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IGF 2019 – Day 3 – Raum II – WS #160 Rule of Law as a key concept in the digital ecosystem - RAW

The following are the outputs of the real-time captioning taken during the Fourteenth Annual Meeting of the Internet Governance Forum (IGF) in Berlin, Germany, from 25 to 29 November 2019. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record. 

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>> GUILHERME CANELA GODOI:  So good afternoon, everyone.  Thank you for being here in one of the last sessions of the day, but I am sure as you're going to see it, it's a very interesting and perhaps even unique session considering the style of the internet governance forums.  It's not very common to find judges around.  And others judicial operators.  And in this session, you will have the privilege to talk with four of them from four different regions.  So in my far right, you have Adlin, who is a lawyer specialize in internet technologies from Malaysia.  She will offer the perspective.  I have the privilege to present judge Darian.  But in his past life, very much involved with civil society all over the world on freedom of expression and access to information issues.  Judge, thank you very much for your presence.

Here I have my friend Edward Asante.  She is currently the president of human rights court in West Africa and we have with us judge Andre Andrade.  He is a judge in the State in Brazil.  So we will be able to have an experience from Latin America, from Africa, Europe, Asia in this very interesting issue of how to connect the challenges of rule of law with the ecosystem of the digital world.  And we intentionally used the world ecosystem in defining the title of this session because we do believe it's not one single issue.  It's a variety of issues that are related to the work of judicial operators.  Either they are judge, prosecutors, lawyers, public lawyer, private lawyers, and that is the aim of this one hour and 30 minutes that we have to discuss with all of you in this room.

So right after this session, we will move like this, we will start with introductory remarks from my dear colleague from our headquarters in Paris.  And then we will have presentations of our four special guests.  And then I have the privilege to count with the presence of three core organizers of this session.  My dear friend Sebastian, he is the regional director for Latin America in the Caribbean.  My dear friend from bystanders

>> Isiah:  , Monica from Facebook who is also offering the perspective of the private sector this.

And then my dear friend Agustina, so that is all.

>> Thank you for this introduction.  Chief justice, dear justice, ladies and gentlemen, dear members of the IGF family.  It's a great pleasure to co‑organize this highly relevant session for the complex puzzle of protecting and promoting human rights in the digital environment.  Over the past 70 year, the universal declaration of human rights has stood the time and demonstrated of the values of freedom, equality, justice, and human dignity.

These are the very values that must guide us in our response to the numerous challenges which arise in times of an increasingly universal internet.  In a multistakeholder ecosystem, we should acknowledge that a particular group of stakeholders is a central piece of the puzzle for guaranteeing the rule of law.

Judicial operators, judges, prosecutors, lawyers, where are and will be more and more involved in the decision‑making process of protecting digital rights and solving inevitable disputes that take place in the digital arena.

That's why it is a privilege to have two magistrates from the international courts.  One from the appeals court, lawyer civil society organization, and private sector representatives in this workshop..  The dialogue we will have here today is one that must continue in the public sphere, particularly relevant to better understand the challenges of the national, regional, and international systems in dealing with the growing number of cases related to the internet ecosystem.

It is safe to say that at this point in time, we already have a jurisprudence underlying everywhere with how everyone is dealing with internet cases.  But are the decisions taken in line with freedom of expression and privacy?  Are the key principles to guarantee rights‑based open, accessible, and multi‑stakeholder governed internet being upheld by the Courts?  If not, what are the challenges involved in getting better decisions and I mean with better here in line with the international law already endorsed by the United Nations member states.

Dialogues like the one that is about to start is one way of addressing these questions.  We should stimulate them and guarantee that they are held on a more permanent basis.  I would like to start this afternoon's workshop with good news.  Judges, prosecutors, and other judicial operators are very much interested in these subjects.  Aligns with many partners has started the global initiative to foster the capacity‑building of judicial operators on freedom of expression, access to information, and safety of journalist issues with a special focus on freedom of expression and privacy online.

In Latin America alone, where the program started about six years ago, 13,000 judicial operators are already involved with the training opportunities offers.  These results tell us less about merits and the one of what who has been leading the initiative but much more about the demand if the operators everywhere to engage with fundamental debates.  I do hope and trust that your discussion today will contribute to generate fuel to keep this flame burning.  And I see a very full room so, there's great interest in this particular sessions.

And I thank all of you for joining and the panelists, of course.  Looking forward to the discussion.

>> GUILHERME CANELA GODOI:  Thank you so much for the introduction.  And thank you for finishing with this good news that judicial operators are interested in this issue.  So we are a step ahead.  We don't need to convince them that those questions are important.  And I would like to acknowledge the presence of the special of the inter‑American system here because the programming Latin America is very much developed in straight partnership with his office.  And the judicial operators in Latin America are very much engaging with the training, actually demanding more.  So thing is a very important initial setup for us.

So I will start with judge Andre Andrade.  As I said he is in Portuguese which is a title for a judge that is a member of the appeals court.  He will speak first because he has an important issue that came up suddenly and he needed to make his flight earlier than initially planned.  So unfortunately, some point he will need to leave us because he needs to be in Rio tomorrow morning at 8:00 a.m.  So it's we thank you so much for not canceling your presence.  And being with us here today.  So judge, you have 10 minutes.

>> ANDRE GUSTAVO CORREA DE ANDRADE:  Does it appear?  My presentation?  I don't know.  It's a bad start.

>> GUILHERME CANELA GODOI:  We need the presentation.

>> ANDRE GUSTAVO CORREA DE ANDRADE:  Yeah.

>> GUILHERME CANELA GODOI:  Perhaps we did something.

>> ANDRE GUSTAVO CORREA DE ANDRADE:  Okay, here we are again.  Okay.  Thank you for having me here.  It's a big pleasure.  It's an honor to participate in this event.  Especially because it's an event that gather people for different backgrounds.  So for a judge, it's especially interesting to learn and to share the experience about internet perspective and to understand the perspective of private sector, of Government, and so for me, it's really, really important to be here.

So I would like to talk about, of course, internet.  This is our main goal.  But we cannot talk about internet without talking about freedom of expression.  I think these are connected topics, connected subjects.

Brazil constitution, it's from 1988.  A provision of freedom of expression in a very strong way.  We can read the article 5.  Saying manifestation of thought is free but anonymity is forbidden.  This is the limitation of Brazilian constitution.  And expression of intellectual, artist, scientific, and communication activity is free, independent of any censorship or license.  As we can see, we have a strong statement about freedom of expression.

And article 220, reinforce this idea.  Saying that expression of thought, creation, speech, and information through whatever form, process or vehicle, shall not be subject to any restrictions, observing the provisions of the constitution.  So as we can see in the constitution, we have a strong freedom of, strong principle.

