Persistent practices and lessons learned.
The negotiation of the T-MEC between Mexico, the United States and Canada, which entered force on July 1 of this year (1) is the most recent example of a recurring practice: the regulation of human rights on the Internet through international trade agreements. During the negotiation of this treaty, Mexican civil society expressed its concerns about the similarity that some of the clauses proposed for the chapters on digital commerce and intellectual property had with Section 230 of the Communications Decency Act (CDA) and Digital Millennium Copyright Act (DMCA) respectively. They argued that if these provisions were adopted, the right to freedom of expression would be regressively affected. Furthermore, since Mexico did not have specific internal legislation regulating the liability of intermediaries, the risks of the T-MEC regulating the non-governmental organizations were even more evident. top-down an issue that was still under debate at the local level. Although public consultations were held on the negotiations, and officials from the Executive Power attended the Mexican Congress to explain their status and progress, civil society organizations were not part of said consultations. These types of limitations, posed by the agreement between the United States, Mexico and Canada, are not new and are repeated in bilateral and multilateral agreements throughout the region. The incorporation of Convention 108 that Argentina signed to achieve its adaptation in terms of personal data protection in 2019 does not escape this same logic either.
The Treaty in question and its implementation
The regulation of the liability of intermediaries in Latin America is generally an outstanding debt. Except Brazil, with its Civil Framework (arts. 18 to 21), none of the other countries has managed to establish a specific regime of liability of intermediaries for the content of third parties. Instead, in these countries, platforms such as Facebook or Twitter or search engines such as Google or Bing, are governed by the general principles of civil liability. This despite the legislative efforts that have been made in different countries to regulate this issue in accordance with democratic principles. (See celeup.org where the different projects in 9 countries are documented, including Mexico).
The Treaty between the United States, Mexico and Canada includes, among other issues, specific definitions and regimes regarding the liability of intermediaries on the Internet. In the chapter of Digital Commerce, provision 19.17 that refers to the responsibility of interactive computer services (defined as "any system or service that provides or enables electronic access by multiple users to a computer server") follows in general terms Section 230 of the CDA . The Parties recognize the importance of promoting interactive computer services for the growth of digital commerce and limit the liability of intermediaries for the content of third parties (excluding intellectual property), who store, process, transmit, distribute or make available except who have developed or created, in whole or in part, said content. In addition, countries may not impose liability on providers or users for:
(a) any action voluntarily taken in good faith by the provider or user to restrict their access to or availability of the material that is accessible or available through the supply or use of interactive computer services and that the provider or user considers harmful or objectionable ; or (b) any measure taken to enable or make available the technical means that allow an information content provider or other persons to restrict access to material that it considers harmful or objectionable.
The article establishes exceptions with regard to intellectual property, or relating to the application of any criminal law, or measures related to the breach by a provider or computer service of a specific legal order issued by a competent authority. A term of 3 years is established for the entry into force of Chapter 19.17 in Mexico.
In the chapter of Intellectual Property the liability of intermediaries is regulated by provision 20.89, which requires States to ensure the existence of legal remedies for copyright holders. On the one hand, they must create legal incentives to ensure that Internet Service Providers cooperate with right holders to deter the unauthorized storage and transmission of copyrighted materials. On the other hand, States must shield intermediaries from liability for infractions that they "do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf."
However, for intermediaries to enjoy these limitations of liability, specific conditions are established. Among them, they are required to withdraw or disable in a way expeditious access to materials hosted on their systems or networks when they take knowledge true of copyright infringement; or from a “notification and withdrawal” mechanism (notice and take down), when the owner of rights or any person authorized by him submit a notification (Article 20.89.3 subsections (a) and (b)). How do they explain Galvez and SearsUnlike other Treaties signed in the past by the United States that left the determination of the nature of the notification to the discretion of each State, both in the TPP and the T-MEC negotiations, a broad definition was deliberately included, which it explicitly excludes the requirement of intervention by a judicial or administrative authority. When an ISP removes or disables good faith Access to such material will be exempt from any liability arising therefrom, provided that you take reasonable steps, in advance or immediately thereafter, to notify the person whose material was removed or disabled. The article says nothing about ISPs having to prove that there was a copyright infringement to be exempt from liability.
The article mentions that the notification must contain information:
- That allows the provider to reasonable identify the infringing work or content;
- Give the provider a reliability sufficient regarding the ownership or authority of the copyright of the complainant.
The Treaty leaves the door open for each State to establish the appropriate procedures in its laws or regulations to achieve effective notifications of alleged violations and effective counter-notifications in cases in which the material is blocked.
Criticism
The regulation of intermediaries proposed in the T-MEC supposes the direct transfer of the American norms in the matter, including the CDA and the DMCA. Mexican non-governmental organizations argued that this regulation in the Mexican context constitutes a setback in terms of freedom of expression and access to knowledge. They argued that in its process of legal harmonization to the T-MEC the Mexican State “rushed” to approve a new copyright law without a sufficient consultation or discussion process which led to the campaign “Neither censorship nor padlocks”Which successfully demanded that the National Human Rights Commission present a action of unconstitutionality. The arguments used in the action focused on how the reforms threaten freedom of expression, promote online censorship and violate due process and judicial guarantees.
It is not uncommon or exceptional that some Free Trade Agreements or even bilateral ones include regulation on the liability of intermediaries. This is not uniform and differs depending on whether it is closer to North American standards or to European standards.
