections in all layers. All stakeholders must know the legal ground on which they're working, what norms and laws provide footings and anchors for their work including soft law, international, regional law, national law. At present that ground is constantly shifting. At states, companies, legislators, other stakeholders, grapple with artifacts and analog codes to the digital world. Mapping what we have helps us sketch boundaries and situate landmarks. But of course, it is still very much being negotiated. We will continue that negotiation here, for the next 75 minutes or so. As we aim to develop a matrix of ideas, where we might develop national level law and other regulation that is more aligned with an internet of trust and that better anticipates the effects in a way that underscores rather than undermines multi‑stakeholder internet governments. So, to kick off the discussion, I am going to invite, Bruno, to share her experience with the Brazilian civil rights framework for the internet and how this translated into lawmaking in Brazil in the 300 bills we mentioned. And the recently enacted privacy act take it over.

>> Thank you. If I am speaking too loudly or not speaking loudly enough, please let me know. I tend to speak stew myself when I am nervous. But then, I would look to start with, mentioning no longer 300, it is 400, like, the initiative that we have been using for mapping legislative initiatives in Brazil. We have founded now over 400 bills, trying to regulate the internet in the different way. And they're all trying to become the next. So, as you are all, this framework for civil rights. Try to set the rules for users and companies and each of the stakeholders for our like, the way we perceive ourselves in, in it. And it is also very nice that Jessica mentioned how we can be reactive to the movement and trends that go around the world. It can be defined as reaction. We had cyberrelated, cybercrime related bills in Brazil in Congress. We convinced ourselves better to come up with a law that would enshrine and establish rights for the users rather than trying to compel or try to properly dress a kind of cybercrime that would be like, in, six months to a year. So that was the approach at the time. And then, it has become, kind of of a benchmark for Brazil. The way participation was welcomed. The bill was built into a collaborative kind of dressing. So, at first, just as they did, for, for, topics and then they, the whole bill. And they, also, submitted it to public so we got the feedback from the community. Ever since beginning. And it was valued in the process. Four years after Brazil enacted privacy bill or privacy rights. And as a reaction, also inspired by another trend in the world. The revelations that help us, put the bill through and approve it. Now it was the scandal. So, after the, like the whole Facebook thing happened at the beginning of the year, we, we got, it was easier to convince our Congressmen that the bill was important, and we really needed it. Other than just saying that, it was coming to, full force. And we needed to do, it for ourselves. And our privacy act kind of like built up on some mentions that had on privacy. Such as, the way that we should be keeping logs and personal data. And also, having a proper privacy and personal data legislation. That's it. I will get to like, discuss this with the other panelists in the segment. So, I don't, I get to hear a little built more from, how this, how we are welcoming, also participation, but like multi‑stakeholders into the legislative discussions. Thank you very much. Yeah, so sorry, it's just, like I would look to hear back from our other panelists if ‑‑ if the other countries they do welcome this sort of participation into lawmaking and collaborative drafting as much as ‑‑ as we did in Brazil. It's not necessarily like, if we maybe don't. But then it would be interesting to hear back from other experiences and see how we can move this forward.

>> MODERATOR: Can I ask you first, Bruna, for the development of Marco civil and the bills in Brazilian Congress, how do you think, do you see a connection between the, the ‑‑ the popularity or the ‑‑ or the public, yeah, just like the public face of the Marco Civil and the need, desire of Congressmen and women to introduce bill and are the other bills as participatory in nature is there a learning that took place there?

>> Thank you very much. For the question. I guess it is, we could say that our Congressmen and women, looking for the Marco Civil, which is the max, really internet regulation or which is the max, max internet regulation that is going to cause some, some, like noise around the community. And then ‑‑ these days with the elections in Brazil, a lot of initiatives, around the subject. We got like, up until June we had over 17 fake news related initiatives. And also ‑‑ and some, maybe, two to four they tried to do amendments to Marco Civil or try to take back some such the fights that some lost. So, I would say, yeah, this is kind of like oriented. With regard to participation, not always perfect like that. Like I can say, mentioned privacy act. Data protection as exception. The discussion was held in multi‑stakeholder tables. And, like the two ‑‑ Congressmen, responsible for this. Both in the Senate. Both in the House of Representatives. Very important to welcome participation from the sectors. So, they wouldn't have as much resistance from like, from everybody else. And it was an interesting like discussion. First, the House of Representatives, did like this ‑‑ three weeks. Around everything like, responsibilities, and, and what is sensitive data, should we welcome or not welcome into Brazilian law? And with regards to the discussion on this it was easier to bring the private sector to the, to the privacy discussion because they were already, ready to do compliance with the GCR. And interesting set to the whole thing. In the end, they ended up collaborating a lot to maximizing to the approval of the law. I've don't know if we were in another scenario if this could happen again.

