Information Policy

Brazil: Access to Information Bill Moving Forward

Yesterday, the Special Commission that will process Brazil’s new Access to Information Bill was officially appointed. The new Commission is expected to review and revise the various versions of the Bill, and Members of Parliament are committed to approve a final version of the law by the end of this year.

ARTICLE 19, which participated in yesterday’s first session of the Commission, calls on it to operate in a democratic, participatory manner and to ensure that the law that is finally adopted conforms to international standards.

The Commission, whose membership includes a President and Rapporteur, was finalised yesterday and comprises of 18 MPs from different political parties. The Commission’s task is to review both the draft bills recently presented to Congress by President Lula, and also the proposal dating from 2003, which was originally presented by MP Reginaldo Lopes, and is already pending before the Lower House.

The Commission’s President, MP Jose Genoino, affirmed that both President Lula and the President of the Lower House of Congress, Michel Temer, have expressed an interest in seeing the final law adopted by the end of this year. Genoino told ARTICLE 19: “The Commission plans to work in a deeply democratic and radically transparent fashion”. Lopes avowed that the Commission, “needs to listen to the organised civil society and to learn about experiences in other countries.”

In order to mobilise civil society and to facilitate monitoring of progress on the draft Bill, ARTICLE 19 will soon launch a blog and a public campaign.

Now that the Commission is operational, ARTICLE 19 calls on its members to ensure that the review process is truly participatory and transparent, and to do all in its power to ensure that the law implements the constitutional right to information in accordance with best comparative practice and international human right standards.

Brazil Senate passes speedy Internet divorce bill

The Brazilian Senate has approved a bill that would allow consensual divorces to be filed and resolved on the Internet. The Senate's official news agency says the bill would speed divorce proceedings, allowing couples to split without lawyers or having to wait in line in court. Couples could file for legal separations, divide property and decide alimony via the Internet as well, according to the bill approved Wednesday by the Senate constitutional commission. It would have to be approved by the House of Representatives and signed by President Luiz Inacio Lula da Silva before becoming law. The Senate commission also voted in June to eliminate the required year of legal separation before a divorce can be granted.

http://www.ejc.net/media_news/brazil_senate_passes_speedy_internet_divorce_bill/

European Commission looks to pull the plug on illegal downloading

By Jim Brunsden

Industry encouraged to tackle internet piracy but consumer groups fear ‘back door' grab.

The European Commission wants internet service providers (ISPs) to sign up to voluntary agreements to tackle the problem of illegal internet downloading. But it is backing its invitation with the threat of legislation.

The agreements would cover creative content including films, books and music. The Commission envisages commitments by copyright holders to support new legal downloading services and commitments by ISPs to tackle piracy.

The Commission's internal market and services department held a working group meeting of ISPs, content providers, rights holders and trade unions on 6 July to discuss how to develop voluntary agreements.

A further four meetings are planned before the end of the year, with the next to be held in September. The Commission envisages that developing the agreements will take around a year.

Legal alternatives

The Commission's invitation said that “European-wide voluntary agreements... would seem to be in the common interest of all stakeholders since currently the development of new business models on the internet is hampered by the volume of illegal downloading”.

It added that “while future legislation should not be excluded at European level”, voluntary agreements are “more likely to result in balanced and proportional solutions”.

The meeting discussed gathering evidence of illegal downloading, the development of legal alternatives to piracy, deterrents or sanctions, and educating internet users.

The Commission's approach has been criticised by BEUC, the European consumers' organisation. BEUC is concerned that internet service providers may agree to suspend the internet access of persistent illegal downloaders as part of the voluntary agreements.

Draft legislation currently under discussion in France would introduce a ‘graduated response' system in which users' access could be cut off after they had received warnings that they were acting illegally.

Kostas Rossoglou of BEUC said: “We are really concerned by this working group as it might result in getting the graduated response by the back door.”

He said that the European Parliament had “strongly opposed” a graduated response during discussions with national governments this year on reforming EU telecoms regulation.

In his view, such a response “violates consumer's fundamental rights including the right to a fair trial, right to a presumption of innocence and right to privacy”. He also said that the working group “has not been established in a transparent way”. Fighting piracy

The creation of the working group has been welcomed by the International Federation of the Phonographic Industry (IFPI), which represents the recording industry.

Frances Moore, its vice-president, said that “all parties have to play their part” in fighting piracy, and that the initiative could help promote a “level playing-field” in Europe. IFPI estimates that, at present, around 95% percent of music downloads are illegal.

http://www.europeanvoice.com/article/imported/commission-looks-to-pull-the-plug-on-illegal-downloading/65531.aspx

Legal survey on freedom of information: Second edition translated into Russian

UNESCO launches a Russian version of Freedom of Information: A Comparative Legal Survey by Toby Mendel. This second edition has been entirely revised and updated, with more countries included in the analysis.