What is the scope of freedom of speech?  We talk about freedom of speech but sometimes not thinking about it.  Why is this so important for us?  In short, at first, promotes the search for truth.  We cannot develop as individuals, as society, and find the truth if we don't have freedom of speech.  It is essentially for self‑Government.  So freedom of speech for me, it's the main pillar of the democracy.  It's essentially for each of us to have freedom of expression as a way of self‑Government.

And it's important for checking Government power.  So it's related to freedom of press as a watchdog.  It's important to have this freedom in order to check Government power.

And finally, promotes individual autonomy.  We cannot fulfill our desires, our dreams without freedom of speech.  We cannot develop our talents, our gifts without this principle.

So freedom of speech is very important.  But it's not limited principle.  There are limitations.  And these limitations, essentially are in the personality rights because we have some inalienable rights in the cost Tuesday like privacy, like honor, et cetera.  So we have to balance freedom of expression with the personality rights.

In Brazil, we have what we can call the internet Bill Of Rights.  It's a very modern law.  We are very proud of this law because it essentially this law guarantees the providers, the freedom that they need in order to develop, you know, social media, et cetera.  And knowing that they cannot be held responsible or liable for no reason.  For example, we have this article second, talking about the principles of this law.  So recognition of the global scale of the network, human rights and the development and exercise of civic awareness through digital media, openness and collaboration, free enterprise, free competition and consumer protection.  And finally, southern purpose of the network.

This article 19, it's the, in my opinion, the most important article we have in this law because it says that the provider can be held responsible only if there is an action, there is a file against the provider.  And we needs to be notified that some content of the internet is in inappropriate, it's illegal.  And then he needs to take it out.  Take it off.  If he doesn't do that, then he can be held responsible.  Only this.  So it's not possible before, hold responsible provider.

So talking about the limitations of freedom of expression on internet.  One of the most outrageous things that we can find on internet is the violation of privacy.  For example, nude photo leaks.  I'm showing here two different artists.  One is an American Jennifer Lawrence and the other one is a Brazilian actress, Carolina Dieckman.  Both of them had pictures naked, that they are sharing with maybe a partner, a boyfriend, et cetera.  So they were put on internet.  So it's a very, very big issue.  In Brazil, this issue was so big that we create a specific law that we baptized, named Carolina Dieckman law because of this problem with this actress.  We decided to create this law to reinforce, you know, the privacy to punish very hard hackers or people disseminating this kind of picture.

Another problem, we find on internet is violation of privacy is revenge pornography.  So we have concept of revenge pornography, the sharing of private photos of another person without their consent and with the purpose of inflicting emotional pain or embarrassment.  It's a very bad thing, especially because it mainly affects women.  But not only, of course, men can of course share some nude photos and be victim of this.

And it's very hard to remove all the contents from internet.  Once in internet, it's forever.  It's practically impossible to remove everything.  And another thing, victims usually feel fear and shame.  So most of them don't report the case to the police.

Fake news is another big issue in Brazil.  We are about to create a law, we are discussing a law about fake news.

Cyber bullying, it's especially painful for me to say that, but Brazil is the second country in the world with most cyber bullying cases.  The first one, we can imagine who is this.  And for me, the main topic about the limits of freedom of speech is hate speech.  We can be conception add hay red and discrimination of groups on basis of race, color, ethnicity, gender identity, disability, religious beliefs or other.  In Brazil, hate speech is regulated in law.  It's article 20 of Brazilian law, number 7716 from 89.  The punishes the induction and incite.  To discrimination or prejudice of race, color, ethnicity or national origin.

The main thing about hate speech, I listed some of the problems.  Where can the limbs be drawn?  Because when we talk about hate speech, we are talking about different kinds of manifestation, not necessarily where the hater tries to incite violence.  It can be for example a racist joke.  But there are big difference between this these situations.

What group should be protected?  Ban hate speech without clear danger?  Incite.  Is required so we have questions about it.  I know I don't have enough time to talk about the cases.  But the thing is, Brazilian courts are not clear about hate speech ban.  We have two cases, very important case from Supreme Court.  One of them is Ellwanger case.  It's about a publisher that was convicted for selling and distributing anti-Semitic and holocaust books.  The Supreme Court upheld the decision.

And just to finish my presentation, we have this case, I'm not proud of this, this is our actual president.  But when he was member of the parliament, he delivered speech talking about the heirs of ancient slaves.  They have a protected areas.  So they are talking about this people.  And he compared these people as animals.  Because he said, I've been to Guilombola.  The skin is African decent dent.  They don't do anything.  They don't even serve as procreators anymore.  In this case, he was not convicted.  Because they considered that speech was a political speech.  Very inappropriate.  But a political speech.  In the former case, the publisher was convicted.

So we don't have a clear standards about what is and what is not hate speech.

So in my opinion, before thinking about banning hate speech, we have to think about the power of counter speech.  Instead of limiting the speech, we have to fight hate speech with more speech.  So for me, the solution is not impeding or stopping the speech.  But giving more speech.  And open and ways for the group or the members of the group to counter speech.

And to finish my presentation, I think we need in Brazil specifically a culture of freedom of speech.  We need this.  We are a young democracy.  We have just 30 years of democracy.  And we need to create standards to apply in cases related to speech because otherwise, we have to count on the good judgment of specific judges.  And for me, it's not okay.  We need security.  We need to feel safe and know what kind of decision we can expect from judges.  Thank you very much.

>> GUILHERME CANELA GODOI:  Thank you, Judge.

(applause)

>> Julie:  So just brief, some what the judge said.  And we would like also to underline, it's very important for you to know, his Ph.D. thesis is about hate speech.  So who wants to further discuss this issue, it's very interesting and complex.  I'm sure he has in other thoughts on that.  But he started underlining the reasons for protecting freedom of expression.  He mentioned the very, I'm sure most of you know the very important internet bill of rights in Brazil that has changed the way judges are judging internet cases after the approval of that law.  The article 19 of the law that is actually being challenged in the Supreme Court of Brazil right now.  Some parts of that article.  The discussions in Brazil like Carolina Dieckman law and other cyber crime issue, fake news, cyber bully and the hot problem of hate speech.  So it's a very burning initial menu for our discussions.  From and now we move to have a perspective from our colleague from Asia.  So Adlin, you have your 10 minutes.

>> ADLIN ABDUL MAJID:  Okay, thank you very much.  It's a privilege here to be here.  I'm a lawyer in Malaysia.  The focus of my practice has been on internet law, and data governance.  First of all, you have to apologize for my voice because I come from a warm climate.  And I think my body doesn't agree with November weather in Berlin.  So I do apologize for that.

I'm going to start off by defining what the rule of law is.  And I will be sharing experience in Malaysia and Asia in general towards the rule of law.