The DMCA model was intentionally exported by the United States through the negotiation of bilateral or multilateral FTAs to other countries, particularly in Latin America. (See, for example, Towards a Censorship-Free Internet, Karisma on Lleras Law o Digital Rights). In the United States, this mechanism for the export of standards is complemented by pressure exerted by the United States when issuing Annual Report 301 on intellectual property, in which countries are classified according to the standard of protection they grant to those rights (for example, Argentina is in its Priority Watch List). The Chilean experience exemplifies the dynamic: modification Chilean intellectual property law was guided by the standards agreed in the FTA between the United States and Chile; however, it adopted a restrictive criterion in its definition of notification and demanded that it be judicial. Since then, the United States has claimed the lack of implementation of the obligations of the agreement and includes it in its Priority Watch List.
Much has been written about him safe harbor and the mechanisms of notice and take down. The most important criticisms focus on the fact that these act as incentives for intermediaries to remove more content than necessary to avoid liability and this generates a negative impact on freedom of expression. Daphne Keller (Stanford CIS) in this regard argues that a company adopting the policy of “if in doubt, take it down” is simply evidence of the behavior of a rational economic actor that seeks to magnify its profits and reduce its losses (in particular when it is about those smaller companies). In addition, these mechanisms are criticized for lacking sufficient judicial review and encourage platforms to be managed with a greater margin of arbitrariness. Among other things, for example, as it explains digital rights, allow “copyfraud”, that is, the “elimination —without due process— of works that belong to the public domain, that are protected with licenses that allow their reuse or that are not the property of the plaintiff”.
The importance of regulating the liability of intermediaries, due to the direct impact it has on the freedom of expression of Internet users, is evident. When these types of regulations are negotiated by the Executive Power without the real participation of civil society and, worse still, when discussions and debates pending at the internal level are settled through a Treaty, as in the case of Mexico, they become evident the shortcomings of the existing negotiating mechanisms to date.
The negotiation of international Treaties and their particularities
The warnings about the regulatory consequences of signing Free Trade Agreements and their impact on current or potential regulatory powers are not new.
Obviously, it is up to each State to define its foreign trade policy as well as the necessary structure to carry out the negotiations. However, in recent years, the growing demands for transparency by the private sector, civil society and academia regarding trade negotiations, generally carried out by the executive branch, led the States to adopt consultation mechanisms. These mechanisms are mainly aimed at the private sector and, therefore, remain in many cases insufficient, but at least allow for the gathering of opinions, proposals and suggestions from non-state actors regarding the negotiations.
There are numerous examples of global consultation mechanisms. There is no consensus or uniform practice among States. This is due, in part, to the different levels of development, negotiating experience and political will of those who carry out these negotiations, as well as to the will, time, pressure, technical capacity and resources that the non-state sector can allocate to participate in these negotiations. However, in general terms, we can classify the existing mechanisms into three: those that take place in the pre-negotiation stage and where the convenience or not of starting a negotiation with a commercial partner is evaluated; those that come into action during the negotiation, in the assembly and negotiation of offers and texts; and, finally, post-negotiation consultation mechanisms, in the implementation stage of the agreement.
Although the demands for transparency that gave rise to the consultation mechanisms of the private sector were mainly motivated by an economic interest, in the case of civil society and academia, they were more focused on guaranteeing respect for human rights and promoting greater democratization and governance in the creation and implementation of international law. Clear examples of this are the claims made by civil society regarding WTO Ministerial Conferences and the negotiation of TPP or Trans-Pacific Partnership, among others. In fact, these last two sectors are the ones that generally warn about the potential risks of regulating, via trade negotiations, matters that should be part of a broader democratic debate. Especially when international agreements can negatively affect the implementation of public policies anchored in international human rights law as well as in relation to their own economic development. Some authorsThey even question the representation attributed in these cases to the diplomatic corps that negotiate this type of treaty.
Conclusion
The Mexican experience with the T-MEC recently clearly shows the relevance of multisectoral Internet governance. It also clearly shows the need to give broad and substantive debates on regulatory matters, particularly when it impacts human rights. The Inter-American System requires states that any limitation to freedom of expression be protected and clearly established in a law, in a formal and material sense. As well as that it is legitimate and complies with the principle of necessity and proportionality.
The organs of the System have been categorical when demanding public and open debates prior to the adoption of restrictive laws on the right to freedom of expression. They have also been particularly emphatic on the need to include multiple stakeholders in Internet governance when considering its regulation.
Notwithstanding the clarity of the aforementioned standards, in recent years many States in the region have adopted, for example, the Budapest Convention, adaptation agreements, or have incorporated or negotiated laws to be incorporated into the OECD (Colombia, Argentina). In many of these cases, the legal instruments were negotiated behind closed doors and without much local debate, and they included in their bodies norms that impact and affect the exercise of human rights on the Internet. The importance of monitoring these agreements and negotiations is fundamental. As well as the need to demand effective participation instances for civil society and other possible stakeholders in these debates, as the Mexican experience shows us.
Footnotes:
(1) As is publicly known, the negotiation of this agreement took place in a context of growing tensions and trade wars in the international arena that also involved the States Parties to the Treaty.
PhotoCredit: Caricaturasparausar.com @cartondetrizas
