ICTlogy

Conclusions for day 1
Javier de la Cueva, Lawyer.

First of all, it is worth noting the role of Philosophy when talking about Net Neutrality. We are indeed building a new world, and this new world is not about machines, but about people. And the question is not about Net Neutrality, but about what will be the new 4th generation fundamental rights that we want for our future.

Another important issue is the definition of jurisdiction. And this jurisdiction is not only geographical, but can also be understood all along the value chain Internet provided content and services. We can speak about the different layers that make the Internet up, of about the different ends of the service, etc. But the truth is that there are many actors on the Internet and many of them belong to different legal, technical or factual jurisdictions.

A missing point during the Congress is the asymmetry of download and upload speeds. This asymmetry makes it more difficult peer-to-peer sharing, and makes it more difficult to become a real prosumer.

Again, the important thing is what do we want. In matters of Net Neutrality, do we want Net Neutrality as a right, as a principle or as a goal.

In some way, the absence of net neutrality is like adding a layer of obscurity and unfairness amongst two layers of freedom: the layer of free software, the free code that runs the Internet; and the layer of free content, the one that is freely created by the contributing users.

Of course, we have to be aware that with great power comes great responsibility: we have to acknowledge that a lot of work has still to be done in issues like privacy, reputation and honour, security, etc. Part of the solution comes, evidently, with lawyers and policy-makers learning much more on how the Internet and technology in general work.

More information

• Relato del VII Congreso Internacional sobre Internet, Derecho y Política: Neutralidad de la red y derecho al olvido, by Javier de la Cueva

Track on fundamental rights, freedoms and liability on the Internet
Chairs: Clara Marsan Raventós. Lecturer, School of Law and Political Science (UOC)

Patricia Escribano Tortajada
Right to honour vs. freedom of expression in the Net

Defamation on the Internet has become quite an extended practice. What are the limits to freedom of expression vs. the right to honour? And what are the limits of the right to honour vs. freedom of expression?

There is a difference between illicit content — which is against the law — and harmful content, which may damage your reputation while being completely legal.

Some elements are aggravating the problem of harming one’s honour: the high volume of digital content, anonymity and trolling, advertising in websites (i.e. not requiring login for being able to post content), who can access the content, etc.

What are websites doing? Requiring authentication (at least via e-mail), terms of use, ability to edit comments, report inappropriate comments, etc. Some of them, though, are actually a potential threat against freedom of expression.

Most of the law is aimed at protecting the ISP while the citizen remains unprotected. There should be an effort in trying to define better the limits of the right to honour and freedom of expression, when and how regulation applies and, most especially, how do we protect the individual.

Primavera De Filippi, Smári McCarthy
Cloud Computing: Legal Issues in Centralized Architectures

Cloud computing has had a side effect in personal communications: when most of them used to be peer-to-peer through a decentralized service (most times a desktop and one’s own server), now many communications have shifted to public and into centralized services.

Most users do not know how to read the terms of service or would just not read them. Thus, they think they are getting services for free while they are giving away many of their rights.

Another side effect is the lock-in that happens once you’ve got your data and content out in the cloud, and can but just manage it remotely, not massively and with serious concerns whether this content still is your property.

We cannot only rely on national law when it comes to the Internet, but international agreements do not seem to do better. So, what should be done?

Anne W. Salisbury
Anonymity, Trash Talk and Cyber-Smearing on the Internet

The first thing that one has to demonstrate defamation is that the statement made is opinion and not fact, and that is has been exaggerated.

But on the Internet it also depends on other aspects. For instance, the blog were the statement is made and the use of the language (i.e. some words do not any more refer to the original definition of that word, but have become slang with different meanings).

So, many supposed libels or defamations are not such when looked under a different glass.

Indeed, disclosing the anonymity of the “defamators” can sometimes be much more harming that the supposed defamation they committed.

Mª Dolores Palacios González
The stress between impunity in the Net and limiting freedom of expression

There are many examples where anonymous contributors to blogs or forums insult third parties, including individuals, governments and firms. ISPs usually have the safe harbour that most Internet laws provide according to which they have no liability on such harmful comments and statements in general. Though the problem still exist: there are harmful comments on many websites.

But some exceptions should be made, or at least some issues taken into consideration.

For instance, if there is comment moderation, the act of editing and/or approving the comment with defaming statements should not be protected with the safe harbour for ISPs.

Alicia Chicharro
The space of freedom, security and justice and cybercrime in the European Union

The Lisboa treaty shifts “upwards” many of the decisions related to crime and cyberlaw, resulting in a top-down approach to penal law in the member states. There is, though, the right to veto a directive, and also the principle of subsidiarity. Cybercrime is included within this new framework.

