Challenges and Best Practices for Internet Regulation in Africa and Latin America Center for Technology and Society (CTS/FGV)
30 September 2011 - A Workshop on in Nairobi,Kenya
September 30, 2011 - 10:30am
The following is the output of the real-time captioning taken during the Sixth Meeting of the IGF, in Nairobi, Kenya. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.
>> LILLIAN NALWOGA. Hello everybody. Well, I thank all of you to be here today. We are here to discuss about the challenges and best practices for Internet relations in Africa and Latin America.
I have -- well, I have the privilege to be with a very, very interesting panel here. And I would like to give the floor over to Pedro Less Andrade, Senior Policy Counsel, Google.
>> PEDRO LESS ANDRADE: I am Pedro Less Andrade, and I'm in charge of Public Policy and Government Affairs for Spanish speaking Latin America and also coordinating our team here at the IGF.
Joana Varon is the other co-chair of this session. She is researcher at the Centre for Technology and Society. CTSFVG. And she will introduce all the speakers on this workshop.
The idea is to have very quick interventions of the speakers, and really open up the discussion for the floor here.
We will limit our presentations to six minutes. I'm going to be very tough and try to keep the time here. So sorry if I have to call you. It's not personal.
And not for the content.
So please, Joana, introduce the panelists.
>> JOANA VARON: Thank you Pedro. Thank you for coming. We have Alex Gakuru, Chairman of the Internet Consumers Association of Kenya; Lillian Nalwoga; Alex Comninos from the University of Giessen; Eduardo Bertoni, Director of The Centre for Studies on Freedom of Expression and Access to Information at Palermo University.
I just want to bring some points, some questions that we could develop throughout our discussions here. I think that what we had in mind about this panel was thinking about the regular wave of regulations concerning the Internet that now we are facing. If we are focused on Latin America now, because -- in the perspective of cooperations and challenges, could Latin America and Africa be explored for their positive experiences, challenges, and paths for corroboration to have a free, open, secure Internet, where Human Rights are guaranteed and respected?
When I think about Internet regulations, I like to think like in this graphic. I believe that if you want to have a secure environment, a Democratic environment on the Internet, open to innovation and -- for citizens to express theirselves and to improve democracy, I think we have the main topics to assess, which is access both in terms of infrastructure and to content. So access to knowledge.
Within the discussion of access, I would like to frame the issue on net neutrality. And it's also, it's also related to freedom of expression, when is another topic that we must assess when thinking about Internet regulation.
And, finally, privacy. So, I'm from Brazil and in Brazil those topics are being discussed in different regulations or policies or draft bills. If we talk about access, now we have the national broadband plan and also consultations. Access in terms of infrastructure here. So, also consultations about regulating the quality of connection and of service. And another, consultations about competitivity in the telephone market. We are passing through a reform on our copyright law, which is being quite political, because there has been a change in the government. And we can discuss that later. But regardless of the internal relations, we are trying to push questions of the development agenda within committees like WIPO.
In terms of privacy, there is going on also a discussion about a draft bill on data protection and a discussion on the civil rights based framework for Internet in Brazil. This is specific to ISP liabilities and the other is specific to personal data, sensitive data.
And so those regulations are being -- is one nature that is the -- (Off microphone) we have discussion on the cyber crime law draft bill that is going on in the country.
To address freedom of expression on the net, and also the civil rights framework deals with this topic.
And also one thing that we have to have in mind is that all those three previous topics must be Crafted in a way that we still ensure an innovative and friendly environment for the Internet. So it's difficult. And I think to be very productive, to discuss this, how to achieve this balance, the experiences within our countries for it.
So this is just a brief discussion about Brazil. And just to mention, we are trying to do that in Latin America to compare the regulations. One case of filtering practices and studies in Latin America in which we selected a few countries, Brazil, Venezuela, Chile and Mexico and others, and we tried to make a table comparing the laws and mapping those laws, most important, to be able to see how each country is addressing the topic. So we map laws that deal with right to connection, net neutrality, hate speech, because we are dealing with freedom of expression here, and copyright, child pornography, blocking, and take down mechanisms. So I want to bring that just as an example as a study that we could develop better.
I'll pass it to PedrO.
>> PEDRO LESS ANDRADE: Thank you for the timely intervention. Now I will give a short overview of which is a regulatory environment in Spanish speaking Latin America. As you will see in the presentation, we have -- we identify basically four main areas. Freedom of expression, privacy, copyright that includes also all things related to safe harbors, and intermediaries that could be seen on the side of privacy but also as a general question of any kind of content. And the last, the fourth one, is net neutrality, open access and broadband.
We are here. We identified more or less more than 20 different issues or regulatory initiatives. So as you can see, the region is quite active in addressing the different issues that deal with Internet regulation.
In terms of freedom of expression, I'll give an overview of each of those, but one of the biggest highlights on this --
Something happened with the remote. Someone might need to reboot the remote participation. But should we continue or wait... I don't want to proceed without having the remote participation.
>> Pedro, I'll go get some help.
>> PEDRO LESS ANDRADE: Okay. Thank you. I will stop the timer.
>> ALEX COMNINOS: We will be locking the doors. You can't leave until the session is over. You have a lot to deal with.
>> PEDRO LESS ANDRADE: Are we all set?
>> GINGER PAQUE: I'll log-in on my personal account.
>> PEDRO LESS ANDRADE: Ginger, thank you so much. We are lucky that we have Ginger Paque here, who is one of the most experienced remote moderators for IGF.
>> GINGER PAQUE: There might be more remote participants than there are here in the room.
>> PEDRO LESS ANDRADE: Than are present. So for those remote participants, it might be -- that might listen to this, hopefully, it's -- we are -- do we have the connection?