>> MODERATOR: Great, thank you. Maybe this is a good time, Gbenga, to ask you, in Nigeria, it is another Marco Civil, what you are trying to do. Maybe tell the experience you have had over the last couple years.

>> Gbenga Sesan: So, I mean, the digital bill from Nigeria was, inspired by Marco Civil. In 2014, it made sense. When, we spent years asking you know, saying we didn't want this. We didn't want that. Or, so we don't want government to do this. We don't want government to do that. But we saw a document, a representative, what people wanted. So, we talked together with a few organizations, and said this would be at least, the least of the things that we want as far as digital rights are concerned in Nigeria. Came up with a list. We drafted of course the language. We had initially, a declaration. Declarations don't hatch the same weight as law. So, then what we did was translate into legalese. And then we look for a sponsor. For the bill. It took about two years. To get a sponsor for the bill because it wasn't a topic that many people were familiar with. If you live in a one tree where digital rights sounds like, an extremely complex conversation because there are other issues like, you know e-education, jobs, poverty, things like that away who would find time for personal education that they found exotic. Once we found a sponsor. What we then did was, of course, of course, before finding a sponsor was the consultations with others. To make sure it wasn't a civil society idea. It was something that had something in there. For government. In the sense that people would talk about things like not just digital rights, but digital responsibility. So those were some things in the bill. What we made sure to do was in places where responsibility was mentioned, it wasn't vague. The problem with vague provisions in laws. Taking advantage of. So, when speech came up. We clearly defined hate speech cannot be something that ‑‑ an agency of government or individual, truly decides what it is. You have to go through legal process. And then return to that. In terms of other things, we talk about the side. So, the bill, you know, after two years, was passed by one of the parliament, and end of the second year passed by the Senate. The bill has been passed, two steps to go. I was having a conversation earlier, we talked about the success of the process so long it is beginning to sound like ‑‑ beginning to lose hope. We have elections in February. We have two months before the bill gets signed by the president. If it is not signed. The process has to start all over again. I honestly hope we don't have to go through. So, where we are at, at the moment, getting ready for the bill to be transmitted. We made a case with the presidency. We think, that it will be signed. Where we are now, getting transmission. I think, the lessons we have learned. One, the fact that a civil society members, ourselves, we had to literally allow someone else the credit for great work. If we can call it great. It's important. Many times, we want something done. We stand in the way of that thing getting done. We wanted to get credit. And so, what was great. We were able to step back. And provide the support. The legislator who sponsored the bill. Won a global award for being hero of rights. That was great. And the second lesson that we learned. The process is not a success until not just the political, you know, side of it. But also, the ‑‑ the noises around the, the legal language. One of the things, why the bill hasn't been transmitted to the president is there is a clause. Legal department, national assembly considers a bit too strong. We don't know which of the clauses. A good thing that, that we ‑‑ if it is not political, because there seems to be a bit of political tension between the legislature and the executive right now. And we are going towards elections. Both are in a position. Not political that's fine. Maybe the most important lesson we learned. That the walk doesn't end with the law. The walk begins when there is a law. There are many laws that get into effect. Nothing really happens. So, one of the biggest things we are doing right now. Preparing to implement the law. The moment it gets signed. To look for examples of people who on their behalf we can seek Lee legal redress. Maybe your data is misused or there is actually internet shut down, illegal, in that, instrument of Louvre. If there is a shut down, you can seek legal redress. Begin to plan now nor what we will do in case of this. It is great we have moved somewhat from just saying we don't want this, to now saying, that, you know this is the least of what we want. And, this are the conditions. And it is not just, activist language. It is written in a language that every stakeholder understands and will, to a large extent agree with.

>> MODERATOR: I was wondering if the discussions on the panel have any other reactions to sort of this law formation process or if anybody else in the room would look to raise any issues that, that came up as a result of these ‑‑ these two similar, or, you know, connected stories? With sort of similar ‑‑ goals in mind? Yeah? Bruna.