Track on Intellectual Property Rights on the Internet
Chairs: Blanca Torrubia Chalmeta. Lecturer, School of Law and Political Science (UOC)

Monica Horten
Copyright at a Policy Cross-Roads – Online Enforcement, the Telecoms Package and the Digital Economy Act

What is copyright enforcement? Enforcement is about punishment, about forcing people to do things under penalty of being punished otherwise. That is usually done through courts, and can be written down in obligations (law, regulations, etc.) or even contracts (e.g. contractsthat users sign with service providers).

Sometimes enforcement will also imply a diminution of certain levels of privacy.

What the ‘Telecoms Package’ and the ‘Digital Directive’ tell us is that the fight to enforce copyright law is directly affecting mostly privacy issues and other fundamental rights.

Evi Werkers
Intermediaries in the eye of the copyright storm: A comparative analysis of the three strike approach within the European Union

File sharing still is increasing and becoming pervasive in all activities and strata of the society. And most measures to fight ‘piracy’ have failed. The safe harbour that was build for ISPs is, nevertheless, not unlimited.

Indeed, the enormous complexity of services provided by some operators have made it more difficult to tell whether an ISP is such, whether it is a content or a service provider, etc.

And we are still to find failures in terms of legality (of laws), proportionality, respect to fundamental rights, exemption of liability, etc. There is also a concern on how active preventive measures can still be neutral, or how traffic can be (fairly) managed.

Qian Tao
“Neutrality” Test on web 2.0 Platform for its intermediary liability in China and in Europe

The Tort Liability Law 2010 and the Regulation for the Protectoin of Information Network Dissemination rights are the framework for Internet regulation in China. They provide, like other laws, the safe harbour for web 2.0 service providers.

In order to harmonize different opinions in different courts, the Higher Court of Beijing issued a guide to help the courts take the correct decisions. For instance, the “No direct financial benefit” guideline: even if there are ads, if there are no charges to download/see the video, there is no infringement.

Those guidelines, though, are just guidelines, thus are not compulsory and only apply for the Beijing region.

Benjamin Farrand
‘Piracy. It’s a Crime.’ – The criminalisation process of digital copyright infringement

The criminal enforcement directive seemed to be dead, but the Pirate Bay case sort of brought it back to life. Piracy is increasingly linked to theft, to organised crime, to terrorism. Notwithstanding, research shows that online piracy is not likely to be linked with organised crime or terrorism. We cannot even find what is the methodology used to calculate the (real) losses for the industry of counterfeit material or how damaging is piracy in general.

There is a need for re-assessment, and law-making on the basis of empirical evidence and concrete studies – not industry lobbying. The Hargreaves Review (2011) states that in the case of copyright policy, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes.

Track on Net Neutrality
Chairs: Rodolfo Tesone Mendizabal, President of the SDTIC (Information and Communication Technology Law Section at the Barcelona Bar Association)

Helena Nadal Sánchez
Without Net Neutrality, where then the universal logic of innovation?

Postmodernism is based on neo-liberal ideologies that do not acknowledge the lockean concept of (necessary, public) control, or the habermassian concept of the agora, the place to meet and share insights and knowledge.

A sustainable development of the Internet should be agreed. Knowledge societies cannot be built if knowledge does not flow freely. The basis of innovation is not only talent, but the exchange of knowledge.

David Arjones Giráldez
Net Neutrality from the perspective of its layer-based architecture: from public carriers to content managers?

The layer-approach to define the Internet is based on splitting it in different layers, at least three: physical layer, logic layer, content and services layer. There are three principles:

• Each layer must be fully regulated in its own.

An agent in a layer must not operate in any other layer.

• Regulation must be layer-aimed. A specific rule can apply to many of them, but they should not be designed with this goal in mind.

Within this framework, the problem of Net Neutrality can be approached different than usual.

For instance, if operators are tampering on content or services, they are going against the rule where agents cannot operate in but one layer.

Thus, the saturation of the network can be solved with a layer-based new pricing model, but without altering the rest of the layers.

Cristina Cullell March
Net Neutrality and freedoms in the telecommunications reform in the European Union: are they present in whole Europe?

The La Rue report (PDF, 140Kb) for the United Nations (May, 2011) states that access to the Internet should be as a fundamental right. How is Europe treating this right?

Key aspects of Net Neutrality that the EU has already include in their directives:

• Freedom of choice.
• Transparency.
• Quality of service.

European institutions before Net Neutrality:

• The European Commission thinks an open Internet is a major concern. Indeed, it guarantees the “freedoms on the Internet” of the European citizens, and informs the Council and the Parliament.
• European Parliament links Net Neutrality with Digital Rights.
• ORECE: member states are responsible for guaranteeing the neutrality in their territories. Guarantees the normative coherence and harmonization in the European Union. It publicizes good practices.