>> GINGER PAQUE: They should be receiving the webcast. They just can't participate in the chat. So they should be able to follow and we can catch up with them. We can continue.
>> ALEX COMNINOS: Should we make a hash tag and they can continue on Twitter?
>> GINGER PAQUE: The hash tag is WS and then the number. IGF 11 and then also the workshop number is the tweeter.
>> PEDRO LESS ANDRADE: Okay. Well, we will continue and hopefully our remote participants can listen to us. Sorry for this. We have a problem with the electricity here.
So, we will continue with this revision of which are the main topics in terms of regulations in Spanish speaking Latin America.
So we start with freedom of expression. And the highlight of the year has been the joint declaration of the Rapporteur from the Americas, from Europe, from Africa, and from the United Nations, that they released a joint declaration on freedom of expression and the Internet. They set interesting precedents in terms of net neutral, interoperability, many of the issues that we will see here in different countries at the national level.
In terms of freedom of expression at the end of 2010, there were a lot of debates in Venezuela, and there has been a law known as Le Sorta, which addresses the issues of Internet content, Internet liability, and also tie some assumptions to ISPs for user-generated content. That has raised a lot of concerns in the Human Rights community and freedom of expression advocates and the organisation of American and state Rapporteurs. And freedom of expression released a statement with the US Rapporteur expressing concern about this law.
On the field of privacy, privacy is one of the most active issues in Latin America. So you can see, there is ongoing work in Mexico, Columbia, Chile, Peru, Costa Rica, and also Mexico is going to be the location of the world DPA conference, which is all the data protection authorities are going to meet in Mexico to discuss the future of privacy in terms of legislation and regulation.
Privacy has a very interesting dynamic in Latin America, because Latin America is in the middle of two very important economic markets. In fact, it's in the middle of three, because we can say that you have, in the east you have Europe, and the west you have Asia Pacific and then in the north you have North America.
So, the developments in terms of privacy has been always influenced with a discussion on trade. So sometimes many of the -- many of the discussions related to privacy come up in the middle of the discussions of agreements executed with Europe or in trade discussions related to OPEC or other forums that deal with trade issues.
So this is something that needs to be addressed in a way that there is no single model that over time will follow. We feel it's going to be a hybrid model between Europe, AP, and others that will suit the best interests of the regions, and it will also improve and attract investment and business in the region.
The third biggest issue has to do with corporate safe harbor reliability. We saw developments basically in Mexico, Columbia, Argentina, Chile, again Argentina, and Paraguay. Many issues. One of the latest things that happened has to do with Mexico. That is one of the countries right now that is a negotiating actor. And the senate took a very affirmative step in order to send a clear message to the executive branch, telling them that as the executive branch goes forward in the signing of the act agreement, the Senate will reject that action.
So, it's a clear message from the Congress to the executive branch, and they made a lot of criticism about the nontransparent negotiation process of actors.
In terms of Columbia and Chile, they are revising their copyright law. Chile was the first country in Latin America to pass the huge reforms that deal with Internet issues, and set up the first standard for notice and take down in Latin America, and they decided the standard that suits the best. The legal tradition of Latin America has been a standard of traditional notice and take down. In order not only to address the concern of the corporate holders, but also protect other rights that are recognized in the different -- in the Chilean constitution, it's a way to balance the traditional and take down, the analysis of the different Human Rights that collides in the Internet environment.
Then we have developments in terms of corporate levies. Basically, the models that we have in Spain, there was a lot of criticism in different countries about this, because it might increase the cost of technology and access of technology in Latin America.
And we lost power again.
Are we still connected?
>> GINGER PAQUE: I'm still connected.
>> PEDRO LESS ANDRADE: I will continue.
>> GINGER PAQUE: We have redundant systems.
>> PEDRO LESS ANDRADE: And then there are other developments that have to do more with the broader scope of reliability.
And other issues from a general standpoint, similar to the European directive of commerce, where it's not just a focus on corporate, that is the case of Argentina.
The fourth largest group has to do with net neutrality, open access and broadband. Chile is again leading in the region. They enacted the first net neutrality law in the world. And they already also enacted the corresponding enacting regulation and the law. It's already executed in the country.
It has really focused on information for the users, and there is a general provision of not -- no discrimination of content.
Many other countries are following the Chilean bill. We have two bills in Argentina and reform laws in Columbia addressing net neutrality and another bill in Colombia and Uruguay also following the law set in Chile. In addition, there are things that have to do with the recognition of access to broadband as a human right. And this has been, for example, has been passed in Peru and also in Columbia, there is right now a Bill in the Congress addressing this issue. So, this is -- you know, just to give you an overview of the complexity of the policy work that is going on in Spanish speaking Latin America.
One last note about this has to do with that many of our regions, we are really far behind in terms of Internet policy and Internet regulations. So, all this happened in a little bit more than a year. So imagine more than 20 projects in more than a year. And this is because we need to start to basically catch up with the lack of proper regulation. And this regulation is what will help, if it's good regulation, to develop the Internet ecosystem and get more people and businesses online and get more possibilities for access and growth.
Well, I will pass right now the floor to Eduardo Bertoni, who will address specific issues in Latin America. One of the core issues on interoperability.
>> EDUARDO BERTONI: Thank you, Pedro, and thank you very much to Joana and Pedro for the invitation to join this panel.
As it was said in the presentation of myself, I'm the Director of The Centre for Studies on Freedom of Expression and Access to Information. It's an academic centre founded in 2009 at Palermo University Law School in Buenos Aires, Argentina. So, it is not Palermo University in Italy. I always clarify that, because my last name Italian. So I'm not in Italy. I'm in Argentina. And the goals of the Centre is to provide rigorous research and studies to sectors of Civil Society, government, institutions and the academic community that is dedicated to the promotion of freedom of expression and access to information primarily in Latin America.
