[IRP] The Challenge of Regulating the Internet

Eduardo Bertoni eberto2
Sun Jul 22 17:13:11 EEST 2012

Dear friends and colleagues,

Last week I published in Spanish an OPED about the challenges for Internet
regulation. For those that didn?t see my proposal there or for those who
are not fluent in Spanish, I pasted below the article in English (also
available at

I hope the article may be in your interest and I would be more than welcome
in receiving comments on it. I am preparing another piece with another
proposal that I will distribute soon.



*The Challenge of Regulating the Internet


This article was published in Spanish at La Naci?n (
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.

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