During the Internet Governance Forum 2017 in Geneva, MAPPING researcher Oskar Gstrein (OG) carried out an interview with Carlos Affonso Souza (CAS), co-founder and director of the Institute for Technology & Society of Rio de Janeiro (ITS Rio).
They discussed the European Union as an actor in Internet Governance, the right to be forgotten, net neutrality and whether “Code is Law”.
OG: How do you see the European Union as an actor in the current Internet Governance landscape?
CAS: I would say one could portrait the different regions like tectonic plates that move the continents.
However, while it is easy to go with this analogy I think the situation is more complex. It is not only a United States vision of the interplay of law and technology and on the other side the European vision of it. Rather, it is regulatory traditions that differ in specific topics. And of course, we need to put China, Russia and others on the table as well. Such actors might offer a third vision on a lot of topics.
Focusing on the EU, the interactions between the European Parliament and the European Commission usually produce very thoughtful in-depth analysis of key topics that also serve as a good starting point for discussions elsewhere.
For example, discussions in the Brazilian congress and other Brazilian bodies receive inputs from documents that have been prepared by the European Parliament or the European Commission. I myself was resorting to arguments that were made in documents from the European Commission or Parliament in issues such as the sharing economy, data protection or intermediary liability. I think this is the important role that the European Union as a whole has. In the case of Brazil it is also certainly necessary to mention, that our country is more aligned with the European tradition when it comes to civil law and other fields of law. When we enter discussions on privacy and data protection, we are naturally more inclined into an European perspective, because that is the way rights such as the right to personality are taught in law schools. But at the same time when it comes to technology, especially the internet, the United States have provided a lot of solutions early on.
On a personal note, I think the discussion on the so called “right to be forgotten” in the European Union might serve as a good and as a bad example. A good one, because it shows the power of one European vision in the area. It is impressive how, since the ruling of the Court of Justice in the Google Spain case in May 2014, we are still discussing the right to be forgotten under the terms that the European Court of Justice in Luxembourg laid out. However, I see a lot of problems how this and similar decisions are going to be implemented. I know that the General Data Protection Regulation (GDPR) of
the EU will be enforced soon which adds an extra layer of complexity. It will be interesting to see Europeans discussing what the right should actually be like and that will be important for other regions as well.
OG: I am sure you know the quote of Lawrence Lessig that “Code is law.” In 2017 and looking forward, do you think this statement has kept its relevance or has law finally caught up?
CAS: I think Lessig’s statement could not be more relevant and more present. Especially, because when Lessig ended up writing ‘Code and other laws of the Internet’, we have to remember before the book there was this article on the ‘Law of the horse’ in which Lessig begins to describe this whole system in which you have elements such as law, the markets, social norms and architecture. The four forces interplay with each other. Lessig’s image is still very powerful, because it will not only be the law defining the outcome. The economic reasoning might point in a different direction. Yet, we still need to consider other social norms and technology and architecture. This is just to say that even today, I don't think the law caught up to get into a position in which law alone will solve the problems. When I go back and read Lessig’s paper, I tend to pay more and more attention on the interplay between those four forces.
OG: Very fascinating. That leads us to the last question. With Christmas around the corner, what would be your wish for Internet Governance in 2018?
CAS: It has to be next year?
OG: The thing that you want right now.
CAS: I think in Christmas Carol there are three ghosts. The ghost from the past is the one that teaches you lessons from what you have done wrong in the past, the ghost from the present is a little bit frightening, but the ghost from the future is the one that scares you off the most. The recent decision on Net Neutrality by the Federal Communications Commission (FCC) in the US; I hope this is not the visit of the ghost of the future. What I wish for 2018 is that when we get Christmas we will have looked back and learned our lessons from the past. Brazil has very strong protection measures for Net Neutrality in the legislation in the Brazilian Internet Bill of rights. I would hate to see this being challenged just because momentarily the situation, the discussion in the US turns out to get this one result.
Carlos Affonso Souza has a PhD and a Master’s Degree in Civil Law from Rio de Janeiro State University (UERJ). He is a Law professor at UERJ and at Pontifical Catholic University (PUC-Rio), where he teaches Law & Technology, Contract Law, and History of Law. Carlos Affonso is a visiting researcher at the Information Society Project from Yale Law School. He is a member of the Copyright Commission at Rio
de Janeiro Bar Exam Institute (OAB/RJ) since 2007 and a Policy Fellow at the nonprofit organization Access. He is a Consultant at the Brazilian Internet Observatory, an initiative that stemmed from the Brazilian Internet Steering Committee (CGI.br). He is one of the Co-founders and a Director of the Institute for Technology & Society of Rio de Janeiro (ITS Rio).