As part of -- I don't want to say more about the centre. I have some information if you want this information. But as part of our work two years ago, the Centre hosted the workshop "Freedom of expression on the Internet in Latin America." This workshop was within the framework of a project that we call freedom of expression on the Internet, which aims to explore the impact of Internet regulation, case law and policies in the region on the right to freedom of expression.
The topics that we are working were ISP liability, Internet filtering, retention and protection of personal data, and defamation and jurisdictional problems.
The pool of participants to the workshop was made up of professors, scholars and experts on Internet law from Latin America, Brazil. Carlos was there with us. Chile, Uruguay, and other places. It represented a cross-section of the legal community, including professors, practicing attorneys, representatives of the judiciary and NGOs. The program and people addressed a wide range of topics. The papers presented and the recommendations and conclusions soon will be available on our Web site.
Since I was asked to discuss in this panel the liability of ISP, let me mention some of our preliminary conclusions.
Of course, we don't want to reinvent the wheel. But the idea is, and I totally agree with Pedro Less, as I said in another panel, there are not many regulations in Latin America. But there is a movement to start the regulations. And what Pedro just mentioned is very clear that we need to be aware that something is going to take place in Latin America soon. So even though we don't want to reinvent the wheel, after our workshop we tried to put some conclusions and recommendations that came through the papers that were presented in the workshop. Particularly, as I said, on ISP and other intermediaries' liability, and the conclusions or recommendations or the preliminary conclusions and recommendations are that participants first agree that in Latin America regulation on ISP liability is scarce.
Responsibility of intermediaries should be regulated specifically. Our conclusion is that it is recommendable that regulations be unambiguous. When regulations are unclear, they may incentivize intermediaries to remove content for fear of being considered responsible for it.
Specific regulations on this topic requires consideration of the rights and rules in place in each area that could generate responsibility of intermediaries. Such as the areas of defamation, child pornography or intellectual property. The general regulation that attempts to cover all of these areas may be inadequate.
For criminal responsibility, although we are against criminal responsibility, when somebody is thinking on it, it's imperative that any criminal regulation adheres to the fundamental principles underlying criminal law.
When regulating the civil responsibility of intermediaries, it should be clear that Internet activity should not be considered risky and subject to strict liability. This is common in Latin America, that many judges and policymakers consider the Internet a risky activity, like, you know, driving a car or managing an atomic central form of electricity. And this is very, very problematic. Intermediaries can be exempt of responsibility and the take down notice. However, regulation under this model should consider that notices are judicial, that the creator of the content to be taken down is notified, and that a simple and expedited judicial process should be pursued in all cases.
Finally, the study of the obligation of intermediary to take responsibility for the removal of content is advisible. And this could be carried out obligatory, discriminatorily and with due process.
These are preliminary conclusions that we expect to have more discussion in the future in Latin America, particularly with policymakers, particularly with those people that are in the countries that Pedro Less Andrade mentioned are working on regulation on this area.
Let me finish with some -- with a clear example of what is going on in some countries, in my country, in Argentina, specifically, when we don't have regulation. And this is the case of more than a hundred injunctions by Judges that prohibited search engines, like Google and Yahoo, to Google or to search for particular names, most of them celebrities, that went through the justice system and said okay, my name is, when it's Googled, is leading to a site that I don't want to be directed.
And instead of initiating a case, judicial cases, against the site, they initiated the cases against the Google -- against the intermediaries, Google and Yahoo. Why they did that, it was very clear for the lawyers, it was just one lawyer, now there are more, but I think there was one lawyer and he thought it it was easier to go behind the intermediary than to go through -- to go against the Web site.
The Judges are not applying freedom of expression standards and this is what I want to highlight in the finish of my presentation. When they decided to issue the injunctions in most of the cases, not in all of the cases, they were dealing and applying, for example, the different thresholds that are in the American system and the Human Rights applied when freedom of expression issues involved a public person or private persons. So they are not applying freedom of expression standards. The decisions are in some situations contradictory. The first decision granted damages that was initiated, was repealed in a court of appeal, and now we are waiting for a decision on -- in the -- in our Supreme Court.
So the time is over and I apologize that I have to leave the room at noon, because my plane is departing.
>> PEDRO LESS ANDRADE: Thank you.
Now I will pass the floor to Alex Comninos who will have the perspective of the challenges of regulation from an Africa standpoint. Alex, you have the floor.
>> ALEX COMNINOS: If you could put that timer on, it would be great. I'm Alex Comninos, an independent researcher, and a Ph.D. Student at the University of Giessen, and I've been sent here through the economic partnership for the economic development and the southern African IGF.
I think that in Africa, it's different in every country, obviously, it's a huge, huge continent, many regions, but there has been a developmental focus and a developmental thrust to Internet regulation. And the communications regulators have tended to focus more on telecom regulation. This is understandable, because we're still trying to --
We're still trying to connect many people. If I give you the example of my region, Southern Africa, aside from Mauritius and the Seychelles, which are rich countries, which have -- they have 24 and 41 percent of Internet users respectively, Kenya comes next, with 20.98. Afterwards that's a big drop to South Africa with 12.3 percent Internet users. And then most are under 10 or under 5. Madagascar has 1.7 percent. So we are still struggling with the access issue. The access issue is the most important issue. And there has been great strides made in mobile. The majority of people didn't have land lines. This is a completely foreign thing. And what happened has been described as Leap Frogging, and that you Leap Frog the need -- well, you Leap Frog one particular statistic step and you go to mobile. Well, we went right to mobile. We can't neglect our infrastructure. Backbones are important. We have more fiber cables than we used to two or three years ago. We will have about 12 by the end of 2013. So access has been very important. And I think that the next Leap Frog that is possibly going to happen is the mobile Internet. People -- well, throughout the world, by 2014, there is supposed to be more mobile Internet users than fixed line Internet users. So that is a great developmental opportunity for Africa. And what I believe, what we want to do is to make sure that those who access the Internet just from a mobile phone are given the same quality of access as those accessing from a computer.
