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THE ROLE OF LAW IN FRAMING DEMOCRACY: THE CHALLENGES OF CYBERSPACE Samantha Ribeiro PhD Researcher European University Institute 07 de Maio de 2010.

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Presentation on theme: "THE ROLE OF LAW IN FRAMING DEMOCRACY: THE CHALLENGES OF CYBERSPACE Samantha Ribeiro PhD Researcher European University Institute 07 de Maio de 2010."— Presentation transcript:

1 THE ROLE OF LAW IN FRAMING DEMOCRACY: THE CHALLENGES OF CYBERSPACE Samantha Ribeiro PhD Researcher European University Institute 07 de Maio de 2010

2 Law and Democracy Democratic State of Law Democratic State of Law People rule: The authors and addresses of norms are the same. EVERYBODY

3 Traditional liberties Traditional liberties Guarantee of the citizen’s membership of the legal community Guarantee of the citizen’s membership of the legal community Due process of law Due process of law Welfare rights Welfare rights Equal rights of participation in the public debate. Equal rights of participation in the public debate.

4 Lawrence Lessig Democracy should not be a “perfect reflection of the present temperature of the people. Democracy was to be more than a string of excited utterances. It was to be deliberative, reflective, and balanced by limitations imposed by a constitution.” Democracy should not be a “perfect reflection of the present temperature of the people. Democracy was to be more than a string of excited utterances. It was to be deliberative, reflective, and balanced by limitations imposed by a constitution.” Code 2.0 (2006)

5 DEMOCRACY REQUIRES THE PROTECTION OF FUNDAMENTAL VALUES SOMETIMES EVEN AGAINST THE DEMOCRATIC WILL OF PARLIAMENTS AND PEOPLE.

6 Citizenship Divide

7 Cartoon by Peter Steiner published by The New Yorker on July 5, 1993

8 Access: Lan houses There are now lan houses in Rio (more than bookstores (2676) and theatres (2300)), of which 280 are in Rio slums in informality. There are now lan houses in Rio (more than bookstores (2676) and theatres (2300)), of which 280 are in Rio slums in informality. “When the first popular cyber café was opened in Rocinha, it was planned to work from 9h to 18h week days, and from 9h to 12h on Saturdays. The interest of the population was so intense, that they changed that first idea. The room with 22 computers is open from 7h to 23h, everyday, including Sundays. It is surprising to notice that the websites more visited are in English. In the rank of the websites more searched, the first one is the Discovery website, followed by the Cartoon Network’s”.[1] “When the first popular cyber café was opened in Rocinha, it was planned to work from 9h to 18h week days, and from 9h to 12h on Saturdays. The interest of the population was so intense, that they changed that first idea. The room with 22 computers is open from 7h to 23h, everyday, including Sundays. It is surprising to notice that the websites more visited are in English. In the rank of the websites more searched, the first one is the Discovery website, followed by the Cartoon Network’s”.[1][1] [1] 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 [1]http://metaong.info/node.php?id=362

9 Use: Freedom or control? Lessig: Code is Law. What does it mean? What is the point?

10 AWARENESS If code is law, we should ask who makes it and with what values. If code is law, we should ask who makes it and with what values. If code is not law, it should still be built in accordance with the law. The constitution should also limit the freedom of software and hardware makers, based on our fundamental values. If code is not law, it should still be built in accordance with the law. The constitution should also limit the freedom of software and hardware makers, based on our fundamental values.

