ICTlogy

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 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.