Italy Pioneers An Internet Bill of Rights
BY Fabio Chiusi | Monday, October 27 2014
Italy lags behind most of its neighbors in respect to digital infrastructure and culture, Internet access and usage, e-commerce and e-government indicators. But when it comes to the drafting of an Internet Bill of Rights, it stands among the leaders, not the followers. Today marks the first day Italy will open the bill for open consultation via the Civici platform, the first of its kind in Europe.
The bill has strong roots in the way in which Italians have approached Internet governance issues in the last decade – the latest example being a public consultation that the government held in 2012 on the fundamental principles of the Internet. Now for the first time, Italy has produced a draft Declaration of Internet Rights, thanks to the initiative of the presidency of the Chamber of Deputies, a dedicated Committee of experts and members of the Parliament from the Committee on Internet Rights and Duties. The bill aims to inform the debate about online civil liberties and fundamental freedoms during the Italian semester of the European Union presidency, just like the Brazilian “Marco Civil” did globally last April, when it was passed into law.
Introduced to the public and to European deputies on October 12 to 13, the initiative was created with an international framework in mind. The draft, for example, has been published in Italian, English, and French. And its rationale is that “the many questions related to access and use of the Internet go well beyond national borders because of the very nature of the net and therefore, call for a coordinated effort at the international level.”
Since the bill is now open for public debate, it will therefore change substantially. But as it is now, it consists of a preamble and 14 articles that span several pages. Topics range from the “fundamental right to Internet access” and Net Neutrality to the notion of “informational self-determination.” The bill also includes provisions on the right to anonymity and tackles the highly debated idea of granting online citizens a “right to be forgotten.” Measures are taken against algorithmic discriminations and the opacity of the terms of service devised by “digital platform operators” who are “required to behave honestly and fairly” and, most of all, give “clear and simple information on how the platform operates.”
But why create an Internet Bill of Rights in the first place? The assumption is that “it would be both reductive and erroneous to consider the Internet a medium like any other. The Internet is much more.” This new legal terrain, in the mind of proponents, calls for a “precise responsibility,” which is exactly what the draft Internet Bill of Rights aims to provide. Former head of the Italian privacy authority Stefano Rodotà has been a long time advocate of a “Magna Carta” for the networked society, and he now has a leading role in the effort to create one in Italy. As committee member and journalist Luca De Biase puts it: “The process was quick but not from scratch. The planning has been set in a first meeting, and then we've been collecting all the existing material throughout the summer.”
The approach has been “pragmatic” says De Biase. A small team worked with Rodotà to gather input for the bill via email. Then an early draft was composed and discussed within the Committee. This lead to “some major adjustments.” Then the process was repeated, with a new draft, another meeting and yet other corrections. “The attitude has been very productive from almost everyone.”
“We've been talking about the necessity of an Internet Bill of Rights for many years,” writes Rodotà in an email exchange with techPresident. As an example, he recalls the “institutional initiatives” by the 2005 UN World Summit on the Internet Society in Tunisia, the 2009 International Governance Forum in Rio de Janeiro, and European Parliament in 2009. “The Berkman Center for Internet and Society at Harvard surveyed 87 declaration of rights from groups, associations and dynamic coalitions both in several countries and transnationally,” he explained.
Recent examples of Internet Bill of Rights include the Brazilian “Marco Civil,” as mentioned earlier, the crowdsourced Magna Carta for Philippine Internet Freedom and the “Digital affairs and fundamental rights” report from the French Conseil d'Etat (Council of State). The Italian example is very similar to both the Brazilian and French initiatives, according to Antonio Casilli associate professor of Digital Humanities at Telecom ParisTech. “It inherits several principles from the Marco Civil,” says Casilli, “from Net Neutrality to the focus on privacy.” He went to explain that the bill was “extremely striking in a positive sense that it also inherits the principle of ‘informative self-determination’ from the French report, a principle that is actually 30 years old, being initially introduced by the German Constitutional Court in 1983.”
There are differences, too, between Italy’s version and previous Internet Bills of Rights. The “Marco Civil,” for example, includes a glossary of terms while the italian draft has none. Also, one noticeable absence is that there are no provisions on the highly debated notion of intellectual property rights in the digital age. Rodotà says the void was created on purpose. “Since we're facing a truly complex issue, we decided to tackle it after the public consultation,” he says. But critics argue that this has not been a good choice. “The relationship between copyright law and freedom of expression now sits at the center of several decisions of the European Court of Human Rights,” says IT lawyer and intellectual property expert Marco Scialdone. “I was expecting an article stating the right to freely take part in the cultural ecosystem, together with that of having the interests of authors protected, in clear letters – exactly like in the Universal Declaration of Human Rights.”
Of course the text is not perfect, and that is why it will be open to consultation. Committee member Juan Carlos De Martin, co-founder and faculty co-director of the Nexa Center for Internet & Society at the Politecnico of Torino, highlights strengths and weaknesses in the draft. Strengths include both direct and indirect benefits, he writes via email. Among the direct ones is the right to education. “It may seem obvious,” says De Martin, “but in fact it is strongly innovative even at international level.” He argues: “I often talk about three digital divides: the infrastructural, the economic and the cultural. The right to education aims to tackle the third type directly, without the word “education” having anything to do with the ‘ethical State’ evoked by Committee colleague Massimo Russo.” As to the weaknesses, De Martin lists the present formulation of the “right to be forgotten” -- criticized also by the current head of the Privacy Authority, Antonello Soro -- as well as the provisions on anonymity. “Both are complex issues that I'm sure will benefit from the consultation,” he says.
Other critics argued that the very idea of an Internet Bill of Rights stems from a paternalistic, anti-market or even “socialist” way of thinking about the regulation of the digital ecosystem. But to Ben Wagner, Director of the Centre for Internet & Human Rights at European University Viadrina, he wrote in an email that “the issues addressed are reasonable and not necessarily anti-Market/Google/U.S. Corporations.” There surely is a typically European way of approaching some of the issues addressed in the bill, he argues, but to him “the question is more what legal status this bill will have once it has been completed. Will it be declared by the parliament? A binding legal document? How will it be implemented, if at all, in court? Is this soft law, hard law or not law at all?”
Wagner put it bluntly: “I don't see much additional utility in providing yet another Bill of Rights for the Internet” because it is “not likely to create substantive change.” For example, he notes that “the time of Italy’s Chamber of Deputies would be better spent drafting bills which prevent Italian companies like HackingTeam exporting surveillance technologies which enable human rights abuses across the world, or even to limit the massive use of domestic wiretaps in Italy.”
But some put forth a different perspective that says regardless of failure or success, just talking about the bill could be productive. “From a methodological and procedural point of view,” says Casilli, “these experiences are extremely interesting. Even if they fail, if they are not effective or change society overnight, they will eventually participate in a broader, social and historical dynamic towards popular participation.” However, Rodotà is satisfied with how the debate is unfolding. “Apart from some inevitable inaccuracies and excesses,” he says, “the discussion has started in the best possible way, involving high profile subjects and truly useful analyses and suggestions. The approval from international organizations, like Epic in Washington, is significant.” Hopefully, the results will be too.
Fabio Chiusi is a freelance journalist (Wired, L'Espresso), blogger (ilNichilista, Chiusi nella rete) and author who regularly writes about Internet censorship, surveillance and the complex relationship between digital technologies, politics and society. He tweets at @fabiochiusi.