>> Sure.

>> Jessica Dheere: Identify yourself.

>> AUDIENCE: Drafting some regulation. We have sometimes or maybe often having a problem with the harmonizing the regulation. law and regulation. Maybe it is because ‑‑ because conflict of the interest from different ministry. Because for example, if we want to ‑‑ regulate is it part of the ministry of ICT or is it part of the ministry of finance for example. If you want to create cybersecurity policy, so on. Maybe just guidance and so on. Before even become, regulation, it is again we have a problem with, between the departments of security and then Ministry of ICT for example. So, this kind of conflict sometimes is ‑‑ also, also creating a problem on how the content will be and then how the process of how the regulation can be created and also, maybe, even how the ‑‑ the law and then the ‑‑ the technology work in different state. It is something when the regulation is already produced, the technology is, already changing. And then, it is changing. And then we need to come up again with another. And so, this kind of, ongoing procession is like ‑‑ evil circle for me. I don't know how do we do it? Maybe in European where you have harmonized regulation it might be this kind of thing can be reduced. I don't know. Maybe difficult sometimes. Thank you.

>> Jessica Dheere: All right, just a quick intervention on how the ‑‑ the making and enacting the law is just the beginning of the, very beginning of the road. I remembered Brazilian, our experience with it, which I'm any sure everybody heard about. How this was, this was turned in Brazil to say that, Marco Civil was a law responsible for censorship which wasn't, is it ‑‑

No. So, this is, this wasn't the idea. Then they took this experience from, judges who sat, who, who sat like without knowing what the actual law was about. Second with the free interpretation of the thing. And we don't do like, I don't think Brazil has been doing a good job harmonizing the comprehension of the bills around the internet. Quick note on this, it was due to the car wash operation. Some information off the people. People involved in the operation were required. And then WhatsApp did not give the information based on the encryption of the platform. So, this was a Marco Civil indeed.

>> Jessica Dheere: Yeah. Please. Thank you for your question.

>> AUDIENCE: I've want to respond maybe it is easier, with a more harmonized system. True the EU is very, very institutionalized. The GDPR took from 2012 to 2016 until final acceptance, 2018 to come into force. A massive process of lobbying and changing and ‑‑ and adjustments and iterations. The EU is challenge as well. I think in every part of the world it has its own dynamic. What I wanted to stress ‑‑

I hear myself? Yes. The importance of transparency. Cannot be underestimated. I think for governments, massive responsibility to be transparent. Where people can reach you and talk and give their input.

>> Jessica Dheere: Thank you, Lisa. Anything from Gaya. Not right now?

>> Jessica Dheere: To quickly summarize where we are at the moment. Then we will start the next segment. Unless someone would like to contribute in this segment. Is this idea of ‑‑ one of the questions arises for me is ‑‑ should we be looking at a model where we are adopting a rights affirmation bill? We need to look at Harmonization models and how different types of Harmonization processes colleague from in TPHAEURB yeah mentioned and transparency and once the law is passed is really only the beginning. So, with that if I've ‑‑ sorry, assuming you would like to say something? Just to add some thought. Legislation, on bills out of Latin America. One of the common things that we see, legislation, there is no order. To legislation. Pretty much a lot of disorder. Pretty much like jurisprudence. The reactions that they're having. Are very ‑‑ responsive to social mood. In a lot of instances. So, organizing, legislation, with a strategy does not necessarily seem to be the way the governments are going. More reacting to certain, certain, very concrete problems. Their societies are facing, reacting to social pressure. Maybe something we should consider when we are dealing with what we want in the legislation. And what impact do we want coming out of that legislation.

>> AUDIENCE: What I can ask, in the situation, facing, transition periods or, there is a, real change in terms of how they will approach the governance structures and the government proposals in all senses including civil participation, processes. I think we have to take into account and need to build capacity and what it means to legislate from a rights-based approach. I am saying this because, let me just use the example of the development of the proposal around the protection. It is one of the countries that, it is, it is, have left behind this issue. On if the agenda.

And it is starting at the moment the process. But the political dynamics are not allowing civil society and other governmental stakeholders to engage in the, different parts of the process. We have realized there is an issue of lack of awareness about scope and implication, human rights implications of the issue per say. Also lack of willingness to open the process at different steps and phases. Because of the power dynamics and interests that exist inside different government branches. I think dynamics we have off to deal with and take into account when, actually, trying to influence and engage the processes.

