Embed Size (px)
Citation preview
THE ROLE OF THE ROLE OF LAW LAW IN FRAMING IN FRAMING DEMOCRACY:DEMOCRACY:
THE CHALLENGES OF THE CHALLENGES OF CYBERSPACECYBERSPACE
Samantha Ribeiro Samantha Ribeiro PhD ResearcherPhD Researcher
European University InstituteEuropean University Institute
07 de Maio de 2010
Law and DemocracyLaw and Democracy
Democratic State of LawDemocratic State of Law
People rule: The authors and People rule: The authors and addresses of norms are the same.addresses of norms are the same.
EVERYBODYEVERYBODY
Traditional libertiesTraditional liberties Guarantee of the citizen’s Guarantee of the citizen’s
membership of the legal communitymembership of the legal community Due process of lawDue process of law Welfare rights Welfare rights Equal rights of participation in the Equal rights of participation in the
public debate.public debate.
Lawrence LessigLawrence Lessig
Democracy should not be a “perfect Democracy should not be a “perfect reflection of the present temperature reflection of the present temperature of the people. Democracy was to be of the people. Democracy was to be more than a string of excited more than a string of excited utterances. It was to be deliberative, utterances. It was to be deliberative, reflective, and balanced by limitations reflective, and balanced by limitations imposed by a constitution.”imposed by a constitution.”
Code 2.0 (2006)Code 2.0 (2006)
DEMOCRACY REQUIRES THE PROTECTION OF
FUNDAMENTAL VALUES
SOMETIMES EVEN AGAINST THE DEMOCRATIC WILL OF PARLIAMENTS AND PEOPLE.
Citizenship Divide
Cartoon by Peter Steiner published by The New Yorker on July 5, 1993
Access: Lan housesAccess: Lan houses There are now 90000 lan houses in Rio (more than bookstores (2676) There are now 90000 lan houses in Rio (more than bookstores (2676)
and theatres (2300)), of which 280 are in Rio slums in informality.and theatres (2300)), of which 280 are in Rio slums in informality.
““When the first popular cyber café was opened in When the first popular cyber café was opened in Rocinha, it was planned to work from 9h to 18h week Rocinha, it was planned to work from 9h to 18h week days, and from 9h to 12h on Saturdays. The interest days, and from 9h to 12h on Saturdays. The interest of the population was so intense, that they changed of the population was so intense, that they changed that first idea. The room with 22 computers is open that first idea. The room with 22 computers is open from 7h to 23h, everyday, including Sundays. It is from 7h to 23h, everyday, including Sundays. It is surprising to notice that the websites more visited surprising to notice that the websites more visited are in English. In the rank of the websites more are in English. In the rank of the websites more searched, the first one is the Discovery website, searched, the first one is the Discovery website, followed by the Cartoon Network’s”.followed by the Cartoon Network’s”.[1][1]
[1][1] From a newspaper “Jornal da Tarde” in 2003 about the possibility of internet Access in the Rocinha slum. From a newspaper “Jornal da Tarde” in 2003 about the possibility of internet Access in the Rocinha slum. Free translation. The original text in Portuguese is available at Free translation. The original text in Portuguese is available at http://http://metaong.info/node.php?idmetaong.info/node.php?id=362=362
Use: Freedom or control?Use: Freedom or control?
Lessig: Lessig: Code is Law.Code is Law.
What does it mean?What does it mean?
What is the point?What is the point?
AWARENESSAWARENESS
If code is law, we should ask who If code is law, we should ask who makes it and with what values.makes it and with what values.
If code is not law, it should still be If code is not law, it should still be built in accordance with the law. The built in accordance with the law. The constitution should also limit the constitution should also limit the freedom of software and hardware freedom of software and hardware makers, based on our fundamental makers, based on our fundamental values.values.
CultureCulture
Freedom of speech, anonymity, liability, Freedom of speech, anonymity, liability, filters, censorship.filters, censorship.
Democratization of expression: discourse, Democratization of expression: discourse, art, music. art, music.
RW – R – RWRW – R – RW
P2P - PiracyP2P - Piracy
Regulation?Regulation?