The study presents an international overview of best practice standards and analyses the laws of 14 different countries, including five new ones in the second edition: Azerbaijan, Jamaica, Kyrgyzstan, Peru and Uganda. The report concludes with a comparative analysis of the various laws and policies regarding the fundamental right to information.

At the launch of the survey in 2008, the author Toby Mendel declared that “since the last edition…we can now say that every region of the world has adapted right to information laws”. This evolution shows that the right to information is now internationally established as a fundamental right generated by freedom of expression. It is the main reason why this new version has been translated into several languages: it is currently available in French, Spanish, Russian and Nepalese. UNESCO is planning to translate it also into Arabic and Chinese.

The Russian version of the book, with its concrete examples, proves once more that access to information is one of the most important ways to ensure transparency in public administration, because it is a tool for citizens to hold their government accountable.

http://unesdoc.unesco.org/images/0015/001584/158450r.pdf

YouTube clarifies ban on privacy invasions, harassment and threats

YouTube has clarified the conditions under which it would remove videos that invade people's privacy or harass, impersonate or threaten them.

YouTube maintains 'community guidelines' and removes videos that are flagged by users as violating them. According to the site: "YouTube staff review flagged videos 24 hours a day, seven days a week to determine whether they violate our Community Guidelines. When they do, we remove them."

Those guidelines banned videos containing sex or nudity; hate speech; shocking or disgusting content; dangerous or illegal acts; copyright violations or inappropriate material involving children.

The company has now increased the range of activities that are barred to include, amongst other things, invasions of privacy.

"If a video you've recorded features people who are readily identifiable and who haven't consented to being filmed, there's a chance they'll file a privacy complaint seeking its removal," say its new guidelines. "Don't post other people's personal information, including phone numbers, addresses, credit card numbers, and government IDs. We're serious about keeping our users safe and suspend accounts that violate people's privacy."

It also said that material designed to harass people was not welcome. "If you wouldn't say it to someone's face, don't say it on YouTube," say the new guidelines. "And if you're looking to attack, harass, demean, or impersonate others, go elsewhere."

"Impersonating another user by copying someone's exact channel layout, using a similar username, or posing as that person in comments, emails or videos is considered harassment. If you want to keep your account, stay away from participating in any form of impersonation or harassing activity on the site," say the new rules.

The new guidelines also seek to govern the behaviour of people reacting to videos, not just to those posting them.

"Users shouldn't feel threatened when they're on YouTube," they say. "Don't leave threatening comments on other people's videos."

A YouTube spokesman said that the expansion of the guidelines was not "a new policy or a change to our Community Guidelines but rather additional explanatory material to help our users understand the Community Guidelines".

http://www.out-law.com/page-10239

Brazil: ARTICLE 19 Launches Analysis on Draft Access to Information Bill

ARTICLE 19 has published its analysis on the long-awaited draft Access to Information Bill was sent by President Lula to Brazilian National Congress in May 2009. The Bill seeks to implement Article 5 of the Brazilian Constitution, which guarantees the right to information. It provides a clear definition of the right to access information, but still has many gaps that need to be addressed before approval of the final text, according to ARTICLE 19.

The draft Bill fulfils a commitment made by President Lula during his campaign for re-election in 2006, and responds to historical demands by a range of civil society actors that have been calling for legislation to give proper effect to the constitutional guarantee. A special temporary commission will be formed to accompany the Bill’s processing within congress: this commission currently the appointment of party representatives, and will then be immediately operational to allow the continuity of analysis of the Bill by the other members of congress.

The includes a clear statement of the right of access to information, as well as tight timelines for responding to requests, strong notice provisions, absolute openness in relation to information concerning human rights protection and violations, a progressive system for classification of information, good rules on sanctions for obstructing access, and important extensions of protection for whistleblowers.

At the same time, ARTICLE 19 believes that the Bill could be improved. Our most serious concern is that it fails to provide for an independent administrative oversight body, such as an information commissioner. Other key concerns include the lack of any definition of the public bodies governed by it, the fact that the access law fails to override secrecy laws in case of conflict, the fact that decisions on access are made by reference to classification, rather than on the basis of the harm that release of the information would cause, and the absence of a public interest override in the law.