I've taken the definition of the COE, the council of Europe on the document on the rule of law.  And it describes the rule of law as entailing the principles of supremacy of the law, equality before the law, accountability to the law, fairness in applying the law, separation of powers, participation and decision‑make, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

So there's very limited time to discuss this at great lengths.  So I'm going to cover three issues.  First of all, this concept of the rule of law is quite easily when it comes to the physical environment.  And that is simply because as lawyers, judges, and those practitioners of the law were very, the law in itself is very jurisdictional and very territorial.  So I only practice Malaysian law.  I wouldn't know the laws in any other jurisdiction.

You contrast that with the internet and activities that are done on the internet which is extraterritorial.  Something committed in one country may be a crime in another country.  And because of that, it becomes an issue as far as the application of the law is concern.  Because something committed in country A may not be a crime in country B, but because of the speed and the use of internet, things can be done NRI around the world.  So that would be the main issue, the territory compared with the extraterritoriality of the conduct or activities on the internet.

Secondly there, are also, I think as was discussed earlier, issue of relation to rights that arise under in the digital environment.  And the issue of freedom of expression, freedom information was raised just now.  On this, I would like to discuss or share a bit about Malaysia's experience on this area.

Malaysia is one of the first countries in southeast Asia to put in an overarching or holistic law on the internet.  We had our communications and multi‑media act which was enforced in the 1990s.  Which is quite early considering how the internet just became more commercialized in the 1990s.

So in the law, the law regulated, somewhat regulated the use of the internet within our country.  By the same time, there was also a very bold policy statement or so I thought as far as the Government was concerned.  Because the Government took the stand at that time that there should not be censorship of the internet.  So the position that was taken under the law is that, I'm reading the provisions of the law, nothing of this act shall be construed as censorship of the internet.

So the Government at that time realized that perhaps internet could not be controlled and there should be more self‑regulation rather than regulation by way of Government through censorship.  So there was a very bold statement by the Government.  That didn't want to sensor the internet.

I say it's a bold statement, firstly because Malaysia is a conservative country.  We are mostly majority Muslim country.  And our way of life is quite conservative.  But the internet amplifies the ideas that maybe against the moral norms or religious norms which usually in our society we will censor, we try to ban or control.  So the statement by the Government at that time, that they were not going to censor the internet I thought was inconsistent with the way the Government approached banning of certain statements at the physical level.  That's one point.

The other thing, the political situation in Malaysia.  We had a Government, the same Government for 60 years.  And the media was the Government's machinery in relation to the Government's main political machinery.  So say they were not going to censor anything I thought it was a bold statement.  But it was enshrined in both poll is and our laws.  So were we true to our commitment?  And my answer, is we tried to be true.  Because at the end of the day, although the provision was there, that the Government was not going to censor or block the internet, we did ‑‑ there was a lot of provisions or self‑regulation within the law.  And this is consistent with the rule of law and with how the internet should be approached.  So for example, self‑regulation include things like content, the industry getting together to decide what acceptable content was within the country as opposed to having the Government impose the pro-Asians have on content. ‑‑ the provisions on contents.  So that was the law.

And the reality, in the end, we had to compromise.  And there was more pressure to block certain sites.  There was also political pressure.  At the end of the day, even though the provision of the law was there, the Government themselves found some kind of loophole to be able the use law, the same law that said there was no censorship of internet to actually block the internet after a while.

So that's just an experience in relation to how our Government tried to uphold the rule of law through respecting the freedom of expression.  Yet, at the end of the day, it wasn't so easy to be enforced.

Finally, my final point is really in relation to approach to legal enforcement.  I was quite ‑‑ I attended a quite interesting discussion a few days ago in relation to access to data by law enforcement agencies.  And I found that because most of the panelists was European, there was a presumption that everyone made which is data can be accessible by law enforcement agencies through a warrant, by a warrant only.  But in countries like Malaysia, for example, although there are provisions on the use of warrant and our laws, in reality, there's a lot of use of administrative functions in trying to gain access to information.  So there's no ‑‑ there are different standards in different jurisdictions and maybe Asian standards are slightly different from European or American standards.  And I think before we can talk about global implementation of the rule of law or global approach to legal enforcement, these standards need to be able to be standardized first.

At the same time, we can see in certain laws that we are more harmonized in our approach.  Data protection laws rely on adequate.  So there is form of relation to laws.  And with the DGPR, the extraterritorial application of the GDPR means lawyers like myself who never studied European laws now have to understand European laws because the laws would apply to Malaysian companies as well.

So there is systemic international application to certain laws.

>> And if were really to happen, we have to have, I will end with this, if this were really to happen, we have some form of international cooperation to make this happen.  Thank you.

(applause)

>> GUILHERME CANELA GODOI:  So thank you.  Very interesting approach on the difficulties and the difference of applying rule of law in a physical space and the analog world and internet.  But also it was a very interesting your approach on self‑regulation and how the Government initially, how the lawmakers introduced that as an approach towards internet but in reality, doesn't work exactly like that.

Then the issues with legal enforcement.  And this is an issue in areas.  One thing is the legal enforcement by a judge or by a due process of law.  And enforcement made by a administrative authorities that in times are not independent regulate serious how this works.  And then finally, your mention on importance of understanding and study and discussing international standard and how international cooperation can play a role here.  So thank you so much for your insights.  And now we move from national courts to international courts.  And if I may ask Judge Darian to offer the perspective the European human rights court.  Judge, tough floor for 10 minutes.

>> DARIAN PAVLI:  Thank you.  It's a great pleasure to be here.  In particular sharing the stage with colleagues from all over the world.  I think from all the panelists here, I probably have the shortest slide.  So it's really exciting.  And the topic is personal but also professional level quite close to my heart.

I guess the big challenge, the first challenge when you have, when you talk about rule of law, the internet is how on earth are you going to say anything significant in 10 minutes?

 

(Laughter).

>> DARIAN PAVLI:  Considering that the breadth of the issues.  So I'm going to try to circumscribe the topic and focus towards three points.  But let me make this introductory point.  What's the role for rule of law in this debate?  And then I would say immense.  I mean, the internet affects practically now every aspect of human activity.  And that means that there are implications for the right of humans, of individuals and groups.  And at least coming from my perspective as a judge sitting in the regional human rights court, we see these implications now coming before us on an almost daily basis.

The three sets of issues that I would like to touch within the time allowed are the following.  One is Government, direct or indirect Government interference, for example, in the form of blocking.  Second set of issues is intermediary liability, again a huge topic but I'll try to see it from the perspective of my court, the European court of human rights.  And then thirdly, users rights.

Unlocking I believe with sort of privileged because we're from the international courts, we're probably among those that have had the opportunity to express ourselves on matters of Government interference with access to the internet or parts of the internet.  We've had so far two judgments.  Both involving Turkey.

And they involved respectively the blocking of Google sites that doesn't exist anymore, I understand.  But it was a big hosting site.  And the second one, the blocking of YouTube.

