Brazilian fever

The attention of the World Cup addicted local community will soon be drawn in the next few weeks to the land of Falcao, Socrates and Zico, but my interest towards Brazil started a bit earlier.

Late in April of this year, Brazilian President Dilma Rousseff ratified the Marco Civil Da Internet, a bill guaranteeing internet privacy and internet access and which has already been defined as the “Internet Constitution”.

After signing the bill into law, Rousseff stated on her website, "The internet you want is only possible in an environment of respect for human rights, especially privacy and freedom of expression."

The Marco Civil had already been presented to the Brazilian parliament in late 2012 but was defeated. But the world we knew in 2012, especially in technology terms, was incredibly different than the world we know now. In 2012 former NSA contractor Edward Snowden was unknown just as much as the massive government surveillance scandals which he made public.

The reaction of the Brazilian Parliament following the Snowden revelations meant that the Marco Civil da Internet now introduces clear rights relating to privacy and internet access into law with the Brazilian Justice Minister Cardozo hailing this Bill as historic and as a victory from Brazilian society.

Of particular interest is Article 7(IV) of the Marco Civil which establishes that suspension of an internet connection should only result when there is a failure of payments directly related to its use. So simple and yet effective.

But whilst FIFA world rankings clearly establish that there is quite a chasm between Maltese and Brazilian footballing prowess, the same might not be the case with regards to digital rights.

In fact, a Digital Rights White Paper was issued by the previous administration in 2012. The White Paper contained many elements now contained in the Marco Civil. Unfortunately, the timing of the White Paper locally was not ideal and this led to it being lost in the electoral fever that gripped the country in the end of 2012.

It appears that the new Bill tabled in parliament by the Opposition is building upon and improving the principles presented in the White Paper in 2012. This is indeed very laudable. The Bill is proposing the introduction in the Constitution of an enforceable fundamental right to privacy and informational self-determination. The Bill is also introducing the importance of ICT as a tool for the enjoyment of our fundamental human rights, principally freedom of expression.

Privacy is presently not a directly enforceable right under the Constitution. The right to private and family life (as contained in Art 8 of the European Convention of Human Rights) did not have a direct and enforceable counterpart in our Constitution. Whilst we do have laws regulating data protection in Malta, one has to remember that Data Protection laws are a tool protecting the right to privacy but this very same right was not directly enforceable under the Constitution. With constant developments in technology, increasing debates on surveillance as well as the vast amounts of data being processed – it is now time to ensure that the right to privacy finds its proper place in our Constitution, through provisions that are enforceable in a court of law, not mere declaratory principles.

 The use of ICT, especially the Internet as a tool for the enjoyment of our fundamental rights has been increasingly the topic of discussion in various fora. The Bill is however not elevating ICT, or internet access, as a fundamental human right. As Vint Cerf clearly explains, the Internet is an important tool for the enjoyment of fundamental human rights but cannot be considered as a fundamental right - only a civil right. 

The importance and role played by ICT, even in the Arab Spring, can never be underestimated. Against this background it was the Human Rights Council of the United Nations itself that through its Resolution adopted in July 2012 reaffirmed that the same rights that people have offline must also be protected online. This means that access to electronic communication networks, such as the Internet, as well as services, applications and information available online, is today essential for citizens to be able to enjoy their rights.

The Bill is attempting to ensure that the UN Resolution of the Human Rights Council with respect to the importance of ICT as a tool for the enjoyment of human rights, particularly freedom of expression, is properly reflected in our Constitution in an enforceable manner. This will ensure that no one will be denied access to the Internet since the State will recognise such access as an important aspect in the full enjoyment of human rights, particularly freedom of expression. This Bill aims at the recognition by the State of internet access, informational access as well as informational freedom as civil rights.

The Bill also introduces the right to privacy and information self-determination as enforceable fundamental rights. But this new right to privacy will not only apply to our digital information but to our lives in general. Informational Self-Determination can be seen as a subset of privacy but is distinct from such right in the sense that under accepted theory, informational self-determination can be summarised as the right of decision regarding the use of your personal data.

 The introduction of these new fundamental rights and civil rights will create both positive and negative obligations on the Maltese State. The State will be restricted from introducing laws which might infringe these same rights. The State should also recognise its obligations to ensure that such rights are protected and available to all.

Obviously, as all other rights found in our Constitution, the rights proposed are not absolute but any restrictions to such rights have to be justifiable in a democratic society.

Now, let us dearly hope that this time round, like our Brazilian friends, we will look at this Bill with refreshed eyes away from partisanship and in the interest of all our citizens.