ARTICLE 19 calls on the Legislative to speed up the review process by immediately setting up the Special Commission, as well as to guarantee broad public participation in the process. We also urge Brazilian parliamentarians to ensure that the law which is adopted complies with international standards in this area.

http://www.article19.org/pdfs/analysis/brazil-memorandum-on-the-draft-bill-on-access-to-information-of-brazil.pdf

Anti-Spam Law in Peru

Peru passed Law 28493 on April 12, 2005, to regulate spam. The National Institute for the Defense of Competition and Protection of Intellectual Property (Indecopi- Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual) is the competent agency for enforcing the regulation.

Law 28493 (the Spam Act) was enacted on April 12, 2005, to regulate the use of unsolicited commercial e-mails, commonly known as spam. Supreme Decree 031/2005- MTC is the implementing regulation for the Spam Act, issued by the Ministry of Transportation and Communications on January 4, 2006. Indecopi is the competent agency for enforcing the Spam Act regulations. The Spam Act empowers the Peruvian Commission for Consumer Protection and Indecopi to set fines according to the law on consumer protection and the standard for advertising to defend the consumer.

Under the Peruvian Spam Act, spam is illegal if it contains false or misleading information, or if the sender of spam does not comply with opt-out requests. Practical application of the above provision includes situations when the spam contains a false name, identity information, or deceitful information in the subject field that does not coincide with the content, or if it was sent to the recipient more than two days after he or she made an opt-out request (Art. 5).

Unsolicited commercial, promotional, or advertising e-mails must include the word "advertisement" in the subject field of the message and must contain name, domicile, and e-mail address of the person or company sending the message, which the recipient can use to opt-out and avoid further advertisements from the sender.

The Spam Act gives e-mail users the right to reject or accept commercial e-mail. The user also can revoke the authorization for receipt, except when such authorization is an essential condition for the provision of e-mail service. The Spam Act does not specify whether the user has to grant his express authorization to receive spam (opt-in), or reject it once he has received it (opt-out). Internet Service Providers (ISPs) offering e-mail services must offer blocking systems and/or filters for the reception and transmission of unsolicited commercial e-mails through their company’s servers.

The recipient of spam can bring suit against the sender and request monetary compensation, which can be equivalent to one percent of a “tax unit” (UIT) for each of the illegal e-mails, with a maximum limit of two UITs (Art. 7). One UIT is equivalent to S$3,450; around US$1,100 as of December 2008).

http://www.ibls.com/internet_law_news_portal_view.aspx?s=articles&id=40DDEE91-7EF9-432E-A17D-EAB27DF62037

Electronic Signature Under Spanish Law

Alain Megias, IBLS

The European Directive on Electronic Signature has been implemented under Spanish law by the Royal Decree Law 14/1999 dated September 17, 1999 (“Spanish Act on Electronic Signatures.”) The Spanish Act sets out the general legal framework for the use of electronic signatures, recognition of their legal effect and the provision of certification services to the public.

This Act should foster the development of e-commerce in Spain. It provides that electronic signature has the same probative value as handwritten signature provided that it is secure. This Act also describes the procedure that a company manufacturing signature creation devices should follow in order to obtain a qualified certificate in Spain.

What is an electronic signature?

The Spanish Act on Electronic Signatures distinguishes electronic signatures and advanced electronic signatures. An electronic signature is defined as data in electronic form, associated to other electronic data or functionally associated with such data, used as a means formally to identify the author or authors of an electronic document. An advanced electronic signature is defined as an electronic signature that identifies the author and has been created using a method that the author has under its exclusive control and is uniquely linked to that author and to the data to which it refers, so that any subsequent modification of the data is detectable.

What is the fundamental principle of the Spanish Act on Electronic Signatures?

An advanced electronic signature is deemed to comply with all the necessary requirements for legal validity if the qualified certificate on which the signature is based has been issued by an accredited certification service provider and the secured signature creation device used to generate the signature has been certified.

What is a certification service provider?

A certification service provider is an individual or organization that issues the certification on which the electronic signature is based. The Spanish Act on electronic Signatures applies to all certification service providers located in Spain. Certification service providers may issue qualified or non-qualified certifications. Non-qualified certifications are electronic certifications that link signature verification data (i.e.: public key) to a signatory in order to confirm her identity. Qualified certifications are certifications that contain information required by law, such as the powers of the signatory, a unique identification code, etc.

What requirements apply to certification service providers?

Certification service providers must comply with a number of requirements. They must, for instance, apply for their registration at the Certification Service Providers Registry prior to the commencement of their business activities; verify the identity of any individual applying for certification; and provide the signature creation device and the signature verification device. If certification service providers are to issue qualified certifications, they must also comply with a number of additional obligations. They must, for example, provide a reliable service by guaranteeing to customers a rapid and secure service; employ qualified personnel; keep relevant documentation for 15 years; and provide a bank guarantee or insurance policy of 4% of the value for which the use of each certification issued is limited.