So whereas mobile phones have applications that smartphones in particular have applications that can allow you to do amazing things, we want to see smartphones with applications that allow people to do stuff that we need for basic economic development. I'm talking about word processing, writing CVs. I don't know if you know a good app for word processing.
And then net neutrality comes to the fore. On the mobile Internet, operators tend to want to decide what services they would like you to use, much more than they would on the fixed Internet.
Now, if you speak to many regulators and Internet service providers and mobile operators about net neutrality, they will tell you that you're being very silly and naive. And I can see a bit of the argument when you have limited resources, limited broadband. You want to slow down certain services. It's a normal thing, shape services. But what we don't want to do is encourage people to use certain platforms on the mobile phones, and I would call it -- to create a new divide between the mobile phone and the computer.
So there has been trend recently where there are Facebook offerings you can get from your operator, you know, a certain amount of unlimited -- a certain amount of Facebook free or unlimited Facebook, a certain amount of free megabytes on YouTube, and then of course there is Blackberry Internet service, which is quite popular in some African countries, including South Africa. And while it makes great economic sense to use it, we want to avoid the danger that certain services are encouraged and certain services are not. Recently in South Africa, Vodafone tried to say that Blackberry is not good. We will slow you down after you use 100 megabytes. So that is the point that I want to bring, that we really need to make sure that the mobile Internet is a quality experience.
There are a lot of issues, and I'm sure my colleagues will deal with it. But cross-border connectivity is a big thing regarding telecom and information. There is a lack of frameworks for dealing with what happens if I want to lay fiber from South Africa to Nambia and if I want to make a connection there. Usually we have to connect to each other through Sea cables or go to New York and come back again. So I think we have to think about how that would be regulated. And I think it's quite hard unless you have two fixed line incumbents connecting with each other that both have state approval. You can add that also cross-border microwave links and stuff like that. So it's an important issue that we need to work out.
The other thing, yes, a lot of the times I access the Internet in Africa. If you do a trace route, you see that I'm sitting in South Africa, I'm visiting a south -- sorry, a trace route is a command you run on your computer to see the different IP addresses that you request. And you often find that the thing goes to either New York or Europe and back. And I find that if I want people to access my Web site faster, in Africa, I'll host the thing in California, which is quite unfortunate.
So we want to encourage the development of Internet infrastructures in Africa. Servers, data centres, and other important -- and another important things, Internet exchange points. An Internet exchange point is when you have two ISPs sharing resources and requests, so that the one ISP can help you retrieve a Web Page without having to leave the country. Now, that requires some regulatory thinking.
And just to end off, there was a slogan that we used at the Southern African IGF, which was "keep local traffic local."
>> PEDRO LESS ANDRADE: Thank you, Alex. Thank you for keeping with the time, also.
And we are starting to see a lot of similarities in Latin America and Africa. Now, I will give the floor to Lillian Nalwoga, who will address another point of view from Africa as well. The floor is yours.
>> LILLIAN NALWOGA: Thank you, Pedro. I'm going to try to be brief and try to post questions to the participants, because I think the issues that we are facing as Africa and Latin America seem to be the same.
And my first question would be if we could just sit and reflect on what kind of Internet do we want in our regions, do we want affordable, reliable, fast Internet or the opposite to that?
And if these three issues are what we want, how are we going to achieve this?
When we talk about Internet regulation, before we even talk about regulating the Internet, we first have to identify what kind of Internet we want.
So, just in response to what is the way forward, how can we achieve the Internet that we want? I'll not go through most of the issues, because I think Alex has touched some of them in regard to access and affordability. But we may want to first invest in infrastructure development in order to address the issue of access, because we will not jump into regulating the Internet when we cannot even afford to have it.
And then on the issue of mobile Internet or connectivity, I think this is the end thing. But again when you look at the devices that are used to access the Internet, these expensive devices which cannot be afforded by the everyday person that we're looking at, under subcommunities, the local communities, so we are calling for a reduction in the cost of ownership in this equipment. We also need relevant and implementable cyber laws.
I'll tell you that in my country, in Uganda, and I think other east Africa liberals, I know in Kenya, we do have cyber laws. But people are not aware of these laws. The everyday person is not aware of the existence of these laws. You find that when you look at mobile money transfers, we have heard cases in my country, and I think it's the same thing in Kenya, where someone makes -- does a mobile money transfer and somewhere within the period of the transfer the transaction does not reach the other person. But then what does the law say about this? What does the mobile service provider say about this? This person doesn't know where to go, they can't say there is a law on ABC, I can go and report.
So if we talk about Internet regulations, we need to know that this is the law and this is how they can be accessed and they are available for everyone to access them.
On the issues of privacy and security on the Internet, yes, we are excited that we are able to connect. We are able to experience these fast speed.
Speaking from the East African region, we have the cables in our region, but then how are we using them? I mean, people are talking one social media, but how do we define content? The issue comes in, how do we define content? What is it used for? There is a lot of speech. You know, how do we define what is hate speech? What is the behavior? How do we control users known to expose too much of themselves? Or how do we get them to write without attacking each other? What does the law say?
Maybe we'll hear experiences from my African colleagues that are here about different laws, because I didn't go into that area to see what is happening in every country.
