Artigo “Comments to OECD on Information Intermediaries”
julho 20, 2009
Em razão de minhas pesquisas de pós-doutorado vinculadas à UC Berkeley School of Law e à Electronic Frontier Foundation, passei a fazer parte do Expert Group on Internet Intermediaries of the Civil Society Information Society Advisory Council (CSISAC), vinculado à Organização para a Cooperação e Desenvolvimento Econômico (OCDE).
Em 4 de julho de 2009, o CSISAC publicou o artigo Comments to OECD on Information Intermediaries, do qual participei como co-autor. Esse artigo foi submetido à OCDE e representa a contribuição oficial da sociedade civil para os estudos que estão sendo atualmente conduzidos pela organização.
O texto destaca a importância dos intermediários para o crescimento da Internet, as vantagens de um sistema jurídico equilibrado a respeito de sua responsabilidade, e os benefícios que eles proporcionam aos usuários, à economia e à sociedade em geral.
A íntegra do artigo está disponível para download, e encontra-se também disponível no Web site do CSISAC.
Segue, abaixo, o sumário:
Executive Summary
(…) In this document, we highlight civil society concerns in what we see as the three main areas of focus of the ICCP report – (1) The Scope of the Report – Categorizing Internet Intermediaries; (2) Social and Economic Benefits provided by Internet Intermediaries; and (3) Co-operative Mechanisms including Legal Approaches to Intermediary Liability.
Following is a summary of the points that are discussed in more detail below.
(1) Scope of Report – Categorizing Internet Intermediaries
- Internet intermediaries play an important role in making services from the offline world more affordable for consumers and by enabling greater consumer choice.
- A thorough analysis of the social and economic role of Internet Intermediaries requires differentiation not only by the function of the tool or service provided, but also by the technical architecture employed to do so, especially in regards to information transfer and processing.
- The role of Internet Intermediaries has evolved over time. The report should avoid a static definition and cover transmission (mere conduit) intermediaries, as well as information and tools providers whose main activity is providing tools for users to publish and retrieve information online, and financial intermediaries that facilitate online e-commerce and have been the subject of recent litigation.
- The report should include, but not be limited to, the activities protected under existing legal EU and U.S. frameworks, including the immunity provisions for online speech (section 230 of the U.S. Communications Decency Act) and the limitation of liability regimes for copyright liability (section 512 of the U.S. Copyright statute and Articles 12-15 of the EU eCommerce Directive).
(2) Economic and Social Benefits provided by Internet Intermediaries
- The Participative Web and Internet Intermediaries create externalities that positively impact the freedom and autonomy of Internet users in ways unique to peer production that cannot be accounted for in the market.
- Internet intermediaries have transformed our social and political world. They have made available new opportunities for creativity, community and access to government. Internet intermediaries have also enabled new models of Internet-based innovation and together with new ICTs such as wikis, have enabled new models of knowledge generation and publication.
- Internet intermediaries and Internet-related businesses are responsible for $300 billion of economic activity in the United States of America, generating 1.2 million jobs that did not exist two decades ago, and a further 1.9 million jobs that support those people with directly Internet-related jobs.
- The economic value of peer production and the autonomy of the individual are key to understanding the social and economic impacts of the Internet Economy.
- The ICCP report should emphasize the role of the Participative Web. Thoughtful empirical analysis will demonstrate that the social benefits of the Participative Web made possible by Internet intermediaries far outweigh any potential for technology to be used by users engaged in illicit activities.
(3) Co-operative Mechanisms and Legal Approaches to Intermediary Liability
- The current global legal environment poses a number of policy challenges both for Internet intermediaries, and those seeking to use technology to foster economic and social development. First, laws in different countries contain varying copyright exceptions and limitations and protections for freedom of expression. Second, there is little agreement and divergent case law about the application of private international law and conflicts rules to the Internet. Third, market developments have given Internet Service Providers incentives to unfairly discriminate among providers of content, applications, and service.
- The future growth of the Internet and its ability to reach its full potential in the economic, cultural and social spheres depends on OECD countries adopting legal regimes and regulatory frameworks that provide appropriate incentives for investment in the development of Internet technologies, while safeguarding the rights of citizens.
Appropriately tailored frameworks for limitations on liability of Internet intermediaries are the key driver of Internet innovation and the freedom and autonomy of individuals in the Information Society.
- Legal approaches to intermediary liability and limitation of liability regimes should provide a stable environment for technological innovation, but also preserve due process, civil liberties and the privacy rights of Internet users.
- Instead of focusing on the horizontal or vertical nature of limitation of liability regimes, which reflect domestic policy goals and the relative lobbying strength of different industries in the countries which have them, the ICCP Report should focus instead on identifying the particular values and social goals that should be protected.
- As more and more of our cultural and civic life is lived “online”, and depends on the existence of platforms such as YouTube, Facebook, and MySpace, discussion forums, wikis and social networking communities, limitation of liability regimes need to be assessed by what types of activities they facilitate for end-users, and not simply by their direct impact on the intermediaries involved.
- The relatively stable framework for technological infrastructure that has been in existence in the U.S. and EU since 1995 and 2000 and which enabled the creation of a wide range of Internet intermediaries, is now under threat from a series of copyright driven initiatives aimed at protecting what are increasingly perceived as obsolete business models that have not adapted to the challenges and opportunities of the digital era. These are already impeding investment in ICT research and development, and reshaping the technology innovation environment in OECD countries. In the longer term, they are likely to stifle Internet innovation and reduce the availability of ICTs that may fuel creativity, build communities, empower civil engagement, facilitate distance education, and foster economic and social development across the world.
- Internet intermediaries play a key role in facilitating citizens’ online freedom of expression. There are sound policy reasons for limiting Internet intermediaries’ liability or granting them immunity for comments made by third parties in order to foster free speech and the flow of information online. Overbroad notice and takedown regimes are susceptible to abuse and have imposed significant costs on Intermediaries.
- In providing its stocktake of legal regimes for Internet Intermediary liability, the ICCP report should consider the benefits of different types of regimes for meeting the needs of all Internet stakeholders and the various goals of the Seoul Declaration, including the protection of citizens’ freedom of expression and personal information, the development of innovative new Internet services and technologies, the promotion of competition and user choice, and the expansion of access to and use of the Internet infrastructure.
To develop a comprehensive understanding of the important economic and social benefits provided by Internet intermediaries and to identify the potential public policy challenges in Internet intermediaries’ role in implementation of the Seoul Declaration on the Future of the Internet Economy, we recommend that the ICCP report should:
- provide comparative analysis of the social and economic value attributable to the different Internet Intermediary safe harbor and limitation of liability regimes in use in OECD countries;
- provide comparative analysis of the respective impacts of immunity regimes, notice and takedown, and notice-notice regimes on protection of online speech;
- produce best practice recommendations on legal norms and policy practices for countries considering implementation of legislative limitation of liability regimes, and for entities within OECD countries that are developing policies and practices to implement such legal regimes;
- consider the importance of a non-discriminatory and open Internet for achieving the full benefits of the participative web and to level the playing field for competition that would facilitate convergence in digital networks; and
- produce best practice recommendations for legal norms that would prevent Internet Service Providers from blocking, degrading or discriminating against content, applications, or devices.
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