The Challenge of Regulating the Internet

This article was published in Spanish at La Nación (http://www.lanacion.com.ar/1490316-el-desafio-de-regular-internet) Argentina, on July 14, 2012

The United Nations Human Rights Council recently adopted a resolution in which it affirms that both online and offline people should enjoy the same human rights, in particular, freedom of expression.  Exercising this right online has begun to appear on the agenda for public debate, although in our country, much like the rest of Latin America, concrete steps in this direction are few or are headed down the wrong path.

There are voices that argue in favor of regulating the Internet in order to protect freedom of expression, such as privacy and copyrights. Others advocate for Internet regulation to help eliminate child pornography and stop racist or discriminatory speech.  All of these are incontrovertible goals.  However, the way in which regulatory policies are implemented can become more of a problem than a solution when it comes to exercising certain rights.  With that in mind, I am proposing a simple idea that would help to avoid these unintended consequences. 

The lack of adequate regulation means that once the problems outlined above begin to concretely manifest themselves, policymakers turn to metaphors in the pursuit of solutions: “Internet is like mail,” so we can apply the laws that regulate postal communication; “Internet is a means of communication,” so we can apply the laws that regulate broadcasting and audiovisual communication; or “Internet is like the phone,” so we can apply the telecommunications regulatory framework.  The problem is that the Internet shares some characteristics with each of these technologies, but it is much more and it is different, so the direct application of rules not intended for the Internet generates negative effects when it comes to exercising fundamental rights.

So I am proposing that any Internet regulation policy be thought through with caution and situated in a framework that protects human rights. This would be the base from which regulation could be constructed.  The basic framework I am proposing is one that was articulated in a joint declaration by the Special Rapporteurs for Freedom of Expression from the U.N, The Inter-American Commission on Human Rights at the Organization of American States (OAS), the Organization for Security and Co-operation in Europe (OSCE) and the African Commission on Human and Peoples´ Rights.  The declaration, which was published in June of 2011, expresses fundamental standards that should be taken into account.

For example, the document points out that freedom of expression applies to the Internet just as it does to all other media, but that the regulatory approaches developed for other media cannot be directly applied to the Internet, but should be designed specifically for this medium.

It also affirms that those who provide Internet services such as access, search tools, or data retention in caches cannot be held responsible for content generated by third parties that is disseminated using these services assuming that the provider has not interfered with the content nor failed to comply with a court order that requires its elimination if they are able to do so. 

The document also makes reference to limits for blocking and content filtering, matters related to applicable jurisdiction for court cases, the importance of network neutrality and policies that should be applied to ensure broad Internet access.

Beyond the value this joint declaration has in terms of international and national law, Argentina, and other countries, could follow the Chilean example where in January of this year the Senate approved an Executive request to instruct the ministers “to begin developing public policies concerning access, use and regulation of the Internet, based on those criteria and recommendations contained in the Joint Declaration.”

Our lawmakers could sign onto a declaration with similar reach.  Or, the Executive could directly and formally adopt the criteria from the Joint Declaration.  With this simple idea, we would be laying the groundwork for the development of public policies related to Internet regulation that wouldn’t jeopardize fundamental rights that are guaranteed by our constitution and international human rights conventions.