On the issue of freedom of expression, again we go back into -- we look at how do we protect user rights? I'll give an example. There are conflicting rules. I just did -- I researched two months back on Tanzania and the freedom of expression. Yes, the constitution says that this is an area that we agree upon. But the other laws that are supposed to lead us to that are somehow conflicting. There is no press freedom. So how do we address freedom of expression vis-a-vis the Internet rights and the issue of government protecting content?
And I'll just give one more example as I try to summarize on that social media, because I mean this is the way in which we are seeing citizens trying to participate online, and address some key concerns within government. I'll give you an example. We had items, I think, three months back when there were demonstrations in my country. And the government tried to block access to Facebook and Twitter, but the ISPs did not respond. So the way for it is we tried to have a multi-stakeholder engagement. If we have the law, let's try to bring in all the multi-stakeholders altogether, beat government, or the ISPs are on the users themselves. And the awareness creation about the existence of these laws to the everyday person. Because again these are the guys using those devices.
And one thing we could do to try to capture best practices, you say this is Latin America, how can we permit it in Africa? Does that country provide a -- a success story -- thank you. I'll just leave that to the floor.
>> PEDRO LESS ANDRADE: Thank you very much. Our last speaker is Alex Gakuru, who will finalize this round of presentations, and also addressing some of the challenges that we're facing in Africa.
Alex, the floor is yours. Thank you.
>> ALEX GAKURU: Thank you very much. I think with the speakers saying so many things that are important, I think they used the opportunity to just summarize and touch on a few issues. Starting off with the issue that Lilian just mentioned, Uganda, Facebook, that is an issue that arose at a freedom of expression conference that happened in June at Johannesburg. Google, the Frontier Electronic Group invited online writers, bloggers, who were trying to preserve free of expression.
In Africa, and I believe in Latin America and other developing countries, and I think around the whole world, is that the telecos, there is not much competition. I think America has about three mobile networks. There may be four, but they are merging. So competition in that regard is so few. And so what I've been -- what is almost a reality now is that you have to be politically correct to be in that area. And therefore you have to tow the line of the government or the powers that be depending on what jurisdiction you are.
In terms of public interest, who is actually minding the public interest? Because maybe the ISPs in Uganda couldn't speak because if they spoke their license would be revoked. Mobile operators have to do what they are supposed to do, regardless of how much it violates the rights of the people. I'm using that as an example.
We must look at ways of how we are protecting expression for what it is, that is a public good.
In Africa there are very few countries that have laws or regulation for online content. Information, child protection, et cetera, it's still a very gray area. The electronic evidence or record being admissible in court, and then the baton of that evidence being real, was it on a computer or a screen shot? Problems upon problems. And this is not just an African problem. You either take the tough technology cases or you show your smart cases.
Around the world it's difficult for people who are newcomers. When you look at a country like Kenya, I have an official count of people you can call ICT lawyers. It's less than 15. This raises questions. When we say that we are participating at a global Internet technology forum, which are by nature full of lawyers from developed countries, that are there advocating for the rights of their corporates, we have a problem. Things like culture, tradition, African heritage, which are things of public value and of public interest to us, have nobody to look after.
People even our participation in some of the fora because we don't have people who are probably well prepared to address those issues.
Now, we have been told, just in an earlier question, I said some of the foras are open or closed. Usually they have the lawyers, and they say that we are open, but indeed it's open and shut. Because even participation itself, you can't fund your participation. You are competing with corporate presidents and vice presidents who are volunteered in work groups. When you are a volunteer, you have to fund your time and your travel. And when you go there, you have to actually then face with those people. And if you are not funded by an international NGO, in which case you have to carry the opinion of that NGO from the developing country, you're not really representing the African view.
On the Net neutrality, I'm just touching on several issues. We also have problems where we are having certain features of services or devices being crippled. So you find, if I could just give a example simple, if a phone can have a Skype facility and then it can compete with a voice telephony, so the operators disable, I don't know whether they work together with mobile operators, so that you don't make a Skype call or similar services to somebody abroad, because they want you to make use of the expensive one.
We have video, I know the service called EVDO. The technology is so good you can use SMS, on multi-general at the same time just like you have DSL. But the operators make sure they only allow one on the Internet. So you have to have myriads of devices, where one would be sufficient. They only have the corporate position at heart.
Now, moving on to freedom of expression -- as I wind out, you find that the domain ratio in Africa, for every 90 domain names -- for every 90 people, there is one domain name. In Africa, the ratio is 10,000 people per one domain name. And then you find in Kenya, it's 2500 for one domain name. As of June, Africa contributed only 2 percent of the Web Pages, only 2 percent of the content online. This means that we don't have a presence online and we have a problem in terms of the expression that is being put online. It's not African.
We have to do a lot to make sure that our presence is online so we can see that the Internet is truly representative.
Thank you very much.
>> ALEX GAKURU: The final thing I want to touch on is one that is extremely dear to me that has to do with issues that have to do some developments happening in some of the countries in this jurisdiction. And in particular I'll talk about America. How come that a country can be allowed to make a law that has impact on all other nations? And in whose jurisdiction does the protection intend to work? In one country, they pass a law to take down a domain name in the world. Who gives them the right that you can stop Google or Bing or whatever, because they want to stop that site because it's -- for some reason one country decides that it infringes on certain rights of that one country. I want to ask that question. Because if we are going to allow that as an Internet community, it then means much touted innovation and openness and access and all those things are really not true. They are not going to be realized at all.
In Africa, we are continuing to be pushed into the digital plantation in this era of technology, just like we have always been for raw materials or labour. In this connectivity area, we will go into the digital plantations era and to carry with us several other people from different areas. You look at common names, you look for Swahili, pick any Swahili name you like. The names belong to other people. Our language.
So again it comes into the issue of ICANN and other issues that have to do with resolving disputes. We don't want to participate at Internet national fora, ICANN, GA, WIPO, when the Net effect of our participation is nil. We just go there to rubber stamp the decisions made.
