[Chapter-delegates] Law & Contents control / Ecuador

[Carlos A. Afonso]

Carissimi,

Preemptive disclaimer: I am not a lawyer. :)

About a "regulatory function" of content providers, my vision is that if
they are providers of their *own* content of course they should be
responsible for it -- according to a basic principle that any content is
the responsibility of whoever *produces* it in the first place.

If a content provider hires someone to produce content for the provider
to publish (say, Terra, UOL, CNN etc) the provider may or may not be
responsible for it, depending on the terms of the contract (in which
case the disclaimer should always accompany the content).

A serious risk emerges when lawmakers confuse production of content with
whoever opens up an Internet space for this content to be disseminated
and automatically assign legal responsibility to the provider. So a
provider (say, a blog host) is not preemptively responsible for the
content posted by a blogger. In general there is a "loose contract" in
the form of a "terms of service" which the blogger agrees to before
starting to post (and I have never seen a list of "forbidden words" in
these terms of service).

So under no circumstance (in a democratic society) a host of content
services should be required to exert law enforcement power over users of
its service -- in the same way a highway operator is not responsible for
the content of vehicles going through it -- unless it has taken legal
responsibility over the content in question for itself beforehand. It
certainly should provide all information to law enforcers when required
by a due process of law and abide by legal decisions resulting from this
due process.

To base content censorship on a collection of words is a form of
policing which in many cases will censor the "wrong" thing. An ebook or
film publisher for instance would not allow in its stock American films
or romances with the word "fuck"? (Incidentally, would it be acceptable
that the host of this list censors this message?)

Lawmakers have a function, lawy enforcers have a function, content
providers have a function etc etc -- all these based on a constitution
of principles built by social consensus. This is how democratic
societies are organized. Imperfectly so, yes, but nevertheless still the
best alternative.

Of course in every situation there are the obvious extremes -- any
content provider not linked to the business of pedophilia would
obviously take immediate action if it identifies its presence in the
space under its purview etc.

IMHO

--c.a.

On 07/27/2011 12:52 AM, Carlos Vera wrote:
> Freddy and all: Now in Ecuador, the parliament is discussing a new
> communication law. It´s said for some sectors that the proposed text is
> trying to control free speech in any technological platform. In my opinion
> this is not exact.
> 
> Most main content providers has policies or self regulation or laws that
> work for them in issues such as the publication of some content that
> infringe laws or Intellectual property or have some words not permitted..
> they use to ban this kind of content using filters for such words or putting
> down some content (videos, pictures, words, etc) after some claim. For
> example we can have youtube not showing some videos in certain countries...
> or yahoo banning some words (like verga in spanish or fuck for example)
> automatically or manually under some advice or report. The same with
> facebook for example or google..
> 
> So this kind of regulations works in this way.. and it is necessary to have
> some way to law enforce the right of users or authorities so content
> providers  and infrastructure providers have the way to follow the law under
> certain circumstances.. so you have the way to control not maybe what people
> publish but what you maintain published after a warning..
> 
> No matter what, this is a political discussion with some people in one side
> and other people in the other so we need to understand how this works and
> that this exists already in most legislation all around the world.
> 
> Carlos
> 
> El 26 de julio de 2011 19:54, Freddy Linares Torres <freddylinares at gmail.com
>> escribió:
> 
>> Perhaps Carlos could give us more information.
>>
>> http://www.radiosucre.com.ec/index.php?option=com_content&view=article&id=16203:ley-de-medios-incluye-control-de-contenido-que-se-publica-en-internet&catid=1:politica&Itemid=24
>>
>> Saludos,
>>
>> -------
>> Freddy Linares Torres
>> ISOC Perú
>> Tel. + 51 1 997378646 | twitter: @freddylinares | www.freddylinares.com
>>
>> * Vía Digital http://blogs.gestion.pe/viadigital/
>>
>>
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> 
> 
> 
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