[IRP] [Expression] appologies - input - multistakholderism & a telco meeting?

Meryem Marzouki meryem
Wed Dec 16 15:45:17 EET 2009

Dear Max and all,

First of all, there is no issue with any stakeholder, nor with any  
multistakeholder approach. The point is not who's speaking, from  
which constituency - especially when people are supposed to speak in  
their personal capacity - but what is argued. As far as I'm  
concerned, I'm used to discuss with governments, private sector  
representatives, NGOs and other civil society actors, or you name it,  
not only of course in informal discussions, but also in more formal  
settings where each one is officially representing his/her own  
organization or institution. You might be surprised to know that  
sometimes and on some issues, as an NGO representative or as an  
academic (which are my two usual "hats"), I find easier agreement  
with some governments or some company representatives than with some  
NGOs, simply because at some point we share a common understanding of  
a given issue. Thus, one should not take for granted that a given  
constituency share the same vision of a given issue: there are  
disagreements among NGOs, among governments, and even among  
corporates or industry sector when their interests are competing. I  
thought that was obvious. Moreover, the point is not to *believe* or  
not in a multistakeholder approach, just like if this was a new  
religion or cult. It is rather to have different viewpoints,  
interests and visions represented and discussed.

Second, we are here in dynamic coalitions on, respectively, freedom  
of expression and more generally human rights on the Internet. My  
understanding is that those who join a coalition have a reasonable  
prior knowledge of the main issue the coalition is dealing with, and  
share a common willing to advance the issue. For instance, the  
freedom of expression coalition is defined as aiming "to provide an  
open platform to further freedom of expression and the media on the  
Internet". Thus, one might be surprised when asked "to define limits  
of freedom of expression", even if through "best practices". At  
least, one might expect that others in the same coalition are already  
aware of the debates and controversies surrounding the issue with  
their main arguments and are taking stock of the achievements so far.  
Simply on the very subject of this thread: this has been debated, as  
I already said, for more than a decade. There are well known  
arguments, cases - including transnational ones - jurisprudences,  
experiments, legislation, codes of practice, declarations,  
recommendations, tons of academic and non academic papers, ... :  
everything you can imagine.
Obviously, no one is expected to know everything, but still, a  
coalition like this one cannot start from scratch and operate in a  
vaccum. There is nothing wrong though in being simply interested to  
know more about an issue, and experts in some fields are laymen in  
others. However, a coalition or a working group willing to achieve  
concrete outcome should not be confused with general public  
deliberation spaces.
Moreover, even if I'm wrong on this and the coalition should be  
understood as a public education and deliberation space, then it's  
even less acceptable to wake up one morning and come with so-called  
best practices to limit freedom of expression, with a national  
example qualified as a "best practice" without any debate nor account  
or any critical point of view (*this* is what I call a biased  
discussion), and a proposal to discuss whether it makes sense to set  
up a similar body at the global level.

Third, regarding language. Yes, it does matter. It does matter how  
one formulates an issue. It does matter to use precise language and  
not fuzzy, empty, trendy (?) words, for the discussion being  
unbiased, honest and rigorous.

Fourth, when someone comes with a "problem" or a "challenge",  
especially when already accompanied with a "solution", the first task  
is to analyse if this is a real problem or challenge, that would need  
to be socially addressed. Some deconstruction might help here. Even  
prior to that, what is the problem exactly? I've already noticed that  
there was a mix between two different issues: illegal content and  
harfmul content for some populations (say, children). You cannot deal  
with both issues in the same way. You cannot deal as well with all  
types of illegal content in the same way (an this is the reason why  
there are different laws, even in the same country). Does the  
infraction fall under civil law or criminal law? Moreover, is the  
problem national or crossborder? Here again, there is a (huge)  
difference: does the issue of the competence of jurisdiction need to  
be addressed or not? (list of questions not exhaustive). Most  
importantly, does the "solution" create other, possibly even more  
important, problems?

Five, we all agree that the legal process is long and expensive. But  
it provides for guarantees: due process, rule of law, transparency,  
etc. Moreover, it's a repressive (a posteriori, after an infraction  
has been established) process, not a preventive (a priori) one. Are  
the alternatives showing the same guarantees? To my knowledge (of  
European initiatives), they don't.