So there is a case here for a south to south group being formed on the Internet where we look at all the issues that are dear to us, whether it's a caucus or a lobby.
We don't want to refine what it is, but all the issues that are important to us, we put them on the table to all the institutions, all the governments, UN agencies, all the ICANN authorities, and any other people who you feel threaten our interest, and this is a way that we can advance our interests in the region and to make sure that public interest overall has not taken a back seat.
Thank you. I took a minute and a half
>> PEDRO LESS ANDRADE: I thank all the speakers for the interventions. I know that people learned a lot. I want to open the questions for the floor. But before, I would like to do a wrap up on similarities that I encountered from the different regions, so we can work on those.
It was agreed that access is one of the biggest challenges for both regions. The difference has to do with, in some Latin America countries maybe, there is an infrastructure for access but we are trying to get better connections. And in Africa, there are still many, many places where there is no access.
And another similarity is mobile usage. Most regions are heavy users of mobile. And we are jumping directly to mobile in many cases. So the need of good applications in the mobile area is fundamental to the access, to ICT in our regions.
Another thing that we discovered is that both countries suffer from discriminatory mobile broadband plans that don't allow you to use the full extent of the Net. So sometimes you get mobile plans that have very good rates but lets you only access to a little part of the Internet, maybe only the most popular services and that's all. And this is against the openness and the openness character of the Internet and this marketplace of ideas, where the better idea become the more popular.
Another issue is lack of cyber awareness. And this is -- we can see this at different levels. We can see this in the users, in the teachers, in the family, in the judicial operator, the judges, the legislators. There is a very important need to start to do trainings on this. Train the different stakeholders on the nuances of cyber law.
We also identified that our legal communities with expertise on these issues are tiny in comparison to other developed countries.
We have -- many of us are professors or have a lot of contact with academia, and we know that there are a few universities with full programmes that really address the issue of Internet regulation or cyber law. We need to work on that as well.
And another issue to basically highlight as a similarity, it's also the lack of strong Civil Society movements in the different regions that -- there are not branches of groups from all developed countries. They started as, you know, locally. And they know exactly the nuances of the local problems. This is something that we still need to work on. And it will also develop in order to have a more local debate on these issues.
Well, we have an issue that has to do with the international arena, so how -- basically, the jurisdiction of the applicable law and how this will affect, for example, foreign relations. Because certain countries apply certain standards of copyright over critical Internet resources that is not territorially based, it may affect basically the rights of different countries. And that also has been addressed, the need to be able to use the different international foras not only to speak up but also to find out solutions to the problems.
Now, please, help us to enrich this debate with your comments. So the floor is open.
>> Thank you. My name is N. Pola. I come from Switzerland and I have a question for Mr. Alex Gakuru. You spoke about mobile phones that are locked to specific application programmes. We have the situation in Switzerland, and probably everywhere else also, but the impact is different. I learned to programme the computer and work with infomatics. And by tinkering with software, which I can do on a machine like this, I can install any software I like and I can choose to install one that I can modify that comes with source code and all of that. But with the mobile phone, how will you have involvement if your young people cannot tinker? And what will you do to give your young people the ability to tinker with software on the devices they use to access the Internet?
>> ALEX GAKURU: Since we are talking about openness, I think the Internet requires open software and openness. And that explains to you why Android is open, it's a popular platform, even here. And so applications developed on Android are gaining more and more popularity.
What I imagine is that then more devices coming from whatever country they will be, just like we had in another workshop, like China, where you tell them what software you want installed, maybe you give room to that so you can develop applications for free and open source software. And being an advocate of the same, I do believe that -- you do know that Kenya is good on mobile applications and some new programmes that we are hoping to launch on IPv6, so we are hoping to leverage more on that in terms of tinkering. But we are talking about the general handsets that are available in the market, imported as is. And as you say, it's a global problem in Switzerland and other countries.
I would like to refer to anybody interested in learning more or discovering more about this crippling of features and facilities by mobile operators, and a certain professor, Tim Wall, he has the wireless net neutrality, there is a working paper, he identified about the problems in the wireless net neutrality. Yes. Thank you.
>> I'm Stephanie from article 19 in Nairobi Kenya. Thank you for your presentation. Mr. Alex Gakuru in particular I found your discussion quite insightful. Currently, Internet rights in Kenya are not part of the Human Rights discourse. And so there is more of a technological drive. And so what is happening now is that in terms of expression rights and access rights, we're being more reactive to situations of restrictions. And there is very much an engrained reactive culture. So what I'm interested to hear from the panelists and people from other countries is did Internet rights stem post the technological or was it a parallel process that came together with the technological advances? And was it more reactive at first, like it's happening here?
So that is what I would like to take out from this session as we look to bring Internet rights to the fora and especially in the west African area.
With reference to what Alex Gakuru said about public interest, infrastructures were monopolized by government a lot in east Africa and other parts. So I feel we cannot talk about access rights without linking it to government, because it's just so heavily determined by the powers that be. So, any comments from perhaps the panel, both African and nonAfrican countries, on the impact of governance on Internet rights, on expression rights, and how those are overcome and sort of what challenges came up. So we would be able to apply them in our own context.
Thank you very much.
>> PEDRO LESS ANDRADE: Someone from the panel.
>> ALEX GAKURU: I think I'll just say in terms of public interest and Internet rights, the first thing I wanted to say is that competition ideally is the best case, the best scenario that allows best price, openness, and it allows different players to come into play out of the monopoly. We used to experience state monopolies in most African countries. But what has happened now is we have a private monopoly. They, in the handling of data, privacy, all information, they probably only care about the bottom line. So we used to have a problem of the state corporations being monopolies. But now we have to worry about a new problem of private monopolies. To break that, we need competition so the consumer choice and trust can be built among a cross-section.