Certification service providers and certified electronic signature products are accredited by the General Secretary for Communications.

http://www.ibls.com/internet_law_news_portal_view.aspx?s=articles&id=385D124E-ACB5-4D35-BE45-95912CABA379

Iran internet law sparks suspicion

Iran has passed a new internet law that experts fear will make information on internet users more readily available to the authorities.

Press TV, a news channel funded by the Iranian government, said on Monday that Mahmoud Ahmadinejad, the country's president, has issued an order for the implementation of the law.

According to Press TV, the cyber law would provide internet users with "more security", as internet service providers are required to save all data sent and received by their clients for at least three months.

But critics of the legislation say the stored data would enable the authorities to monitor internet users, including anonymous bloggers opposed to the regime in the Islamic republic.

'Censorship tool'

Rob Faris, a research director at the Harvard University's Berkman Centre, told Al Jazeera that the new law could serve as an additional tool for the authorities to keep an eye on cyberspace.

"Given how internet savvy the young Iranians are and the help they are getting from Iranian expats, whatever law Ahmadinejad passes, there will be a way round it"

Potkin Azarmehr, Iranian blogger

"For blogs that include restricted content, this legislation could give authorities one more way to go after them, though this doesn't seem needed.

"The government has not been constrained in the past by a lack of legal instruments."

But the government insists the law is aimed at reducing cyber crimes and providing surfers with more security in cyberspace.

Qorban-Ali Dorri-Najafabadi, the prosecutor general, said on Sunday that the law would protect the rights of the people and prevent violation of their privacy in cyberspace.

Faris agreed that the law could help tackle pornography and other "forbidden" content hosted within Iran.

"If this legislation is indeed used to prevent fraud and privacy violations, this could be helpful." he said.

Post-poll turmoil

The law comes amid continuing political tensions in Iran following a disputed presidential election on June 12.

The election, which saw Ahmadinejad returned to office for a second-term by a wide margin, tirggered widespread protests prompting the government in Tehran to severely restrict public access to the internet.

Social networking sites, such as Facebook, that enable people to communicate were blocked and mobile phone services disrupted during the height of the protests.

Reporters Without Borders, the Paris-based media censorship watchdog, has said the Iranian government is "aware of the growing influence of weblogs and is trying to restrict them by filtering sites that host them and set them up".

However, Potkin Azarmehr, an Iranian blogger based in London, said the plan to censor the internet might not work.

"Given how internet savvy the young Iranians are and the help they are getting from Iranian expats, whatever law Ahmadinejad passes, there will be a way round it," he said.

http://english.aljazeera.net/news/middleeast/2009/07/2009720132832678525.html

Survey Of Right To Information Laws In Latin America Released

A sweeping and comprehensive report detailing how laws in Latin America both limit and protect the public's right to know was released by UNESCO's office in Quito, Ecuador on 16 July.

The report, which was written by Toby Mendel, who is also the senior legal counsel at ARTICLE 19, surveys the relatively recent right to information laws in place in 11 Latin American countries, including Chile, Colombia, Dominican Republic, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru and Uruguay.

Making legalese accessible, the study provides a reading-between-the-lines perspective that highlights both the exemplary aspects of the laws, as well as the areas that require amendments or additions to ensure public interest is prioritised above the interests of governments and corporations.

A key shortcoming highlighted in the report is that many of the laws only apply to information deemed "official" or "public", rather than information in general. As a result, the legislative frameworks protect vast swathes of information from public scrutiny at the outset, as opposed to assessing information requests on a case by case basis.

"Access to information should not depend on the deemed usefulness or role of the information held," the report notes.

Another serious restriction on the right to information is that most information laws are subject to an overly broad range of exceptions. The exceptions often include information protected by pre-existing secrecy laws, which were implemented when the importance of the right to information laws was not acknowledged to the extent it is today.

The analysis also points to a number of progressive aspects of the information laws from the continent, which should serve as examples for governments across the globe. For instance, all right to information laws in Latin America decree that public bodies must publish certain key information, regardless of whether a request has been made.

The last two decades have seen an explosion of right to information laws in Latin America and across the globe. According to the report, only 13 countries worldwide had right to information laws in 1990. Now, legislation entrenching the public's right to know exists in 80 countries.

To read the full UNESCO report, visit: http://tinyurl.com/mdyl4s