Six, you mention mediation bodies (I actually mean mediation between  
two parties, not gatekeeping here). They are indeed useful as dispute  
resolution means in some sectors and for some kinds of disputes,  and  
they already exist for non Internet as well as for Internet issues.  
But mediation has a legal definition: it is different from  
arbitration and of course from court decision. One main difference is  
that the mediation is non binding: a mediation body does not make any  
decision, it helps the parties to find an agreement. Even with this  
non binding character, there are issues with some mediation bodies,  
as the mediation might orientate the agreement so that one party is  
favored over the other. However, we're speaking of fundamental rights  
here. Moreover, sometimes it is not possible to find an agreement:  
have you ever seen an agreement reached between, say, a racist party  
and an antiracist organization? Not to mention that, when racism is  
forbidden by law and is a criminal matter (as it is in some  
countries), this is not an issue that should be dealt with through  
mediation or agreement: it must be decided by court.

All these are important points to frame the issue. In my opinion,  
they are valid whatever is one's general understanding of the need  
for regulation, and, more precisely, the need for social regulation  
of expression. Roughly speaking, there are two main positions among  
freedom of expression advocates: no, or yes but within the limits of  
article 20 of the international covenant on civil and political  
rights. Sorry Milton, but you'll have to suffer once more the  
opposition between the two positions, because it is real, not because  
of any stupid chauvinism. It is so real that USA has introduced  
important reservations to article 20 when ratifying ICCPR.. But yet,  
in practice and depending on the contexts and cases, this opposition  
is not always that clear and radical.


Le 15 d?c. 09 ? 13:10, Max Senges a ?crit :