The entire platform was blocked in Turkey for a number of years.  The court took the position which I think is an important one that first of all, this is akin to prior restraint.  Prior censorship, which means the highest level of scrutiny and standards with freedom of expression ought to apply.  And the Court also talked about collateral censorship because of about 10 videos that were found to be degrading of the memory (?), the entire platform was blocked.  So the Court said that is a significant collateral censorship.

And in the particular circumstance of that case, what it means once it is a matter of prior restraint under our case law, that means that you have to have very strict conditions.  There's not an absolute prohibition but you have to have strict about the scope of what eucalypt.  And then the procedural protections.  And the Court found that those protections were not there.  And in fact, the Turkish authorities went beyond what their own law allowed.

Second set of issues, liability.  Now, you know, if you follow these issues, you know that in Europe, we fall sort of in between, I think quite similar to the lines that were described about Brazil, between the U.S. position of practically complete immunity for let's call it in general terms harmful speech, speech, either their own but most of the time, 99% of the time is not their own speech, the it's speech of users that harms other people, so what are the liabilities, responsibilities, matter of criminal law, civil law, and other aspects and.  In the U.S., we have the section 230, almost complete immunity.  In Europe, under an EU directive and that's the model most countries, we have notice and take down.  Which I think it's similar to what our esteemed colleague from Brazil described.

But it's not ‑‑ that's the general principle.  But there's a lot of movement and discussion around it.  And we've had at least one case from the chamber of the Court, which has been a matter of a lot of debate.  I'm not going to go into the facts now.  But it's a case against Antonia which was about the liability of major newspaper portal.  So not a mega‑platform but an important national platform.  And about some pretty strong comments by readers that were critical of private individual and the private company.  Not just critical but the Court considered that it was hate speech.

And in that case, the Court went even further than the notice and take down because the Court said in this particular situation, given the very extreme nature of the speech, the company, it was okay under the article 10 of the convention for the State to hold the company liable for not acting even in the absence of complaint.  Sort of without notice.

So these raise the question, is the Court throwing the entire European model into disarray?  But tried to be quite clear and limit the ruling based on the extreme form of speech and other circumstances.  And we've had at least two or three other cases afterwards in a UK case where the Court said, for most intents and purposes notice and take down will be okay.

That raises another question.  Now this is a long‑standing debate, but many people in sort of who are sensitive about free speech issues will say that no content should be taken down without a court order.  And it pains me somewhat to say that I don't think I can agree with that in the current internet ecosystem.  Just not possible.  Given the volume.  The gravity of what is at stake if you just look at the amount of stuff that is uploaded, I don't know, on YouTube every minute.  It's practically impossible.  And we've pasted beyond that.  If you look at the practices of the operators.

So then the next question is, if you accept that there needs to be self‑regulation, then the next question is how much and to what extent and in what conditions would kind of internal due process?  And I think there's no question now that, well, there may be a question, but my view and I think a growing consensus is that the platforms need to do more.  To limit harmful speech.  And I think an important turning point that is what happened with the U.S. election.

So hate speech affecting a number of individuals, even revenge porn which is very serious in terms of impact on individual rights are quite serious.  But when you presumably allow your users to interfere with the integrity of the electoral process, in one of the world's big democracies, and we've hearings in the U.S. congress before the UK parliament, the European parliament, then there is a gravity of altogether different scale.  And I think there it's quite clear that the platforms engage in a great degree of self‑regulation.  I understand it's a bit of a commercial secret how many people they exactly employ for this purposes, but I think for some of the big ones, it's in the tens of thousands.  That's quite an army.  So they already monitor and regulate user‑generated content.  And for that purpose I think it becomes increasingly important that you have due process.  But due process of a different kind perhaps.  That's internal due process.

That creates a proper balance between the rights of the users on both sides, because you have users who engage in harmful speech that affects others, but you also have users who will claim that speech that was taken down violates their freedom of expression which is also a very complex set of issues.  And in both of those regards, I think we need proper due process.  And one possible model is the digital copyright act that the use in the U.S. for copyright only.  And that has a system of notice, counter‑notice, and gives the rights to both parties.  And that is something that we're missing in Europe.  So active of the European Union that establishes the principle but there's no procedures there.  So no procedural safeguards.  A long discussion about the need for political and technical reasons we're still in a situation where there is no due process enshrined in law.

My time is up, so I will stop here.  I meant to say more about what rights users have against the platforms of such.  But you know, if someone wants to ask that question, that will give me another minute to answer.

 

(Laughter).

(applause)

>> His main points so the Court, European courts already dealing with.  So the issue of blocking and the Governmental interference directly with the content.  And the internet landscape.  And then he got a little bit deeper in the issue of internet liability and the different cases the European court already analyzed on that.  And he was elaborating on the issue of self‑regulation and the idea of due process in this process within the platforms and the internet providers.  And I guess that part of your suggestion is very much related to the discussion of transparency and accountability related to these internal process and how also the users will have a voice, either if they feel affected by a content or if they feel affected by removal of the content and also the impacts as we all know in the electoral processes in countries, not only the U.S.  So thank you very much.  And I'm sure the colleagues will help with questions that will allow you to go deeper in your thoughts on that issue that is very important.

So now last but not least on our list of initial speaker, we will have the perspective of a regional court in the African region, human rights court in the western Africa.  So justice Edward Asante, you have 10 minutes.

>> EDWARD ASANTE:  Thank you.  I am co‑justice.  I the Court is based in Nigeria.  I work there.

Economic community of western African states.

It's a 15‑member state organization.  And the Court is the main legal organ for the community.  In member state, it is very certain that they have their constitutions and they have provisions of protection of human rights and speech in their constitutions.  Country have gone ahead to pass interpretation acts, laws on privacy, and so many laws to protect those areas as to enhance the use of the internet.  And they also sanctions attached regarding those who use them to do things that are not right in the society.

Actually, many judges in the various countries sometimes when the laws are passed, to build capacity, that try to help them have education on their laws.  Therefore, in cases of any such test, they are able to deal with them very.  With

On the front of the Court, there have been a few cases that have become before the Court, violation of privacy and data protection.  Very critical.  And the Courts the human rights court, take an example from the European court and other international human right courts and dealt with them.  Particularly the issue of right to privacy and data protection.

Top state officials who as an example took bribes in the course of taking the bribe, they were filmed and recorded by private investigators.  So they came to the Courts in their home country for those allegations.  They felt they could rely on the interpretation in the privacy acts and therefore they came to use that as a defense.  But the Court said, no.  These are things that affect the public generally.  The positions you have are very sensitive positions and therefore the Court found clearly that mood of ascertaining that evidence was against their rights, but of course, looked at the general societal good.  Particularly there's a provision by the community there that democrats in governance which looks at both ways.  When you are a public servant, you need do the best for community.  And therefore, they use that to whittle down and dismiss their case.  On the other side, in private individuals.  Someone just went to record secretly called a party in a case with intentional trying to get incriminating evidence, use the internet.  And tried to tend their evidence in court.  The court said, no.  This one, they actually intention diabolic.  You planned to get that piece of evidence to use it in a private matter.  So therefore, these are some of issue issues.

