2011-05-13 A decentralized Big Brother

Authored by Juan Gabriel Gomez Albarello, Instituto de Estudios Políticos y Relaciones Internacionales, Universidad Nacional de Colombia. This article is available in Spanish in El Espectador.

The so-called “Lleras Act”, a proposal concerning intellectual property rights and access to internet in Colombia, prompts a discussion that has taken place in other places and which has led to various responses. I would not like to take the Colombian Constitutional Court's place and claim that, if Congress approves the current proposal, that tribunal would declare the Act inconstitutional. However, I would like to refer to the way in which the problem of granting adequate protection of basic rights such as the presumption of innocence and the freedom of expression was approached by the French Constitutional Council.

The proposal submitted to Congress by the Interior Minister, German Vargas Lleras (grandson of a former Colombian president, Carlos Lleras), proposes to protect intellectual property rights by means of restricting access to internet to those accused of infringing upon those rights. From the cultural industry's point of view, the most interested part in the profits that those rights generate, the protection mechanism included in the proposal is very ingenious: the individual or firm who feels affected by a violation of their intellectual property rights can complain before the user's internet provider and request a suspension of that user. If the provider refuses to do so, then such a provider would share the responsibility related to any violation of their rights.

The efficacy of the act is thus based on the providers' fear to become defendants in a case over intellectual property rights. A mechanism of this sort infringes upon the right to be presumed innocent. Those who support the proposal claim that internet users can go before a judge to ask for a protection of their rights. Yet, they would go to prove their innocence, something that contravenes basic principles of our legal order.

Not only that. The current proposal leaves open many avenues to restrict people's freedom of expression. Any internet user would be exposed to be suspended and even to see her access to internet cancelled on the count of questionable accusations, without having an immediate judicial protection. There shouldn't be any doubts about the fundamental nature of a right such as the freedom of expression, particularly at times in which many wrongdoings have been exposed thanks to the tenacity and resolution of people who publish many things on the web.

Precisely, these were the arguments on which the French Constitutional Council decided to withdraw constitutional validity to the Hadopi Act which created an administrative agency with the power that would be granted to internet providers in Colombia. The proposal's advocates claim that, unlike in the French case, the Act wouldn't create a mighty agency that would violate people's rights. I don't think so. I think that the proposal's scheme is of a decentralized Big Brother. Although this Big Brother would not be located in any building, it would not be less effective to restrict the way in which people exercise their rights. The proposal gives an incentive to internet providers to solve all doubts against users in order to avoid further responsibility. Here is where the snake's egg is incubated. Here is where Big Brother lurks against our rights.

Alarmist, paranoic, victim of his own conspiratorial outlook. I'm ready to endure all these epithets. I just want to be heard. Internet providers and account providers on the net are not the same thing, but the analogy is useful to estimate the potential negative effects that the Lleras Act would have on our rights if it is approved by the Colombian Congress. Facebook's policy of cancelling accounts of those who use a pseudonym has already taken a victim. Micheal Anti was the pseudonym of the Chinese journalist and activist Jing Zhao. Zhao lost his Facebook account and, with it, all the numerous contacts he accumulated over the years. Unfortunately, Zhao couldn't go before any authority to prevent that such a thing would take place. Now, let's consider the case of internet providers. Neither did WikiLeaks find any authority that could protect its rights when its provider, Amazon, decided to unplugged it from the net.

None of these cases are trivial. Without an opportune judicial protection, i.e. with an Act such as the one proposed by the Colombian government, our rights would be endangered. I hope the Colombian Congress will fulfill its function as a democratic forum and citizen bastion finding a proper balance between the presumption of innocence, the freedom of expression, and the intellectual property rights. If it fails, I hope the Constitutional Court, like its French equivalent, would accomplish this task.