Elisabetta Ferrari, a doctoral student at the Annenberg School for Communication and AnOx 2015 alumnus, discusses the Italian Declaration of Internet Rights, published on July 28th, highlighting some key issues with the declaration. Click here to read the full declaration.
Internet access as a fundamental right, net neutrality and the right to be forgotten: these are a few highlights of the Declaration of Internet Rights published on July 28, 2015 by a special Committee of the Italian Parliament. The result of a year-long process, the declaration is not intended to become a piece of national legislation (as with the Marco Civil da Internet in Brazil), but rather contribute to international debates about how the internet should be governed.
The Study Committee on Internet Rights and Duties brought together members of Parliament and external experts to prepare a draft released in October 2014. The Committee then held hearings with different stakeholders, including representatives from telecommunications and tech companies, and began an online consultation open to the public. The consultation lasted five months and allowed the public to comment on the different articles of the draft and to suggest altogether new items to be added. The amount of participation was not extraordinary—around 600 entries written by fewer than 200 individual contributors.
The now amended and improved declaration includes a few interesting provisions. In presenting it to the press, Speaker Boldrini insisted on the prominence of the newly introduced “right to Internet access” as a fundamental right (in Art. 2) and the introduction of a “right to online knowledge and education” (in Art. 3), which entails a responsibility of public institutions in “the creation, the use and the dissemination of online knowledge.” Article 4 contains relatively strong wording on net neutrality, prohibiting “discrimination, restrictions or interference.” Net neutrality is also considered “a necessary condition for the effectiveness of the fundamental rights of the person.” Another interesting innovation concerns the push towards interoperability, introduced in Article 12: platforms are obliged to give users a copy of their data in interoperable form, as well as to ensure, in general, the “appropriate interoperability” of their technologies with other companies’. Furthermore, the declaration follows the “Google Spain” ruling of the Court of Justice of the European Union in introducing the “right to be forgotten,” configured as the right to be delisted. The Italian Declaration – understandably – does not go beyond the CJEU ruling and thus does not really contribute to the discussion on the thornier elements of Google Spain. Article 5, on personal data protection, also follows EU legislation on the matter.
Article 10 introduces a right to anonymity, but anonymity in the article is primarily understood as the right to use anonymizing technologies. While it is surely important to assert the lawfulness of technologies for anonymization, such reliance on end-users’ capacity to anonymize their communications overshadows the discussion on how intermediaries should deal with anonymity – and pseudonymity – which is completely absent from the declaration. This is in contrast to recent cases in other European countries which have highlighted the issue of pseudonymity and intermediary responsibility. Article 10 is further complicated by its last paragraph, which holds that a court order might “require the identification of the author of a communication,” if that communication violates the rights and dignity of another individual (or in other cases set by the law). It leaves unclear, however, who would be required by the court to disclose what, and how this process would occur.
This problem with Article 10 helps to uncover what is perhaps the biggest weakness of the Italian Declaration: the complete absence of the language of intermediary governance, not just from the final text, but largely from the discussion of the Committee. An analysis of the minutes of the Committee meetings (available online, in Italian at http://www.camera.it/leg17/1175) shows that the first mention of the concept of intermediary liability is put forward by the representative of the European Association of ISPs and not by a member the Committee. (Funnily, the stenographic transcript of the meeting erroneously transcribes intermediary liability as “intermedia reliability.”) Leaving transcription mistakes aside, the lack of interest in opening a discussion on intermediary liability is particularly striking, given the volatile conduct of the Italian courts and the complicated EU jurisprudence on the matter.
The Italian Declaration speaks of “platforms”(Art. 12), and yet it fails to define what a platform is. Since it seems that the drafters primarily interpret the term to cover the services of companies such as Google and Facebook, it leaves uncharted how other categories of internet intermediaries (from ISPs to other types of content providers) should respect the rights of their users. In Article 10, as highlighted above, the declaration clearly envisions a role for intermediaries in disclosing the identity of a user, which entails the necessity for intermediaries to collect and store users’ data, logs, etc., in the event of the courts requesting this information. Yet, by ignoring the framework of intermediary liability, the declaration fails to recognize how different types of intermediary governance can significantly impact users’ experience and citizens’ rights. It is unsurprising that a proposal coming from an EU country would privilege the framework of data protection over that of intermediaries, but this is a serious setback for a project that intends to reach out beyond the European boundaries. The drafters of the declaration like to say that this is no Marco Civil – and indeed it isn’t, since a good deal of the Brazilian framework is in fact devoted to intermediaries, especially in light of the concerns about surveillance.
The Italian Declaration has its roots in a joint document issued by the Italian and Brazilian governments at the IGF in Rio in 2007, which called for an Internet “Bill of Rights.” It is only fitting then that a drafter of both documents, Professor Stefano Rodotà, will promote the declaration in a session at the upcoming IGF in Brazil. This could be a good venue especially to discuss the – now rather indefinite – criteria for “internet governance” that the declaration puts forward in Art. 14. While it is laudable that the Italian document attempts to define some principles for internet governance – notably transparency, accountability, accessibility and representation – it is still unclear what model of governance it is suggesting and how it could intersect the current international debate on the topic.
The drafters of the Italian Declaration hold that the document is “constitutional in its spirit” – and indeed it is more concerned with affirming the existence of rights “on the Internet” than in defining how different actors are responsible for the implementation of such rights. And yet, we need both: we need to discuss how technology and policy can go together in protecting and furthering fundamental rights. The Italian Declaration of Internet Rights, despite its weaknesses – chiefly on intermediary liability and internet governance – can be an interesting step towards a more constructive international discussion on how we can keep the internet open and free. But there is still room to improve.
- The text of the Declaration of Internet Rights http://www.camera.it/application/xmanager/projects/leg17/commissione_internet/testo_definitivo_inglese.pdf
- Do internet users need their own bill of rights? Italy hopes to pave the way http://www.zdnet.com/article/italys-bill-of-rights-for-the-internet-published-but-what-about-net-neutrality/
 For further reading on this topic, please see The Advisory Council to Google on the Right to be Forgotten, (2015), https://drive.google.com/file/d/0B1UgZshetMd4cEI3SjlvV0hNbDA/view and Aleksandra Kuczerawy & Jef Ausloos, NoC Online Intermediaries Case Studies Series: European Union and Google Spain 4–7 (2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2566364.
Elisabetta Ferrari is a Doctoral Student at the Annenberg School for Communication, University of Pennsylvania. She researches collective action, activism and digital technologies; she is also interested in how different social and political actors construct myths and narratives about technology – and how these relate to policy. Elisabetta has been involved in the international project Ranking Digital Rights, which focuses on the role of ICT companies in protecting and promoting the right to privacy and freedom of expression online; within the project, she has conducted research on telecommunications companies in Italy and Hungary. She also contributed research on the Hungarian social network iWiW to the UNESCO report “Fostering Freedom Online: the Role of Internet Intermediaries”. Elisabetta has a background in student activism and political campaigning in Italy. She holds a BA in International Studies from the University of Bologna (Italy) and an MA in Political Science from Central European University (Budapest, Hungary). Before joining the Doctoral program at the Annenberg School, she worked at the Center for Media, Data, and Society at Central European University (Budapest, Hungary).