> Dear Meryem, Milton, Ronald and all
> I understand that all three of you are veterans in this discourse;  
> I also see that there are many traps to avoid and that I have (like  
> everybody) much to learn.
> What I do not understand is why the German example I choose is not  
> an interesting starting point for a discussion about what means  
> would be useful to maximise freedom of expression while providing  
> institutions that allow to mitigate and resolve complaints?
> I am here to work towards good rights based governance solutions  
> and I am here to learn. If we believe in the multistakeholder  
> approach then we should all aim not to stigmatize stakeholder  
> specific language ( - which by the way I would have used exactly  
> the same 3 months ago when i was civil society - ) but have an  
> unbiased discussion. I have now learned that it is unacceptable for  
> experts to speak of "limits of FoE" but rather speak of "balance  
> between rights". I understand that language is important, but so is  
> a collaborative atmosphere where good-intentions and a shared  
> vision are presumed until the discussion shows otherwise.
> In both Milton and Meryem's posts did I see much critique but very  
> little in terms of ideas on how to address the challenges. Simply  
> to say that we have the UDHR and there are courts people can go to  
> is, in my humble opinion, ignoring the fact that the net has led to  
> an explosion of freedom of expression (as in the amount of globally  
> published information) and subsequently an explosion of cases of  
> hate speech, scandals where private information is spied out,  
> defamation etc.
> We simply do not have an institutional ecosystem that is capable of  
> dealing with all the cases. And I say ecosystem because I do think  
> that all stakeholders should play a role. Some elements are  
> legislatory and judicatory governmental instruments and  
> institutions, others are with companies through self-regulation and  
> alliances like the GNI, as well as individual netizens by  
> participating in the public discourse and possibly through being  
> "juryman" or "mediators".
> The last aspect is particularly intriguing. In my understanding  
> user generated content needs user generated governance (at least to  
> deal with the 90% of cases that don't go to court). Basically if we  
> want to maintain an environment where users can express themselves  
> freely (meaning with pre-screening) we need to develop a system to  
> resolve complaints that is reasonable and that scales. With  
> reasonable i mean that it causes reasonable burden while producing  
> reasonably good decisions. Hence it would not be possible to ask a  
> platform provider to hire sufficient specialists to deal with all  
> the complaints. This would a create a pretty high financial burden  
> that would have to be translated in higher costs, and it would put  
> the platform provider in a gatekeeper or judge position which is  
> also highly undesirable. What might be a good idea is to ask  
> netizens of good standing to help find a solution to a given  
> complaint. Mostly it would be a mediation between the opposing  
> parties, but it would be a first (semi-)formal step that might  
> resolve a good part of the many cases that never end up in court.  
> Basically what I assess is a rather significant gap between (1)  
> informal or conversational complaints, discussions and resolutions  
> around Freedom of Expression and (2) the possiblity to go to the  
> legal system and fight it out.
> Another aspect, which the freedom of expression debate shares with  
> all internet governance topics, is the question who's laws come to  
> bear if a chilenian expresses herself in a defamatory way towards a  
> russian in a thaiwanese forum, while on vacation in .... you get  
> the picture. The insitutional ecosystem I would love to talk about  
> should address this question.
> Allow me to close with a word of caution: I believe it is important  
> that we maintain a constructive multistakeholder dialog where  
> everybody, but esp. private sector and governmental participants,  
> feel encouraged to contribute, because if only civil society  
> experts are discussing and working together it is simply not  
> multistakeholderism.
> When there is a problem it needs to be addressed and I am the last  
> one to run away from a debate, but I want to work and learn  
> together with all of you not be lectured and told my suggestion (to  
> look at the German institutional setup to negotiate youth  
> protection and limits to freedom of expression) would be completely  
> unacceptable. It is surely true that the German setup is not  
> perfect, but it works quite well and it is transparent. I'd love to  
> learn about other setups that are more applicable and even more  
> interesting I'd love to hear from setups that scale and therefore  
> work on a global level.
> I am sorry that we started this discussion on the wrong foot, but i  
> certainly hope it will transform into a constructive one and I  
> would like to invite others in the FoE coalition to contribute.
> However given the current situation I would like to suggest that we  
> organize a skype/phone meeting to re-frame the conversation and lay  
> out a way forward.
> Best regards,
> Max (says: rewind my selecta)
> ---
> "The future is here. It?s just not widely distributed yet."
> ?William Gibson
> ...................................................................... 
> .....
> Max Senges
> Berlin
> www.maxsenges.com
> Mobile: 01622122755
> On Tue, Dec 15, 2009 at 3:38 AM, <KovenRonald at aol.com> wrote:
> Dear Max and All --
> I hesitate to join in this discussion. I certainly hope that by  
> agreeing wholeheartedly with Meryem's analysis, I won't compromise  
> her position in the eyes of those who think there's something  
> basically unacceptable about a position so generally accepted by  
> the US human rights community and under so much pressure amongst  
> Europeans who approve the French Revolutionary notion that "there  
> is no freedom without regulation."
> That position seems to be based on a deep insecurity over life in  
> an environment without detailed rules as well as a deep distrust of  
> humankind. The libertarian position is based on a hopefully not  
> misplaced confidence in human nature.
> I willingly admit that ?a se discute. What disturbs me about your  
> approach, Max is that it seems to be based on a growingly rigid  
> conviction that yours is the only logical or admissible position.  
> That's not a personal attack -- just my observation about how you  
> come to the debate. And nothing would please me more than to be  
> proven wrong.
> I feel very strongly that there is absolutely nothing wrong with  
> the word "libeeral" in the Anglo-Saxon sense and that the  
> conservative attempts to turn "liberal" into a dirty word are  
> intellectually obscene. Liberalism involves adherence to the values  
> of skepticism and doubt.
> But your pressing ahead as you seem to have done, Max, to promote  
> ideas regardless of any and all objections seem to indicate that  
> what I have always taken to be a liberal personality has been  
> neutralized by a non-liberal ideology.
> That's ad hominem, if you like, but that in and of itself doesn't  
> in logic mean that the observation is incorrect. I nevertheless  
> hope that it is indeed wrong. Please do prove me wrong by showing a  
> bit more willingness to consider on their merits the arguments of  
> those who have criticized your positions.
> I must reluctantly conclude that personal psychology does play a  
> role in discussions of this nature. We aren't talking about pure  
> logic because what is central to the discussion is attitudes toward  
> human nature, and that is intensely personal. Choice and  
> interpretation of data in such a discussion seems in the final  
> analysis to be a function of personality on a rigidity/flexibility  
> continuum -- a liberal-conservative personal psychology continuum,  
> if you will.
> Hmm. I didn't even realize that I thought that -- proof, I hope, of  
> a form of liberalism.
> Best regards, Rony Koven
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