And the issue of censorship comes in.  In one country particularly, the Government that 48 hours before the publication of any event, any activity, political activity should present the program to Government for them to look at it to avoid hate speech and that kinds of things.  But then they came to the Court and the Court said, there is no proof by the Government that they are previous prove them.  So all that they have done that before or intended to do that.  And the Court said this is a serious affront to freedom of speech.  And therefore, the court set aside that order.  And directed they can't do that.  And we know that when there's anticipation of any breeches of public morals and public health and all that, they can ask them to bring the programs or for them to look at.  But then, once in this particular case, there was no serious evidence by the State, the court said, no you can't do that.  Otherwise, as a line.  Must not cross.  And looking at the case as it is, there was no proof.  So the Court decided not to allow that to go.

Then the issue of hate speech which also happened in one country.  There was a matter before the Courts and the program, some people took it up on themselves to warn the judges.  The judgment didn't do go a particular way, they cited so many things and insulted the chief justice and the judges and claimed to do certain things which happen to happened to certain people before.  And it was a serious matter and the Court had to deal with it decisively.  What the Court did, they cited them for contempt of the Courts.  And then dealt with it.  So actually jailed the people for three months each.  And then they also fined heavily the radio station that sponsored for not controlling their people.

Actually been other claims of hate speech in the sub region by some countries.  But fortunately, they have not come before the Court.  There have been reports on them in media.  And therefore, there's one particular one which is now before the Court.  Which I cannot speak to because it is before the Court.  By then, Government wanting to do their own to extend the term of office, the position from certain (indiscernible) and therefore they shut down the propose internet facilitators because they were using to it broadcast things that were very to the society.  And therefore the Government had to shut down the internet, destroy certain.  These are allegations.  And they brought the matter before the Court.  A panel is undergoing the written procedure.  It doesn't come to court for us to even set up a panel.  And therefore, this basically the general issues on it.  And when it comes to this, I think members here will try to follow case the case and see how it goes.

Generally the Courts have been friendly in human rights and particularly of speech martyrs.  There have been about five cases where in the Court has admitted that civil society organizations and NGOs even have the right to come before the Court to bring cases of violation of human rights, violation of freedom of speech on behalf of victim which is a very good thing to do.  Mostly it is victims.  By then the Court has gone to see that these people can bring it.  Which is being done now.  The court has also awarded too much damages against even states and Government which have violated people's freedom.  Arrested and jailed, detained and treated, million treated journalists and media houses.  And the Court has definitely, a certain laws.  UNHCR, the iccpr, and the African base, all these, it is said and clear that abide.  In one case, they amended some of the loss.  So these have r some of the things that the Court has done and I think worthy of mention here.  Thank you very much.

(applause)

>> GUILHERME CANELA GODOI:  Thank you so much.  So some heads up here, the Court has taken cases already in privacy, data protection, it was very interesting to see the judge under lining how the decisions are take when civil servants are involved and the decisions that the Courts, has taken decisions like that.  On special protected speeches against civil servants because this is part of the democratic debate.  And doing the relationship between public interests and this allegedly affect civil servants.  The case of censorship and hate speech.  And how some Governments or some civil servants are using the idea of hate speech regarding anything they don't like.  So this is a problem that we are seeing in countries.  And how the Court is also creating jurisprudence in the region, using international standards from the African standards on human rights but also from other courts and for other regions.  And both Judge Darian and justice Asante, mention issues of the discussion of legality, and the special need for taking restriction of freedom of expressions according to international standards.  So now make the summary made, it's time for our three discussions.  They'll have five minutes each to raise a few elements from what they heard from our main speakers.  So perhaps you could go first.

>> AGUSTINA DEL CAMPO:  So first, I know we co‑organized this but the central energy is Guilherme, thank you so much for pushing this agenda.  It's great to see judges participating at the Inc. IGF.  It's refreshing.

So there's a lot to unpack.  I want to make three points that I think arise from common threads between the three presentations.  One of them is to really underlined the role that judges play and how judges have this privileged position to idolize internet governance issues while they get to see concrete cases and how policies are being applied.  Which I think gives them a lot of the times more time to reflect upon the legal analysis that is needed.  To go into this questions.

In Latin America, we have been monitoring legislation for a couple of years.  And what we see a lot of the times is pretty big disconnect between the legislative and the judiciary in cases.

And this disconnect has a number of different ways in which it is shown.  For one, we have interesting jurisprudence coming from the Courts in some particular directions.  For example, on freedom of expression and liability and we see a lot of times congress running exactly in the opposite direction.  Against what some of the courts in the region have already said.

The other disconnect that we've seen is that a lot of times we see Governments acting pretty much reactively before certain issues that they have huge pressures to address.  In one way or another.  So we end up seeing a lot of bills of law that are very reactive to the moment.  And that when seen through the lens where it's definitely in their application and the granularity of applying those policies and those laws, I think you can really see the privileged position that the judiciary has regarding this issues.

The second point I want to make is to underline two issues that came up in almost every presentation as challenges that the judiciary is still facing.  One is jurisdiction.  Directly or indirectly, I think you all mentioned it.  With internet jurisdiction project which I think could really benefit from judges' input.  But I think it's a common challenge that we have.  And we could really benefit from getting more insights from judiciary over internet governance.  The third and final point, I'm done, I swear, the third and final point is I still feel there's a lot of training that is needed for judiciaries and I think your initiative is pretty amazing.

I was very happy participate in some of the trainings.  And I do see a huge demand from judges.  There's the technical aspect to a lot of the issues that we're talking about that definitely require more capacity building in this particular area.  Thank you.

(applause)

>> GUILHERME CANELA GODOI:  Thank you so much.  So a few highlights.  This disconnection which I think is also a heads up for more dialogue between lawmakers and judiciary power members.  I know that we have the different members of parliament.  So I think this could be a start of something like that.  How reactive and perhaps this is later on a question for you, members of the panel, the need for the Courts to due constitutionality control and say conventionality control of those laws or the reactive bills that are decided by the parliaments.  And the issue of jurisdiction.  And the issue of training.

So now the views of the private sector, a platform that is very much involved in many cases being decided by judges elsewhere in the world.  So Facebook.  Monica, you have five minutes please

>> Thank you.  Well, so M public policy at Facebook Brazil for a little over three years now.  And I just have a few comments to make based on the presentations that came before me.  The Brazil Supreme Court is currently deciding on two very important cases that touch upon the last point that she made which is about how we need to foster more trainings because more and more judges are asked to decide over sometimes broader but sometimes very, very technical aspects of how the internet and the platforms themselves work.