11 Culture Freedom of speech, anonymity, liability, filters, censorship. Freedom of speech, anonymity, liability, filters, censorship. Democratization of expression: discourse, art, music. Democratization of expression: discourse, art, music. RW – R – RW RW – R – RW P2P - Piracy P2P - Piracy

12 Regulation? Equality may require regulation to silence some in order to give megaphones to others – minorities – cases of offense of dignity. (Owen Fiss) Equality may require regulation to silence some in order to give megaphones to others – minorities – cases of offense of dignity. (Owen Fiss) (US approach freedom) Copyrights law (US also limits freedom on these grounds) Copyrights law (US also limits freedom on these grounds)

13 China 1) Unbalanced development – digital divide 2) Online Censorship. The Government controls the internet according to Lessig’s model, through four modes: a) regulations and laws; b) technological architecture – filters and blocks; c) Social Norms – agreement with formal norms is required to log in and if undesirable content is found, there are warnings and bans to the poster and the Panopticon “all-seeing place” provides surveillance ; d)market – panopticon with law enforcement force business to self-censorship. 3) Irrational Discourse – nationalis, rumor. 1) Unbalanced development – digital divide 2) Online Censorship. The Government controls the internet according to Lessig’s model, through four modes: a) regulations and laws; b) technological architecture – filters and blocks; c) Social Norms – agreement with formal norms is required to log in and if undesirable content is found, there are warnings and bans to the poster and the Panopticon “all-seeing place” provides surveillance ; d)market – panopticon with law enforcement force business to self-censorship. 3) Irrational Discourse – nationalis, rumor.

14 Italy Google Vs Vividown Google Vs Vividown Tribunal of Milan : offendevano la reputazione dell’Associazione Vivi Down (…) consentendo che venisse immesso per la sucessiva diffusione a mezzo internet (…) e senza alcun controllo preventivo sul suo contenuto un filmato in cui persone minorenni, in concorso tra loro pronunciando la seguinte frase (…) ledevano i diritti e le libertà noanche la dignità degli interessati. Tribunal of Milan : offendevano la reputazione dell’Associazione Vivi Down (…) consentendo che venisse immesso per la sucessiva diffusione a mezzo internet (…) e senza alcun controllo preventivo sul suo contenuto un filmato in cui persone minorenni, in concorso tra loro pronunciando la seguinte frase (…) ledevano i diritti e le libertà noanche la dignità degli interessati.

15 E-commerce directive states that the providers should be liable for the post that they know to be illegal. (Art. 14) E-commerce directive states that the providers should be liable for the post that they know to be illegal. (Art. 14) Google’s claim: “La legge europea stabilisce il principio di segnalazione e rimozione di contenuti illeciti. Ed è ciò che abbiamo fatto“.Peter Fleischer Google’s claim: “La legge europea stabilisce il principio di segnalazione e rimozione di contenuti illeciti. Ed è ciò che abbiamo fatto“.Peter Fleischer Codice della Privacy – commercial use Codice della Privacy – commercial use

16 Brazil MP (Rondonia) Vs Google MP (Rondonia) Vs Google Orkut: Google was obliged to identify the users that uploaded the pages with bullying contents, had to pay a fine for each day that the content was still in the net and was obliged to make sure that no page with similar content would be uploaded.

17 Consequences What are the consequences of making providers, google, youtube, bloggers liable for the content posted? What are the consequences of making providers, google, youtube, bloggers liable for the content posted? Do we want to give this power to them? What are the implications of these decisions for the fundamental values we have? Do we want to give this power to them? What are the implications of these decisions for the fundamental values we have?

18 Conclusions The application of law in different contexts might generate results that deviate from the ones that were intended. The application of law in different contexts might generate results that deviate from the ones that were intended. The way internet is built will contribute to define what sort of society we will have in the future. The way internet is built will contribute to define what sort of society we will have in the future. Fundamental Law should always be interpreted and applied in view of its rationale. Fundamental Law should always be interpreted and applied in view of its rationale.

19 Conclusions If this rationale is not clear, the role of the jurists is to point out the ambiguities and the values to be balanced in order to provoke reasoning in public debate. If this rationale is not clear, the role of the jurists is to point out the ambiguities and the values to be balanced in order to provoke reasoning in public debate. Marco Regulatório Civil da Internet Brasileira – Project by the Ministery of Justice and the Law School of Fundação Getúlio Vargas of Rio de Janeiro Marco Regulatório Civil da Internet Brasileira – Project by the Ministery of Justice and the Law School of Fundação Getúlio Vargas of Rio de Janeiro See

20 Grazie Mille Samantha Ribeiro


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