Does the EU require a complementary regulation on Net Neutrality? Surely we have to work harder on defining transparency and in setting a minimum threshold for quality of service.

José Manuel Pérez Marzabal
Open Internet, Net Neutrality and defence of the competence

There is some overlapping, a symmetry between antitrust regulation and the telcos regulation. And even if maybe the debate around Net Neutrality is not be a debate on the telecommunications’ market competition, more market competition undoubtedly favours major degrees of neutrality.

Clara Marsan Raventós
The Net as a public space: Is Net-neutrality necessary to preserve on-line freedom of expression?

It’s increasingly difficult to think about things one cannot do on the Internet. As a space, people are used to meet in that “space” regardless on who is actually providing the technological platform, only aiming at not being banned or filtered on that public space.

So, as a public space, the Internet becomes more important and the management of the information that populates is becomes a crucial aspect for the society.

Of course there are limits operating on the Internet, as public morality… as anything that already operates in the physical world. The problem being that while the Internet is truly global, such a thing as public morality is exclusively local, cultural, social.

The, which are the actors that can control the Internet and who can say whether public morality should or should not be an issue in the Internet?

There already is a vast array of tools that can be used for censoring content on the Net. And worst of all, those are tools that are decentralized and can be applied at different levels of the chain of content transmission. As tools are widespread, so are the different actors that can apply them in their processes.

Negotiation must then be a multistakeholder one.

Panel: The Net Neutrality debate: Stakeholders’ perspective
Chairs: Miquel Peguera. Senior Lecturer, School of Law and Political Science (UOC)

Maite Arcos. General Director of RedTel (Spanish Association of Telecommunications Operators)

The Internet is a complex ecosystem: there are content providers (e.g. digital newspapers), service providers (e.g. Google), facilitating services (e.g. PayPal), connectivity providers (telecoms), user interfaces (e.g. Windows) and the users. Most of these actors are interconnected, but content and service providers are (usually) not connected with telecoms, which has caused several problems between them, amongst which who pays for the intensity of usage of the networks and whether content and services should be served on a neutral basis.

And there is an increasing pressure on telecoms as traffic increases at highest rates year after year… while Internet access charges have been diminishing in real trends. Content and service providers have no incentives on providing “light” services (there is no “price” on the bytes they transfer). It ends up with operators not being able to catch up with investment needs to maintain a quality service.

Possibilities:

1. Stop investments, while degrading the service.
2. Increase Internet access fees.
3. Product and service differentiation.
4. New negotiation with service and application providers to look for new and more balanced agreements.

Telcos do not thing #1 and #2 are an actual possibility, so we should be exploring #3 and #4.

Andreu Teixidor. Director de estrategia editorial de BUBOK

The printing press did not change the way to publish writings, but changed the world, as the Internet is doing to ours. The Internet is changing how works are published, but also how will democracy be transformed, the way we feel, etc. So, neutrality is not about an industry, it is about how we share our future.

Ofelia Tejerina. Lawyer. Asociación de Internautas

A first problem, dire problem, when it comes to network regulation is that policy makers usually do not understand the new nature of a digital society.

There are prior stages to net regulation that have not been satisfied as transparency or accountability of telcom practices.

And this transparency and accountability has to be guaranteed by the Judiciary branch, not the Government and of course not the private sector. And it is the Legislative branch that has to find out how to update the laws that we are using and that are completely obsolete.

One of the most important reflections has to be around pricing:

• What are we really paying? Infrastructures? Content? Services? At what cost?
• Who should be paying? Should any prosumer pay when they upload (and not only download) content?

Discussion

Ismael Peña-López: why don’t we nationalize the infrastructures? Wouldn’t that be solving many problems at once? Arcos: the problem would then be who pays for the infrastructure, would it be taxes? fees paid by the operators?

Antoni Elias: another problem would be how innovation on infrastructures would be triggered by public initiative. Most innovation comes from competing infrastructures, which would cease to be if they were to be merged under a single public infrastructure. [own short comment on the latter is reminding what happened with innovation in railroads in the UK once privatized or in electricity suppliers in the US]

Chris Marsden: it is not true that most infrastructures are paid by private money, as many last milers already know, having to pay Internet access from their own money or being supplied by the government as part of their universal access policy. On the other hand, the investment is nothing compared with the insvestments in railroads in the XIXth and XXth centuries, while benefits would most probably be way higher. Concerning competition amongst networks, what is more common is that telcos do share networks and just rarely compete on that issue.

Javier de la Cueva: why is it that the OCED states that we have the most expensive broadband services? Arcos: Spain is one of the few countries where there is a real choice where to get your broadband service. Besides, quality standards in Spain are very high, but this is not taken into account in the measurements performed by the OECD.