The Supreme Court is about to decide on article 19 of the Brazilian internet, the framework for the internet.  And that's the article, the provision that provides safe harbor for application providers.  So that provision states that app provider, the platforms shall not be held liable for content posted by their users unless they fail to comply with a court order.  There are two exemptions.  One is revenge porn and another is copyright which has yet to be decided in the copyright law.  But basically that's the safe harbor provision.

It's currently under discussion by the Supreme Court.  I hear from a lot of judges that provision overwhelms the judiciary, the Brazilian legal system.  And you know, a lot of people don't know that Facebook does remove tens of thousands of content every single day globally.  It's a 2.7 billion user platform.  Because these contents violate Facebook's community standards, that's our terms of service.  Some of the removals are really easy to spot.  No one will argue that a picture is a child exploitation image or not.  But some of those are really, really hard to make a decision on such as, you know, hate speech.

Judge Darian, you mentioned the number of people, we currently have 35,000 people on Facebook work on safety and security and that involves the people that do content review as to poised to 10,000 only two years ago in 2017.  So we've been investing heavily on this.

So we do remove whatever violates our policies.  But there is a spectrum of content that doesn't violate our policies but that might potentially violate local laws.  And as a company, we believe that these decisions, we shouldn't be in the position to weigh in rights and that these decisions should indeed be made by the local judges.  And that's currently under discussion in Brazil.

Another high‑level case that's under discussion in Brazil is the blocking of, whether the blocking of private messaging apps such as WhatsApp should be protected or not.  And that involves end‑to‑end encryption.  Three years ago, I was not aware of how it works.  I have been working on this issue a lot.  So I can't fathom that judges who are faced with these issues will have, you know, knowledge over these very specific topics.  So and that's why Facebook is so proud to support and to keep supporting programs such as, you know, the one that he is doing in partnership.  I'm sure you will be talking about it.

I'm also very proud to lead the initiative in Facebook bra Brazil where my team and several other different teams within the company, we literally visit, tour the country did talk to courts and we talk to prosecutors, we talk to the federal and state police, letting them know how the platform works.  How the systems for collaborating with law enforcement works.  Most of the time the feedback we get is extremely positive.  We didn't know this existed.  We didn't know this channel was available.  Next year we have elections in Brazil.  We are likely to have half a million people running for office.  So you know, one of our big plans for next year is talking to electoral judges about the ads transparency tools, how the platform works.  There's a big difference between removing someone's whole profile that's one specific URL or a comment to a picture that was actually deemed offensive or that should be removed.  That's a different URL.  So just to give you a practical example.  I'm going to wrap up.  But thank you so much.

>> GUILHERME CANELA GODOI:  Thank you.

(applause)

>> GUILHERME CANELA GODOI:  So it's very interesting to see the perspective of the platforms that need to go to court in some of those cases, perhaps later on judges and you could comment on this specific mention on how difficult it is to take decisions in some cases on very highly technical issue.  The end‑to‑end encryptions is one of them but there are zillions of others.  And there is a point that judge Darian already mentioned that is the overwhelming of cases, amount of case living and reaching the judiciary everywhere and how the system will cope with this amount of case as everything needs to be decided by a judge.  And normally we would say should be in cases that are might have limitations of rights.  So how to cope with that.  And also, the difference between the terms and conditions of the platforms and different local laws but also the international standards of freedom of expression and access to information..  So thank you.

Last but not least, our last commentator, you have the floor for five minutes.  Thanks

>> Thank you.  Good afternoon.  I'm the regional director for Latin‑American and the Caribbean and internet society.  I have been spoiled a bit.  Monica talked about what I was going to talk about.

But I've very proud, because I actually, your wrap‑up was excellent Guilherme what we've been doing together this year.  Because sometimes it's not just how the law applies to something.  It's how you make it happen.  When you ever something that is so different and so technical, as specific as the internet in between.  And sometimes the system doesn't have the technical knowledge to make it happen in the right way.

So we partnered this year as Monica has stated with Facebook and to create capacity among judges in the Caribbean.  Basically on how the internet works.  And an introduction on the technicalities and some not so technical aspects of the work of the entire net.

The internet society, it's technical community organization.  We've been born 27 years ago.  And internet times it's a long, longtime ago.  And our fathers were those that developed the internet at the very beginning of the times

So we brought to the tables our technical expertise, understanding on how the internet works.  And we created these capacity building training for judges and judiciary.  And basically what I'm going to summarize what we did this year.

We trained 414 participants in Latin America.  In six‑mode version to internet governance which was tailor made for training, we covered six models.  On introduction to internet governance, internet actors and stakeholder groups but the third is internet infrastructure, how internet work, internet policy principle, internet variance, legal aspects of internet governance are the six models that we had.

It was impressive because there is some particular cases that make this urgent and necessary.  Remember a while ago, one case had just relates to one of your competitor.  In this case you mentioned your own, but judge trying to block content on one blog.

One blog, they tried to block the IP address of the blog.  The judge actually ordered to block the IP address of the blog.  And he was a blogger.  And they blocked that bog.  For 40 million block more.  That were sharing the IP address.  We invite you to ‑‑ I think one example of this training and something that was very Ryan Welch is a paper that I think it portrays very well what we are trying to do.  A paper that was released by the internet site two years ago on content blocking.  Basically what the paper does is from a technical perspective, summarizes all the technical ways to block content on the internet.  There are five of them.

And the problem is that the way the architecture of the internet works is that none of them is perfect.  And none of them is without any damage that is not the end that you are looking for.  So applying each of these five will have some harm.  And there will be some way of (indiscernible).

So I have to wrap up.  I got the paper.  I invite you to join us in this discussion.  And just the last thing, we will try to replicate this training in 2020.  Thank you very much.

(applause)

>> GUILHERME CANELA GODOI:  Thank you.  So this course on how internet works and it actually attract lots of attention from judges from all over the region.  As he said was 414 but it's interesting that they were dispersed for many, many countries in Latin America and the Caribbean.  So it was also interesting to see how they dialogue.  Among themselves as judges on the issues.  They personality on the decisions that was already raised before.  And block content and this paper he mentioned is very, very interesting.  So things were very well good students and did stick to their time, we have 15 minutes for questions.

So let's try to get three or four back to them and if we have more time.  So one here and one there.  And the fourth and then we go back.  Try to be brief so we can get more questions.  We have mics or ‑‑ yes.

>> Yes, we're here.

>> GUILHERME CANELA GODOI:  You need ‑‑

>> So we're cued at the mic already.

>> GUILHERME CANELA GODOI:  Sorry, I didn't see you because we have lights that are burning us here.  Like if they want to offer us for dinner later on.

 

(Laughter).