Equality may require regulation to Equality may require regulation to silence some in order to give silence some in order to give megaphones to others – minorities – megaphones to others – minorities – cases of offense of dignity. (Owen cases of offense of dignity. (Owen Fiss)Fiss)
(US approach freedom)(US approach freedom)
Copyrights law (US also limits freedom Copyrights law (US also limits freedom on these grounds)on these grounds)
ChinaChina 1) Unbalanced development – digital divide1) Unbalanced development – digital divide
2) Online Censorship. The Government 2) Online Censorship. The Government controls the internet according to Lessig’s controls the internet according to Lessig’s model, through four modes: a) regulations model, through four modes: a) regulations and laws; b) technological architecture – and laws; b) technological architecture – filters and blocks; c) Social Norms – filters and blocks; c) Social Norms – agreement with formal norms is required to agreement with formal norms is required to log in and if undesirable content is found, log in and if undesirable content is found, there are warnings and bans to the poster there are warnings and bans to the poster and the Panopticon “all-seeing place” and the Panopticon “all-seeing place” provides surveillance ; d)market – provides surveillance ; d)market – panopticon with law enforcement force panopticon with law enforcement force business to self-censorship. 3) Irrational business to self-censorship. 3) Irrational Discourse – nationalis, rumor.Discourse – nationalis, rumor.
ItalyItaly
Google Vs VividownGoogle Vs Vividown Tribunal of Milan : offendevano la reputazione Tribunal of Milan : offendevano la reputazione
dell’Associazione Vivi Down (…) consentendo che dell’Associazione Vivi Down (…) consentendo che venisse immesso per la sucessiva diffusione a venisse immesso per la sucessiva diffusione a mezzo internet (…) e mezzo internet (…) e senza alcun controllo senza alcun controllo preventivo sul suo contenutopreventivo sul suo contenuto un filmato in cui un filmato in cui persone minorenni, in concorso tra loro persone minorenni, in concorso tra loro pronunciando la seguinte frase (…) ledevano i pronunciando la seguinte frase (…) ledevano i diritti e le libertà noanche la dignità degli diritti e le libertà noanche la dignità degli interessati.interessati.
E-commerce directive states that the E-commerce directive states that the providers should be liable for the post providers should be liable for the post that they know to be illegal.that they know to be illegal. (Art. 14) (Art. 14)
Google’s claim: “Google’s claim: “La legge europea La legge europea stabilisce il stabilisce il principio di principio di segnalazione e rimozione di segnalazione e rimozione di contenuti illeciticontenuti illeciti. . Ed è ciò che Ed è ciò che abbiamo abbiamo fattofatto“.Peter Fleischer“.Peter Fleischer
Codice della Privacy – commercial useCodice della Privacy – commercial use
BrazilBrazil
MP (Rondonia) Vs GoogleMP (Rondonia) Vs Google
Orkut: Google was obliged to identify Orkut: Google was obliged to identify the users that uploaded the pages the users that uploaded the pages with bullying contents, had to pay a with bullying contents, had to pay a fine for each day that the content fine for each day that the content was still in the net and was obliged was still in the net and was obliged to make sure that no page with to make sure that no page with similar content would be uploaded.similar content would be uploaded.
ConsequencesConsequences
What are the consequences of What are the consequences of making providers, google, youtube, making providers, google, youtube, bloggers liable for the content bloggers liable for the content posted?posted?
Do we want to give this power to Do we want to give this power to them? What are the implications of them? What are the implications of these decisions for the fundamental these decisions for the fundamental values we have?values we have?
ConclusionsConclusions
The application of law in different The application of law in different contexts might generate results that contexts might generate results that deviate from the ones that were deviate from the ones that were intended.intended.
The way internet is built will The way internet is built will contribute to define what sort of contribute to define what sort of society we will have in the future.society we will have in the future.
Fundamental Law should always be Fundamental Law should always be interpreted and applied in view of its interpreted and applied in view of its rationale.rationale.
ConclusionsConclusions
If this rationale is not clear, the role of If this rationale is not clear, the role of the jurists is to point out the the jurists is to point out the ambiguities and the values to be ambiguities and the values to be balanced in order to provoke reasoning balanced in order to provoke reasoning in public debate.in public debate.
Marco Regulatório Civil da Internet Marco Regulatório Civil da Internet Brasileira – Brasileira – Project by the Ministery of Justice and Project by the Ministery of Justice and the Law School of Fundação Getúlio Vargas of Rio de the Law School of Fundação Getúlio Vargas of Rio de JaneiroJaneiro
See http://culturadigital.br/marcocivil/sobre/See http://culturadigital.br/marcocivil/sobre/