>> Jessica Dheere: Fantastic. Thank you. At this point, I am going to be strict about our 20-minute segments. I have gone over of a little bit. I want to pass over to Lisa, who is going to introduce the next segment. Din get a comment in this segment. Figure out how to frame it according to the next segment.

>> Lisa Vermeer: Thank you, Jessica. Thank you, Jessica for possibility to speak. Introduce, from the perspective of the Dutch government. Then ask, at least two questions. That I look forward to hearing your responses to. Over the last years I had conversations with my colleague diplomats working on human rights. It made me convinced it is essential and more essential to monitor legal development, national legal development and regional. With regards to digital rights. And there is a wide range of legal developments that impact on the rights. As Jessica mentioned in introduction. Varies from cybersecurity and crime to informational security to ID. T. To fake news, disinformation. Every aspect can have an impact. That, that creates the need for overarching vision on what is happening and the need to collaborate between governments and, and, society to track developments. From a government perspective there is various reasons why we monitor legal developments. I would like to give you responses, examples. For example, very important aspect is compliance. We have to comply when you are ‑‑ based in a country. Sometimes when there are big changes recently it for example in Egypt. New laws. Or Russia, a massive package. We really look at the legal developments to see whether activities are in line, or where we are, pursuing the risky activities from a compliance point of view. That means, creates need for experiences at diplomatic level. There is collaboration with EU countries to advocate for changes, draft, laws, most recent example, cybersecurity Bill. Which actually proved to be a difficult process. But we really tried to push back against the law that was ‑‑ proposed. Together with the EU member states. Another example Indonesia, consultations with Indonesian lawmakers. Request from them to talk about disinformation and fake news law. Or policy approaches to, learn from our approach. Which is welcome you.

Can share experiences. Try to advocate for a rights-based approach. We collaborate with ICNL, or monitoring legal developments with for example, and, even, and try to, try to amplify the voices. So, let's ‑‑ it's, like I just said. Increase importance to map and share knowledge about this. One of the trends that can be pushed back against, wife it do that increasingly is the ‑‑ the copycats effect of laws. When one country creates a law in a field which is very, which is rather new, touching upon digital issues. Then many other governments take over the law. There is copycat activity can be seen in a good sense, like if there are good laws. They're there to build upon. Those can be copied by other countries. This is something we find very important. Though the Netherlands is not perfect. I'm happy I can pitch my government as one of partners to advocates for great law and to learn and build and share knowledge together with all actors. That is an introduction. I would like to ask two particular questions. Who is willing to reflect on the statement that ‑‑ national level laws exacerbate fragmentation of the internet? And share experiences with how to, how to correct it and fight back. Other focused on private sector actors not in the room, how do you build your strategies around developments. From compliance or liability point of view or other reasons to. To engage in lawmaking processes? That's it for now. Anyone want to respond. Maybe someone from the panel to start it off. Kick off.

>> AUDIENCE: Good morning, everybody. I am from a Latin American organization, one motioned by Jessica. We have been doing through mapping of the Latin American legislation. I think, I believe the reason why we have this repository is because I think it is particularly relevant for the work that we do. In understanding how the weight of a good idea or bad idea. Around our region. In terms of provide like more accurate feedback to go. Trying to point out our local government what are the issues. And also because the it is a good way to find a ‑‑

Connect the local development at the level. I value a lot the work that some governments does. I want to point it out. At the national level. Available to against the local populations and the national framework. Talking to the UBR processes. I think for example the kind of tool it will be very useful. Move the discussion to general framework of human rights. We say the rights are not only the things that the same human rights. But they're the space. In the conversation when it comes to the way in which diplomatic relationship are conducted, how, how the countries measured.

Not always these rights are in packet. These repository are very useful in terms of this, defining of it, the strategy of the work we are trying to do. And leverage what support we find in the international community. Aligned with the protection of these rights.

>> AUDIENCE: Thank you so much. Very, very good to hear. Welcome. Very good addition to the link between national developments and international multilateral stakeholder debates.

>> Lisa Vermeer: Yeah, human rights. Repositories can be useful. I see some faces from multilateral organizations in the room. Maybe there is someone who would like to respond on how this could help their work.

>> Jessica Dheere: If not at the moment, Gaya would look to join us from her remote position.