>> Yeah, thank you.  A wonderful panel.  And very illuminating.  I have two specific questions to the panelists.  The first thing as a Malaysian speaker said, jurisdiction is an important element in enforcing law.  And on one hand, we have companies which are American and exercise their power all over the globe.  So that is a serious problem for somebody like me who comes from India.  Now we have serious problems with Facebook and YouTube which have lot of hate speech on them.  And then we have no idea how rules of Facebook or any of these companies operate.

And therefore that is a problem because as Indian citizen, am I subject to the rights that Indian state gives me or subject to Facebook which has zero accountability to me as a citizen of my country?  It's a serious problem.  It's not Facebook fault but need for some kind of a legal framework which I would like the experts on this panel to speak on to the first point.

Second point is we all know spite of employing 30,000 people, Facebook is still profitable and.  The money that Facebook and Google or YouTube make is on the data that the users put into the systems.  And right now, we just have an option of saying I agree to everything they ask us to in terms of giving up our rights of our data.  There are on data, this is a part of manifesto of principles which will embody legal flame works.  Data creating work of data rights.  As of now, if a case comes saying the data that I put on Facebook or on YouTube, what rights do I have over it on the platforms?  And in that sense, it also is a question of the economic imbalance between the first world and the developing countries.  Thank you

>> GUILHERME CANELA GODOI:  Thank you so much.

>> Good afternoon.  Actor of internet jurisdiction and policy network.  Quick comments on the remark that was made by the person from ma La Shay regarding the lack of warrants in many countries.  I inking you to look at the work of Peter (indiscernible) on the possibility of establishing special rules for access to evidence when it is a transnational request.

The second thing is, courts are very used with handling issues of proportion quality.  One of the things that came out of the content and jurisdiction program is the fact that there's a new dimension which is geographically proportion.  What is the geographic jurisdiction regarding the right to be indexed.  And I want to finish by saying there is very interesting checklist for rule of laws as you know in the commission.  And one of the elements that is highlight there had is of course legal certainty.  One of the challenges is that although Facebook and other platforms are publishing the criteria and the terms of service, there are very regularly updated which is a necessity to adapt them to the environment but when the norms applicable are basically changing every two weeks, it is making it difficult to really have an element of legal certainty.  Thank you.

And if I may, just one question, there is increasingly territoriality in a lot of national laws I'm beginning to wonder, whether in terms of internal law and the consideration of some of the laws, there might be an evaluation of the proportionality, just an open question

>> GUILHERME CANELA GODOI:  Thank you.  So let's get one question from each side of the room.  So please, go ahead.

>> Thank you.  Steve, question for judge Darian Monica regarding liability.  Judge, I thought it was helpful the way you framed the ends of the spectrum between the U.S. approach on the one side and Brazil.  So you characterize the U.S. approach of near total immunity and I wonder if you were aware that section 230 provides no immunity if the platform is accused of activity by the users that violates federal criminal law.  Immunity provides from civil suits which we have too many the U.S., and local and state laws but there's no immunity for federal criminal violations.  I am sure you kind of knew that but I wanted to make that clarification.  My question Monica, in Brazil, the notice and take down regime that you have at Facebook, you said there were exceptions to it.  I believe you said revenge porn but those are easy to spot.  The judge said before he left that Brazil was considering a fake news law.  Now if fake news is something that's determined by the Court, that's much easier you in a notice and take down.  But do you believe the law in Brazil is heading towards a mandate that you have to evaluate and determine if every post is true or false or face liability?  Thank you.

>> GUILHERME CANELA GODOI:  Thank you.  One here, please.

>> Good afternoon.  I am a tech legal council at International Space Station now.  We are NG r who defend rights of users at risk on the internet.  For the honor justices on the panel.  Do you think that judiciaries are V a role to play in cases where states use national security exemptions in the law for internet shutdown, website blocking, surveillance, and other measures that affect civilian infrastructure and the rights of the users?  Thank you.

>> GUILHERME CANELA GODOI:  Thank you.

>> Thank you.  My name is Raúl.  One comment, I hear, we hear many times about the platform should do more about relation and et cetera, et cetera.  I want to make a point that sometimes when we are trying to punish the platforms saying, okay, tough do more, you have to invest more in detecting the contents, illegal con 10s or terrorist information or whatever, what we are doing is exactly the opposite of what the authorities or the judiciary authorities want to do.  That is they want to limit the power of the platforms and what they are doing really is tome power the platforms.  When they are saying, you have to stop it.  So I think that that's not the solution.  And fortunately, it seems that is not the solution either that the platforms are looking for.  So there is a conversations here that we have to take advantage of.

So I call to for different approaches.  And I know the platforms have to do more, collaborate more, have to be more proactive in things and be more transparent basically.  In recent elections in my country, I tried to help several candidates teams to deal with false information.  And it was quite frustrating to go through the processes to deal with the platforms and the sites were not as good as we expected.  While we are aware that the platform have made new tools and procedures that going in the right direction but it's not enough.  Much work is needed.  Thank you.

>> GUILHERME CANELA GODOI:  Thank you.  Last question for this round.

>> I'm a German law professor.  And I want to inform you about a ground‑breaking decision the highest German court, the federal constitutional court rendered yesterday.  And it's the first decision about the right to be forgotten.

Is part of European regional data protection law.  And why I want from a global perspective to inform you about is maybe there is a different vision of true speech after 30 year, it was concerning true speech of a media online article.  And the murder had been sentenced 30 years ago.  And so my question to the panel is, the right to be forgotten, is any point of interest for you?  Question one.  And the second question is, don't you see that we will have a totally different culture in one vision, in one internet?  Thank you so much.

>> GUILHERME CANELA GODOI:  Thank you.  So at least eight or nine very huge points.  Jurisdiction, data right, rights and accountability, citizen users versus platforms for personality, rule of law, checklist, legal certainty from commission on territoriality and internal law, few questions on internet liability, fake news, national security exceptions.  Then there was the risk of private censorship, empowerment of platforms and finally simple issue right to be forgotten.  And we have four minutes and 52 seconds.

 

(Laughter).

>> GUILHERME CANELA GODOI:  So I will ask the three speakers to select one issue.  You have one minute and then 30 seconds for the others.  And we need to wrap up.  So let's start from the other side now.  So please, Judge, one minute.

>> Thank you very much.  On the use of national security.  It's a bit dicey situation.  National security always hide behind things that go against the State.  And therefore, they try to climb down rights using national security reasons.  By then the Court must be satisfied.  That's why you come to court.  The evidence must be there.  They just can't come parody national security and you allow everything to go.  For instance, some countries need court orders to even go to for evidence on calls made and all that.  So the Court needs to be satisfied.  They use those.  But when you come to court, the court will investigate and find out and know the actual evidence if it is evidence that the Court must support in terms of protecting national security and public safety, the court will do that.  Otherwise, the court will whittle down whatever they've done.  Yes.

>> GUILHERME CANELA GODOI:  Thank you so much.  Judge Darian.