As you can see, we cannot have more than four, even in America now. We have to look at new models that guarantee what is called open access.
Now, I don't know whether to say I'm happy or I don't know about the Kenyan state, whether it's going to be truly open, but from all indications we have been told that the LT license will be for open access. I hope that doesn't go for private control. If it ends up in private hands, it will not be very good.
In terms of expression of rights, I think that came later. Only one country in Europe that I know of that even made them part of their legislation, Internet rights. And IGF started way back in 2006. I think that was the first IGF. 2006, after that, maybe it was 2005, that was WSIS, so this development came later. So IGF has been effective in various other ways outside, and regional IGFs were formed, national IGFs are now -- now we are talking about south to south forum we might create here.
So IGF success may not be looked at directly as to whether the declaration is signed, but maybe achieving a lot more than what is physical to the eye.
And article 19, I think this is what we need is more multi-stakeholders, and not just for where I go and I just wear my geek hat and you don't know what I'm saying, because then you know the disconnect between the technology and the rights people is very different. Like Pedro said, we lack home grown solutions, home grown associations that stand for the local needs of the people.
We don't want an international organisation responding to us. When they go abroad, they are subdued. They are just repeating the issued statements from the foreign offices.
Maybe Lillian has something to add.
>> LILLIAN NALWOGA: Actually, you said it out in front. I won't doubt anything that you said. Thank you.
>> PEDRO LESS ANDRADE: Just one comment in connection with that. That we need to first solve the Internet Governance discussion in order to address Human Rights and other principles. I think that that will be ideal. But sometimes there are things that need to also be addressed very fast. And sometimes we don't have the luxury to wait for it, to solve the bigger discussions. So I think that depends. It will be great to be able to do that. But sometimes our needs -- there are things that need to be addressed in a very fast way.
So I know that we have some people, but we have -- we will now give the chance to the remote participants first, to express their views.
>> Okay. I've got one comment from a Seth Johnson, working for the ICO in New York. He says: I think the chief problem for governance of the Internet is the failure to insist on a federalism approach to statutory rights. If you insist on that approach, then we engage in (inaudible) you can do this and you'll be disregarded until you disengage from the governments, because you have to stress that the rights are statutory and it's necessary to clear the air so we can go forward with the interoperating and coming to conferences over the protocols and standards that empower us.
>> PEDRO LESS ANDRADE: Who would like to address that? It's more a statement than a question. But thank you for that.
I'll continue with the gentleman over there. Then we have a gentleman over there. And let me see. Okay. We have a lot. Okay.
We are going to close -- we will have 7 questions. So, I need that everybody is going to be very quick.
>> I'll make it very quick. Thank you, Pedro.
Some of the -- what I'd like to do is first make a comment and then a suggestion. The comment is to push back a little bit on some of the things that you've said, my brother Alex, because we worked together for a long time and I have a great respect for your position, about two things. One is that, as you know, I caucus with a lot of the African delegates when we go to the ICANN meetings. And I think you're right. Africa and Africa's interests are underrepresented. But I rarely see Africans who go to the microphone. And I hope that will change over the course of time. I know it's scary, because it's scary for me to do, but I think the only way that the interests will be widely seen within the broader community, which is established, is if people stand up and make some noise.
Probably not in a very rhetorical way. So, more -- less in a backward looking way, like looking at who owns the word "Safari" and in a more forward looking way. It's an argument that realistically it's impossible for us to win.
In terms of your discussion on open source, I heard you. But I heard the other piece that you said, which is the competition is best. I think what we really need is more, more open source, more closed source, more of everything here. One of the impressive things is the extent to which Kenya has become a source of IP and a source of development. And I'm very mindful of the fact that Kenya's government and people really have high expectations for jobs coming out of this. And whatever business models we choose, we want to make sure that people can get employed and they can make a living doing This.
The last one is the suggestion. As an outside business person who wants very, very much to work more in this region and would love to set up an office in Nairobi, the fact is that there are a number of different jurisdictions and a number of different ministers, different laws, different practices. Given that a lot of this is new and realistically that there is a very big diversity of capacity within government, within the legal community and other things, would it not make sense to try to come up with a common East African template so that I as a business person could see the area as a market and frankly spend more time doing business and less time trying to figure out whether I'm breaking a law or having trouble setting up my accounts?
>> PEDRO LESS ANDRADE: Thank you. I would like to make a comment on this. I would like to highlight one thing about the last part of this intervention has to do with the importance of having a harmonized set of regulations. And this is important for developing countries. Sometimes a country to be considered is not such a big market for countries. But if a country has the same set of regulations and those other countries become more interested in businesses, at some point this will help to attract business on the Internet, particularly on the Internet business, where geographical location sometimes is not important in order to carry out business. So this is also a very important thing to think about, to work together, to make more strong iterations in terms of cyber law and different need for Internet regulation and to have a standardized principle.
Now I'll give the floor to someone from Latin America so we can have an even discussion. We have three from Africa in a row.
>> I was next. You are skipping order.
>> PEDRO LESS ANDRADE: Would you allow me to put a bit of discussion from Latin America? Don't leave, please. You are going to be next. So thank you.
>> I'm from --
>> PEDRO LESS ANDRADE: We have one next. Do you want to be -- you want to be after the gentleman over here.
>> I just wanted to mention a couple things. First of all, I completely agree with Lilian's analysis on the regulation and -- regarding the contradiction of the need to try to regulate something you don't have access to. So it's completely irrational in that sense. And if we try to review what we have heard during this week in different workshops, it seems that statements like the less regulation, the more Internet, or statements like regulation is the last resort, it seems to be like a good practice when we talk about a lot of things regarding access to Internet.