>> Gayatri Khandhadai: Sorry I couldn't be there today. I wanted to make a quick intervention talking about the laws that impact digital rights. While we are looking at specific laws, what we should also bear in mind it is not always internet specific legislation that impacts digital rights. If you look at you see offline laws are applied either separately or in tandem with ICP laws, you see the penal code and, broadcasting, telegrammed, publishing related laws that are also used. We track the law, themselves, also important to see how off‑line laws are used. Sometimes used along by city laws. In relation to the comment that Jessica made. There is a caution to bear in mind. At the national level. Repeatedly affirmed that rights offline apply to online spaces as well. That is not necessarily the, accepted norm. Especially in the global south. Also, when you are looking at the laws, they're focusing on international gap. Important to look at some of the good examples of national constitutional guarantees that we have, which are, not being met. The Indian constitution allows for some freedoms.

>> Jessica Dheere: We'll give her a moment to get back on line. And then, yeah. I just wanted to pick up on what Gaya was saying. Another thing that, the observatory that we have built, is not necessarily on digital legislation. But for the expression, legislation. And we looked at legislation and enacted through a period. Of 20 years. And we fried to see how bills that are being introduced to ‑‑ and we tried how to see how bills that are being introduced to regulate human rights. Impacting positively or negative low the rights base line that we have. I think that is a really important thing to bear in mind. There is a lot in Latin America on freedom of expression. We have come a long way, in speech, in, in guaranteeing access to information, in, in, a number of different areas. And one of the things that we were trying to, to, monitor, through the region is how is the ‑‑ how is the regulation of the internet affecting or building on existing guarantees. So, I feel that part is ‑‑ is really important not to, not to focus only on digital legislation. But how other legislation that impacts the digital sphere or can contribute to or build on, it is also being developed and, construed.

>> Jessica Dheere: Yes, please.

>> Lisa Vermeer: To briefly inform about a wealth of information for better lawmaking that is available for all of us here. No matter in what part of the world you are. I am from the council of Europe. So, we are a regional intergovernmental organization. We work in all these areas. We do soft law. So, all of our recommendations are actually blue prints or models and freely available on the internet. We have conventions in the areas of cybercrimes, Budapest convention, an open convention. And the same for our new data protection convention. just equipped to be fit for the digital world. If you have specific area, need for lawmaking. These tools are available. You can join in officially capacity. All the others you can use, you can turn to us for specific information. I am taking in your experience.

>> Jessica Dheere: Gama is back on the line. Finish your thought, Gaya.

>> Gayatri Khandhadai: To wrap up. At the convention, came up, because, put up some documents on human rights based approach off to policies I think we can discuss later in the last segment, perhaps. I just wanted to point out a couple of examples for us to bear in mind. That was context too late. One of the problems which we kind of did research on, and were able to pinpoint for the six country, regional research. Being treated differently from the offline space. One example ‑‑

The fact that crimes are also called crimes online. Penalized at a greater rate. For instance, in Bangladesh, what you say online could land you in prison for 14 years. If you said the same thing offline it would have gotten you in prison for three years. One example. Not just the level of penalization. That's one aspect for us to remember. But also, I think what would be helpful is to look at some of the ‑‑ outcomes or examples in the last couple of years that could inspire some sort of opening up. In the last couple years we had -- yet, judgments have been fantastic from the Indian court. Really important. To dealing with the digital rights. One particular project which unfortunately, the constitutionality which was sort of the other project. Dealing with defending pines was able to highlight with the digital rights. Similarly, in Pakistan, the crimes act, became ‑‑ as the law, problematic. There was push back. Public outcry, and the build‑up which you know, and from Malaysia. Of the anti‑fake news law. The common factor between all of the ‑‑ development. Sure, there is more. Pointing out three from Asia. The public outcry and publish push back. The place where we are perhaps falling short when it comes to the public outcry is also parts the full year of civil society. Make this relatable. When you get into discussion it becomes alienating. That's what happened for a civil society to how to make it reliable. Because in jurisdictions in Asia for instance, it is really hard to change laws once they're in place. The laws relating to the digital, reactionary at this point. They're doling out laws on a weekly basis. Quite hard to change that.

>> Jessica Dheere: Thank you, guys, that was fantastic. Yes, another intervention. Thank you.

