Regulating the Internet without damaging free speech: a set of recommendations

By Eduardo Bertoni
Director of the Center of Studies on Freedom of Expression and Access to Information –CELE-, Palermo University School of Law, Argentina.

The Center for Studies on Freedom of Expression and Access to Information (CELE) held the workshop “Freedom of Expression and the Internet: Regulatory Aspects in Latin America” at the University of Palermo Law School (Argentina) on September 12-13, 2011. Workshop participants included professors, scholars, and experts on Internet law and regulation from across Latin America. The workshop viewed the subject through the lenses of ISP liability, retention and protection of personal data, content filtering and jurisdiction of defamation suits.

Workshop participants concluded that Latin American regulation of ISP liability is ambiguous and incomplete. To incentivize true freedom of expression, regulations must unambiguously state that ISPs and other intermediaries are not legally responsible for third party content when they do not control it or are unaware of their illegality. In addition, when applying “notify and take down” rules, these notifications must be judicial in order to ensure that the process is not arbitrary or discriminatory.

On the theme of retention and protection of personal data, what constitutes “personal data” in the region must be legally defined, including discussion of whether an IP address should be considered a personal datum. Data retention regulation must take into account why the data is being retained, for how long, who is retaining it, and what will be done with it. While in some cases the owner’s consent may not be necessary, in others it should be clear and taken into account. Finally, the “right to oblivion” regulation appears to violate freedom of expression and access to information.

By its very nature, content filtering is a limitation of freedom of expression and should therefore be used as an exception. Following Article 13 of the American convention on human rights, in order to preserve freedom of expression it must be narrow, objective, and abide by definite standards. There must also be transparency regarding filtering mechanisms and decisions so that users know the reason that specific content has been removed and have the opportunity to appeal.

Finally, in the case of defamation, jurisdictional regulation must be clarified in the region to avoid uncertainty about applicable law, which could cause self-censorship. Criteria which grant jurisdiction to the author’s location of residence could minimize negative effects on freedom of expression by guaranteeing the author’s right of defense. In addition, free expression can be protected by adopting regulations that prohibit enforcement of foreign judgments contrary to international standards on freedom of expression.

As part of the ongoing CELE project “Freedom of Expression and the Internet,” this workshop’s recommendations are especially important as the region continues to see growing Internet usage. While these recommendations do not represent absolute consensus of all attendees, they serve as an artifact of the event and a path forward for Latin American Internet regulation. A complete set of recommendations will be published soon and we hope they will be a good starting point or a continuation of discussions on how to regulate the Internet without damaging freedom of expression.