And in that sense I just want to leave a comment and a thought among the participants: There is a huge power of sharing what we have been doing. For example, linking our situations in Africa and in Latin America. It has been really interesting to see the common -- the problems and ways to think about it. But the other part, very important part that I invite you to use is the multi-stakeholder model. And -- because when we -- I heard Alex comment about the lack of voices and responses in different countries in Africa. I think it's the responsibility of each one of the different stakeholders in each country to try to resolve their issues. And access is a critical issue and is something that is not resolved outside. It has to be resolved with the people, with the different stakeholders, in their communities.
>> PEDRO LESS ANDRADE: Thank you very much. Sir, now your turn. Please approach the mic.
>> Thank you for letting me ask my question, though I was supposed to have asked it in the previous session.
Anyway, I just wanted to agree totally with the -- with Alex's concern about participation. And, you know, what actually -- I'm very passionate about the Internet.
My name is Harry Harer, and I'm the publisher for CIO in east Africa. I'm passionate about the Internet. And when we talk about participation, it should be effective participation. What I see over and over again is having people coming for the meetings, and they participate.
But I did a quick survey on the first day of the session. I went through different people and spoke to different delegates who were attending this meeting. And you could clearly see there was not thought put into it. There was no strategy. People were just coming for a meeting.
One of the things that we did in East Africa was to start the East African IGF. And the idea was to try and governize a grass root level participation of people who were affected by the Internet, but did not get their voices to meetings like this one. But we still see that the participation that happens at this level doesn't really equal to the well-being of people being represented in these meetings.
So, Alex, how do we get effective participation from not just Africa but developing countries in these meetings? Because if you look at the delegation from the US, they know why they are here. They know what they want to do. They know what areas they want to lobby for. But speak to any African delegates in this meeting, and everybody has their own issues. So we need effective participation. How do we get that?
>> ALEX GAKURU: I'm told to give a strategy of how to get Africa and all those people together.
And I think a strategy is -- it's something that people have to develop because of a common objective, because of the motive theory. You know, there must be something that you want to achieve. Motives are not always bad. I think I tie that to what Lilian said before: America has been the centre of the growth of the Internet. We know good things about the Internet and how to optimize it and get the best of it. They have come to appreciate its value. Lilian says how can you think of regulation or have an agenda on regulation or net neutrality when you don't even have the Internet? So perhaps what we need to do is to get our people into a room and give them 10 megabytes per second. And once each of them has had it for a week and tell them this is what you'd have if you actually participate.
And on the fora I talk about Internet. The price they pay in America or Korea or whatever is so much. If you don't have it, then you can say now I see. Private censorship or government censorship, have that, and then we get to see the issue. I think we have to hand hold them and make them see the issues.
I don't know if you're a Christian. Like the doubting Thomas, you have to actually see it. As it is right now, trying to tell somebody the difference between a megabyte and kilobyte, you get so much more, the broadband advertisers, you get up to this amount per second. The faster the speed is, the faster you exhaust your bundles. So there is still a confusion about what you're getting. We have several issues, so we will do that.
>> LILLIAN NALWOGA: I'd like to respond to Harry. You asked a good question, how do we increase participation -- no. No. It is -- effective participation.
During this year's East African IGF, we were looking at how to make the East African IGF stainable. And we were thinking that, you know, before even we start thinking about making it happen, we have to look at the local national forums. If you come here and you don't have an agenda from your country, you don't know what you're going to achieve, you'll get nothing at the global more than at the local. You have to adopt the model from the national IGF, and then when you come here you know that you represent your country and these are the issues. And it goes back to what kind of Internet or what kind of Internet Governance model do you want for your country?
>> PEDRO LESS ANDRADE: Now we have a remote participant.
>> Ann, and she is interested in Alex's idea of the south to south group to table issues. And she sees many shared issues for the regions, and when does one think about the idea?
>> ALEX COMNINOS: It was Pedro's idea. And I suggest that we open a bigger account.
But yes, it's just the idea to start thinking about creating a caucus for IGF issues for people from the global south. So, you can join in and -- well, yes. Try to give us your concrete details by tweeting with the hash tag South IGF. And I think we will take it from there. We have to have a virtual stakeholder discussion about what this would be. What thing it would be. But let's start the discussion.
>> PEDRO LESS ANDRADE: Everybody is welcome and let's see who we have here.
>> And comment.
>> PEDRO LESS ANDRADE: First, we have been able to put this up quick, so remember, hash tag south IGF. E-mail is: Southigf@Gmail.Com.
>> ALEX COMNINOS: And follow twitter at South IGF. We have no followers. We feel lonely.
>> PEDRO LESS ANDRADE: The next question is over there. Lady in red.
>> Thank you. I'm from the Brazilian Internet Steering Committee and from the Brazilian Institute for Consumer Protection. And I would like to agree with Pedro Less Andrade when he says that one of the biggest challenges in the global south for Africa and Latin America is actually the broadband process. I would like to hear more from you about the strategies to do this. Sometimes in Brazil we have discussion, focus and competition. But in developing countries, especially, we have a real problem about it. And sometimes the government, when it acts, it's only to fill the gap in a process, universal process, giving to the companies the profitable areas, without thinking more about it. And I would like to hear about the strategies of participation and multi-stakeholder processes, and how the civil society could participate on the broadband plans that are carried out in this country. As for quality, I would like to see if we have more experiences in the room. In Brazil we were talking about connection regulation. Minimum speeds regarding the announced speeds and the companies are thrilled about it, saying that it doesn't meet most of the countries. And we should let the competition solve this, but we don't have competition. So I would like to hear if you have experiences.
And to end, they are talking about taxing heavy users of the Internet and increasing prices for those who download more and use more Internet.