>> DARIAN PAVLI:  Yes, one direct question about criminal immune any the U.S.  I certainly do not consider myself an expert on the U.S. framework.  Just wonder, I would have seen it in the news.  When was the last time that a senior executive of the platform was held criminally liable in the U.S.?  I must have missed that.

 

(Laughter).

>> DARIAN PAVLI:  I know a little bit about the civil liability and in part because I had to give a talk recently the U.S. and European position.  And one of the cases I picked up is a case decided in California.  And I won't name the platform, they have already come under a lot of criticism today, you can look it up yourself.  But this is one platform that refused to remove the fake profile of a man featuring sexually explicit images of him.  I mean, I think from the European perspective, any balanced perspective, one would say, why on earth would this platform refuse to do that?  And I think the answer is because they can, as a matter of law, they can.  That's the effect.  As a point are we empowering platforms?  Yes, to some extent we are.  If we are giving them the responsibility.  But what's the alternative?  And what I'm concerned about is not that Facebook or Google may have too hire another 10,000 or 20,000 people to do the moderating.  You know, fabulously reach and they have a global reach.  And with that comes global responsibility.  That's not my concern.  My concern is the incentives that we provide.  If we tighten the incentives beyond what's proportionate and reasonable, then we're going to have more speech censored than is necessary.  And it's a very, very delicate balance and one would need to look at even on a national basis attend of the day.  Policy making by every country.  But with cross border ramification of course.  And on the right, just one sentence, yes, very interesting to hear about the decision of the German constitutional court.  I don't know if it's the same case, I doubt it, that was decided by the Court recently.  It's mlwww versus Germany.  That's the right to be forgotten case.  But it's similar.  It's about a murder that happened a longtime ago.

>> GUILHERME CANELA GODOI:  Thank you, Judge.  Your comment on one issue that you want to.

>> I wanted to address the issue of the right to be forgotten.  Thank you for sharing it.  This is the first time I heard of it and I had to Google and will look for it just now.  But I think rather than it being an issue where there are different interpretations of the law and different ways that the law is being enforced, I think decisions like that will promote more consistency overall globally in terms as far as the law is concerned.  And the main reason is because of the gdpr.  It applies to non‑entities to countries like Malaysia, we're having to draft or amend our data protection laws to be more consistent with the gdpr.  So these decisions are more, would promote a global ‑‑

>> GUILHERME CANELA GODOI:  Thank you.  I know you have an airplane to catch so I don't know if you want to use your Pope Benedict seconds now and you are free to leave.

>> Sure.  Just want to agree with what Judge was saying.  I think the two main issue access to justice and jurisdiction and accountability.  Whether we're talking about self‑regulation or regulation.  The judiciary has a big role to play in the entire conversation.  And it all ends up adding up to a question of proportion quality and clear‑cut rules.  Whether self‑regulated or regulated by congress.

>> GUILHERME CANELA GODOI:  Thank you so much.  So safe travels.  So Sebastian, do you want to use your 30 seconds.

>> Less than that, thanks.  It's a call to action to work together.  And if we don't do this together, we are not going to make it.  So let's collaborate on that.  And the solution is going to be there for all of us.

>> GUILHERME CANELA GODOI:  Thank you.  Monica, I know you were mention several times.

>> I don't feel I have enough time.  So I'm not going to answer everything but try to address a few of them, the highlights.  Took has been working really, really hard on being more and more transparent.  The way our rules work, our community standards, our terms of service, we have been working hard on that making that language the most accessible possible.  Yet allowing people to go into detail on how we take decisions.  And look, I'm not saying we get everything right all the time.  We don't.  And because we acknowledge that we don't, we're creating the external oversight board which will, you know, it's an independent body that will be able to make decisions on Facebook's decisions over content removal.  Decisions by this board will binding on Facebook, Facebook will not be able to appeal.  And this board will also be providing Facebook with input on its own internal policies.  And that leads me to the question.

Yes, we are updating a lot.  I'm happy we're updating because that means we're, you know, taking input.  My team is responsible for working with a team that consults with experts every single week.  So that we can make our policies better.  Maybe that's too much information.  But we're maybe being more transparent.  But I understand your point on making it difficult, you know, it's difficult to have legal certainty.  Because at the end of the day, we are, yeah.

And finally, just a comment on liability.  I'm sorry I didn't make myself clear but we do not have a notice and take down regime in Brazil.  Even for copyright law that's not ‑‑ it's under discussion, law needs to be revised.  What we do have is a system in which companies are liable only if they fail to comply with a court order.

And regarding fake news, there are over 30 bills of law proposed currently in Brazil that try to criminalize fake news.  And actually a lot of those try to impose the responsibility for deciding what is true and what's not on if platforms.  We fight those bills.  We don't ‑‑ I don't want to live in a world where Facebook has to decide what's true and what's false.  We should not do that.  And if you look into Facebook's terms of service and community standards, you will not find a regulation that says, you are not allowed to post fake news.  Because if we were to say that, we would be putting ourselves in that position.  The way Facebook works with fact news and disinformation is by working with external fact checkers and we don't remove the content.  We demote the reach that the content gives and we try to give people more information.  So if you choose, for instance, to share an article that has been marked as false by a third party fact checker, they're all internationally audited and certificated by pointer, then we show you a screen that says it's been marked as false.  Are you still sure you want to spread that?  And we find that people when they have more information, they make better decisions.  So no, we do not want to be the arbitrators of the truth for sure

>> GUILHERME CANELA GODOI:  It's important to understand, regarding fake news is different for many countries in Brazil.  The regulation of elections is made by the judiciary.  So as you have labor judges, civil law judge, family judges, criminal law judge, there are electoral judges in Brazil.  In which the same scheme, you have lower courts, appeal courts, federal, Supreme Court, for electoral things and they are in the same scheme of careers.  So in that case, it's even more complex because the judges during the last election, they were receiving thousands of requests to take decisions of if this is fake news or not fake news.  It's not the same case in other countries that we have an electoral authority not connected with the judiciary power as is 2 case in Brazil.

So from our side, co‑organizers, we should thank you very much for being here.  Such late in the night.  Thursday, you know, you have a party in a few minutes.  But I think the amount of people that came during the session, I'm seeing many people here that leads deals with strategic litigation, jurisdiction issues, lawmakers, the other parts of internet community which shows that we must continue with this intersection between judges and the internet governance community and other judicial operators.

L continue with the judges initiative which is a global program as said, we have been already involved in training 13,000 judicial operators in Latin America.  2,000 in African.  And the program will be expanded to Asia and to Europe soon.  So I hope, if you are interested, you can join the initiative.  I'm sorry I couldn't accept the other questions, but I'm sure the panelists can stay more if you have issues to discuss with them.  Thank you very much.  Have a good evening.  And let's keep meeting each other during IGF.

(applause)

 

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