>> AUDIENCE: Maybe a question for a person who, people who ‑‑ study law, practice law. Including lawmakers. Do we need to change the way, the way we practice the law, it is, more they study? They don't know how low in technology. So, they, then when they start study, what I see. It's different when we study other type of law. We need to actually be more disciplinary in the first place. Learn the business, technology. Social impact. Then apply the ‑‑ traditional law. How we survive the laws, survive with the ‑‑ improvement of the technology, the technology, innovation. It is by using the metaphor, for example, when we enter other ‑‑ house, we can make technology the same like. When ‑‑ when in the work, when weep ‑‑ use, we use accessing to ‑‑ enter, E‑mail address other people. But this kind of thing maybe not really common. For those who never really learn it. I don't TKPHOEP at what stage we should, put this, put this, because this is important. And then this will make the process ‑‑ from the content, or from other way, so much, difficult for human. Then we can just not, rely on it later. I don't know. It is just maybe challenging questions.

>> Jessica Dheere: One more comment. Then we will wrap this segment up. Yes. please, go ahead. I think we have to take into consideration. Laws. Then back to national laws. And the protection of some group. For example. national laws may be using the information or technology. Maybe put this group in the rest. And, we have to review this issue. And talk about that impact of national organization on its rights. Back to you.

>> Jessica Dheere: Thank you. Very important. At this point. Since we are getting short on time. Of a little bit. Would you like to lead us in the last section, please?

>> I was asked to delve into it. So, what I would like to do is, I will structure this session in three main questions. One is, is there a clear dialogue between core decisions and legislation? Second one is, what is the impact of core decisions, and the legislation that arises from that? On global or local governance? Third one, what are common challenges we are seeing in the introduction between core decisions and ‑‑ and the elective process. The observatory are looking at eight countries, Mexico, Argentina, Guatemala, Paraguay, how many did I count? Chile, Colombia, I think those are the eight. So, in responding to the first question, what we have noticed is that ‑‑ there is not necessarily in every case a clear dialogue between core decisions and, legislation. Depends on the country and issue, a lot of times. So, depends a lot on the country. And that, not every country has a lot of ‑‑ legislative action. There is a recent report covered a number of countries across the globe. Compared legislative activity. In some countries we have over 400 bills presented each year. In others we have 7 that is hey huge difference. The other difference that we saw was some issues that we, that we saw were more prone to litigation. Prior to legislation. Others we saw more prone to legislation, prior to jurisprudence. intermediary reliability. The latter, there is some legislation, but barely many decisions is net neutrality. For example. across the region. What are the impacts of core decisions what opportunities and challenges in the dialogue, jurisprudence, core decisions and legislation. I want to take two examples. One of them particularly relevant to the region. Across the globe, that had an impact. The case that we all know about. In Latin America there was barely any legislation at all that could be used in the same sense as the European production law or directive was used. A number of dive sixes in Mexico, Peru, Colombia, Chile. Felt the need. Courts felt the need to distinguish their cases or interpretations from the case. Even though it was not a regional case. Even though it was not based on, on any legislation that would, was, of our specific region. So, what you see are a lot of core decisions that are citing to the case, either to say we agree with or disagree with. It had an impact. After 2014, there were numerous bills introduced in the different Congresses in the region. Proposing legislation that resembled the right to be forgotten. And, and, trying to replicate the standard that the decision was proposing. Not many of the legislations, in fact, I don't, I can recall only one that resembles it. Not many were fruitful. Not many laws have been passioned. Still core decisions are moving that discussion. Discussion in Congress, for the most part, an ongoing discussion. There are no decisions yet on the legislative front. The other case that I want to bring is a case from my home country, Argentina, it is ‑‑ the intermediary reliability issue. The issue has been on the table in Argentina for almost a decade. It has been under debate in the, in the ‑‑ in Congress. And there is a 2014 decision that where the supreme court actually provides a pretty interesting standard. Providing court review and the standard that we have in the InterAmerican system. What's interesting about that case is that two different bills were introduced right after the decision. The two bills were heavily debated in Congress for a number of years. Not months, not days. Years. We finally had, one single project that moved forward and that got sanctioned. When it wasn't adopted last week it was dropped. Basically. So, what happened there is interesting. Because we have two supreme court decisions, a standard, multiple lower court decisions on the issue. And we can't see that translate into legislation. So, using those two examples, I have identified one pretty clear challenge. From the intermediary reliability law. And that experience. I think one of the main challenges is that, technology and the technological scenery changes a lot faster than legislative processes move along. What you were previously saying ‑‑ about the GDBR being a discussion that started in 2012, 2013, it took a number of years to move forward, there are areas that remain steady a long time. There are other areas that change a lot. How we see intermediary reliability changed a lot. In the last, two, three years. So that ‑‑ I have identified as one of the ‑‑ of the challenges. Another challenge is ‑‑ pretty much similar to that, copy cats challenge that you were identifying. Decisions are traveling across borders as legislation is pretty much traveling across borders. Bills are traveling across borders. There is an issue in translating circumstances, translating context, and translating regulatory frameworks. I feel we have ‑‑ we have an issue. Our Congresses are having a hard time doing that ‑‑ that specific translation. With that I will leave you with three questions I tried to answer. I also may have three questions that will guide the conversation along. One of them is ‑‑ do you feel there are issues prone to litigation than are to regulation or more prone to legislation, than they are to, to, to court decisions or litigation. Would we as a community like to see court decisions or legislation in certain issues? So with that. Thank you again.