Panel: The Net Neutrality debate: The Policy Options
Chairs: Miquel Peguera, Senior Lecturer, School of Law and Political Science (UOC).

Antoni Elias, Professor at ETS d’Enginyeria de Telecomunicació de Barcelona, Universitat Politècnica de Catalunya (Telecommunication Engineering School at UPC)
The debate on net neutrality: regulation-based policy options

Four stages that stress the Internet:

• Technical complexity
• Legal complexity
• Economic complexity
• A social engine

For all these reasons there are arguments enough to have a supranational structure to regulate the Internet. There is no solution on the issue of net neutrality without this supranational regulatory institution, as the Internet knows no borders. Especially when most communications run over what we generally call the Internet: and IP-based protocol with a name system regulated by the IANA/ICANN.

Telecomms used to charge by access to the service (line rent) and for each use of the service (e.g. minutes called). With DSL, the paying system changes and operators tend to be paid through flat rates. This change implies that the growth of usage is not (directly) associated with a parallel increase in income. Does this scale or is this sustainable?

If we compare the Internet with the printing press, what we might be facing now is how the Internet opens up a new enlightenment as the press did in the XVIII century. But, for this new enlightenment to happen, like the printing press, the Internet must be free from control.

Innovation and investment in networks are as important as the new applications, services, contents or devices. And, of course, traffic must be managed and users and services must be managed too. But managing is not discirminating: discriminating is treating different what is not, not treating different what is different.

Joan Barata, Professor of Communication Law and Vice Dean for International Relations and Quality at Blanquerna Communications School, Universitat Ramon Llull

Net neutrality is not (only) about technology.

There is a big difference between hetero-regulation and self-regulation. And self-regulation might not be enough, so external regulation may apply.

And it is not (only) about discriminating traffic, but also, for instance, about the design and functioning of search engines: how do they search, how do they show the results, etc.

The problem is that if we add a regulatory burden to the carrier, we are also adding to it the possibility to open and peak on the packets that it is carrying. So, we may have a trade-off between free competition and privacy or even security.

‘Reasonable’ discrimination is also a complex issue. It is not ‘reasonable’ to discriminate on a monopolistic basis, to avoid competition. On the other hand, it is not ‘reasonable’ to discriminate on a politics basis, banning specific ideologies. But, would it be ‘reasonable’ to discriminate if the user wants so? The FCC acknowledges that whenever the user has control over the discrimination, that is ‘reasonable’.

But the discrimination based on what you pay is not ‘reasonable’.

So, when we speak about regulations — and regulators — it may be a good idea not to design it to regulate networks, but also with the aim to regulate content, as net neutrality is a matter of both worlds: technology and society.

Ángel León, State Department for Telecommunications and Information Society
Net Neutrality: a critical vision of the normative approach

Why are we speaking about Net Neutrality when al the goals seem to be the traditional ones that applied to the regulation of telecommunications as we used to know them?

A first difference is using Net Neutrality and its regulation as a unifier of different problems or open topics on telecomm regulation. A second one is that Net Neutrality only applies to a specific kind of networks: the Internet. And a third one is that the regulation will apply regardless of the size or market power of the operator.

Most of the regulation on Net Neutrality focus on the quality of the service. But some obligations we impose on the operators just do not allow them to provide this quality service.

On the other hand, there are some practices that circumvent any kind of restriction, like being able to control the presence of the user at a given time, where is the user, knowing their capabilities to connect, being able to stablish different pricing systems, etc.

The usual Net Neutrality approach favours a layered model, with a neutral point of access, but a discriminating service. Indeed, it does not allow for priorities, or different treatment for different cases.

Internet represents a new paradigm which does not allow for traditional regulatory approaches. It’s value change has become so broad, that regulating only access or some specific checkpoints is almost useless.

Discussion

Chris T. Marsden: wouldn’t it be possible to try and sync Europe with the US? León: the problem is that laws and rules (norms, regulation in general) are two different things. And in the case of Europe, Laws are really behind providing an appropriate framework within which rules and norms can be designed. That is not the case of the US, where the FCC can act powerfully with a Law scheme drawn in 1996.

Miquel Peguera: what is the future like? Barata: one of the most important things will be being able to put the correct questions and being able to explain them to the population at large. Elias: the collapse of the network is not something that one can envision, but it is nevertheless a powerful argument against Net Neutrality. Indeed, it is the chaos and anarchy of the Internet what made it the rich space that it is. León: the citizenry wants an open Internet and governments should provide the framework for that to be possible. The question is how Net Neutrality can enter laws: as a right, a regulatory principle or a goal. And each one requires a very different approach.

More information

• El concepto de net neutrality y la tensión entre regulación pública y autorregulación privada de las redes, by Joan Barata.