>> Jessica Dheere: Thank you. Before, before maybe we open the floor for to answer some of your questions, I also would like to invite, I won't say your name now, to talk about extra territory, the copycatting, templating of law and in light of the recent payer that I saw, what are some things you are seeing what should we be looking out for?

>> AUDIENCE: Thanks. Hello, everyone. I am not sure how familiar you are with the nonprofit organization and we are out there essentially to protect the internet in a now the shell. The reason I am mentioning this is because so far the conversation has been based on the right approach, evaluation of, of, this legislation. That is happening all around the world. However, we are looking at regulation in, a little bit of a ‑‑ from a different angle. That angle is the internet. Whether those unintended consequences that perhaps can be created by regulating a global medium like it is the internet. How familiar are policymakers and state actors and how conscious they are about this potential impact that it can create on the internet? . Our starting point is that regulation is not new. Regulation has been part of the internet since its commercialization. There are some differences. However, between then and now. The main difference is that as what we were seeing a lot of regulation, technology neutral, essentially, it was regulation that was not favoring or mandating any specific type of technology. In the current climate we see some sort of shift where we see emerging, emergence of some sort of technology mandated right there. Regulation. And the second one is that ‑‑ I think this has been consistent throughout this conversation. That everyone is out there regulating. There is so much regulation that is happening on the internet that inevitably some of that will be conflicting, some of that will be comparable, but a lot of that will have some sort of ‑‑ unintended consequences. One of the consequences is of course this idea of extra‑territory, extraterritoriality. Extra land beyond borders. It is the prerogative of governments to regulate. A lot of regulation is good. It is even necessary. Some of the regulation can be harmful. As we have tendency to say it can even break the internet. The internet connects people because it is open. It is distributed. It is interoperable. Each network that connects to the internet then becomes part of that, that internet. And it is the sum of those networks that ‑‑ that make the internet richer, more reliable, and ‑‑ and, more valuable. So, what is important ‑B and the reason that I am saying all of this is that this thing is happening not because there is some sort of a contract or someone is imposing that on those networks, but out of necessity. We have to be careful applying geographically based regulation to a medium that needs the interconnections between the networks. The first thing. The second thing is resiliency of the internets. We say that the internet is resilient because of the different nodes, the dip verse team of the different nodes that exist all around the world. So, you can imagine that when we have national regulation, when we are trying to push a certain national regulation on the global internet, or, push the internet to fade into that national regulation, we sabotage this diversity that makes the internet so resilient. So, starting from there. We did some sort of analysis between the characteristics that exist and are part of the internet with some of the characteristics that can be seen when weep apply extraterritorial laws. To check what impact the laws could have had on the architecture of the internet. So, I don't want to bore you and take you through all of the characteristics one by one. Essentially the internet is built on some sort of properties. The engineers are calling him unsuccessful invariants. But they refer to those things that do not change. That they have made the internet what it is today. The internet is what it is because unfortunate the things. It includes global reach, accessibility. That you don't need to ask for permission, connect to the existing networks. The idea of no favorites. The idea that the internet is for general purpose doesn't fit within a purpose. As well as, the technology of the internet is built and based on reusable building blocks. Building blocks on top of one another.

We are not replacing them. We are just adding. Blocks. So, in trying to, to see some of the characteristics of the application of extraterritorial jurisdiction there is inconsistency that can be created. Incompatibility that can be created. There can be a race out there for power grabs. Whoever goes out first, regulates, can impose their own laws. Globally. Et cetera. what those things are actually doing to the network. Some of the things that they are doing to the network and we actually see some of those things because of the GDPR are the clear ones are fragmentation and creation of digital divides. I can tell you that ‑‑ in Europe, there are some web sites that cannot be resolved simply because those companies made the very conscious decision not to comply with the GDPR. So, when you are trying for example from Europe to access, the tribunal, you cannot access it because we decided not to follow the GDPR rules. So, the idea of fragmentation and creating digital divide where people in Europe do not necessarily, who cannot necessarily access the global internet is a reality. Another reality is ‑‑ how vertically integrated solutions are being created unintentionally again through the regulations. I think that somebody mentioned it. I can't recall who. We are in the business of prescribing regulations with a certain mind set. We are thinking of certain actors and thinking activities of actors when we are regulating. It is probably those actors that have ability to reply and implement regulations. We are pushing out all those small and new players that can come and challenge through the nonpermanent favorites idea. Or through the permission list innovation. Currently, preliminary starting in Europe because of the GDPR, small and medium sized could not comply with the cost. We see consolidation happening which is one of the things. The whole regulation ironically is trying to avoid. So, last but not least, there is a certain degree, or we can't see, a certain degree of international tension. Also. Arising. Some of these laws are being ‑‑ pushed in a top‑down manner. And given the kind of political shift which is intense. The way the actors are if you've want, engaging into the conversations and are able to, to, and they're positioning themselves. We might find in the position of having a regulatory raise where everybody is out there trying true become and win that race. I will just leave this brief intervention with just the question, well if you want, just going to put it out there, a possible scenario. Unless we really start thinking very clearly of how weave can dupe regulation that manages into the only to address the problems we want to address ought also protect the architecture of the internet. We might find ourselves in the positions. Big dilemma. That dilemma. Which am I going to follow. Going to follow our, Latin America, China's? Will I have a global internet if this is to happen. Thank you.

>> Jessica Dheere: Thank you. Wonderful. So, we have about 10 minutes left. Would you like to take us out and maybe take a couple questions and, and, wrap us up, please?

>> AUDIENCE: There is going to be time to underscore what the main points were. Perhaps just to close the conversation, I think, there are some lessons and learning that have been shared here. In relation to the various aspects that the different pan listed, and participants pointed out. I think it can be good and the challenges presented. Could be useful to have a brief round of discussion. What we should be thinking about when developing legislation. So, what are the next steps? Perhaps in the line of what Augustina was saying as well. What do we want to see from a perspective? Avoiding some of the dismakes. Responding to some of the challenges mentioned here. And some closing marks of the panelists and interventions from the floor. In that line.

>> AUDIENCE: Just to quickly say, I know the word regulation is going to be used multiple times today and also tomorrow. And many other conversations. It's that regulation originally was not intended to be about control. Regulation is creating standards. But, what we are seeing now is a trend of governments. Thinking of regulation in terms of control. That is dangerous. When you've think of regulation in terms of control. You've will get a backlash. People will reaction. Then weep have the dance back and forth between government. And then people will react. We need to be more conscious away, think and control. In many, many countries. There are governments that think opposition aces bout gifting government away from their pants. But we need to start moving to talk about standards and not just, in terms of that. I know we talk a lot about regulation, regulation.

And temptation for you to get so disconnected from it. Just say, you know what, no off to regulation. The original mean for regulation is about standards. Just, by people wanted controlled.

>> AUDIENCE: I agree with the regulations me about standards. Especially if we consider, that each country has its own, intricacies. It's hard to ‑‑ what would be the standard. Participation is very important.

[audio drop]

>> It's the process in which the law is enacted, equally important. That's probably the contribution towards.

>> Jessica Dheere: Great, thank you. I was thinking, we haven't spoken much about the relationship between, companies. And, governments. In this conversation. And how that is affecting the way, laws are being applied. And implemented. For out I know we are at time. Would you like to make a comment? it seems like the situation where proactive. Passed, quickly. In the wake of whether a terrorist act. That causes politicians to have off to act. We have to get this right the first time around. Look forward to ideas. We are at time. Thanks for your participation. And, and ‑‑ yeah. Enjoy your lunch. 

 

 

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