Celia Lerman, of the Universidad Torcuato Di Tella, overviews her upcoming study on Free Trade Agreements and their impact on Latin America internet policy.
Since the implementation of the 1996 Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), free trade agreements (FTAs) have commonly included international intellectual property obligations in their texts. With the evolution of cyberspace and cross-border e-commerce over the past fifteen years, treaties of this type have also incorporated internet policy regulations such as obligations regarding countries’ country-code domain name systems (ccTLDs), countries’ internet service providers’ liabilities, and countries’ treatment of personal data. Currently, the Trans-Pacific Partnership Agreement’s (TPP) multilateral negotiations touch on these, as well as other, internet policy issues.
In our study, we wish to analyze how existing FTAs have shaped internet policy in Latin America. For countries such as Chile, Colombia, and Costa Rica, FTAs have demanded legislation for issues that had not been ruled or debated on previously at the country level. We will pay special attention to cases where FTAs have resulted in countries adopting policies that were inadequate or foreign to their legal traditions. We will also analyze how the FTA network is affecting the region on an aggregate level by locking these countries into internet regulations that might have been very different if the FTAs did not exist. In such cases, FTAs effectively take away these countries’ flexibility to adopt new policies in the future.
In the FTAs we will analyze, provisions of specific interest include those relating to the regulation of domain names and the protection of copyrighted content in digital media. These topics are generally discussed in multistakeholder fora at international internet governance discussions, however, in the cases we will examine they were adopted unilaterally by the respective governments.
For example, provisions relating to dispute-resolution mechanisms require that the management of a country’s country-code top-level domain (ccTLD) provides an appropriate procedure for the settlement of disputes based on the principles established in the Uniform Domain-Name Dispute-Resolution Policy (UDRP).
While in principle these clauses give countries freedom to choose any dispute resolution system related to the UDRP, in practice they result in the adoption of the UDRP “as is” in most cases. Due to the rush in complying with FTA obligations and the lack of local resources at the ccTLD level to implement localized versions of the UDRP, many countries adopted the original UDRP despite its inadequacy in resolving national domain name disputes. Chile, who implemented its own system from the start, is an exceptional case. Until very recently, other Latin American FTA countries relied on the textbook copy of the UDRP and the delegation of national disputes to WIPO in Genève instead of developing their own dispute resolution mechanisms.
Additional provisions that are of specific interest include those related to ISP liability and WHOIS obligations. Provisionsregarding ISP liability demand the local regulation of intermediary liability for service providers in copyright infringement. This was an issue which had not been debated at the national level in many countries and thus had to be implemented internally without prior stakeholder engagement.
The experiences of Chile and Colombia provide a comparative example of how FTAs, with the United States in these cases, impact ISP liability legislation. In the case of Chile, the process resulted in the passing of a balanced legislation, which respects due process and freedom of expression rights under the Chilean constitution. In the case of Colombia, however, “Ley Lleras,” the first ISP liability bill proposed pursuant to Colombia’s FTA obligations, was archived as a result of criticism from civil society groups who claimed that the bill violated fundamental rights.
Clauses relating to WHOIS obligations mandate the provision of “online public access to a reliable and accurate database of contact information concerning domain-name registrants.” Even though many FTAs mention that this obligation should be complied with in accordance with local privacy laws and data protection regulations, there are risks of clashes between these laws that could be hard to reconcile.
In addition to studying these collisions between local legal cultures and FTA obligations, we will analyze possible solutions to mitigate the problem. This includes a recent initiative to create a Latin American regional domain name dispute-resolution provider under ICANN’s Strategy for Latin America and the Caribbean. A workshop, to be held at ICANN’s 50th meeting in London in June 2015, will bring together an expert panel and allow us to discuss out findings.
Overall, our study provides a perspective on the impact of trade agreements in Latin America. This complements current regional policy and academic discussions on the matter, such as those focusing on US, EU and Canada, on the Asia-Pacific and on the Arab world. Only by taking into account local legal traditions and being permeable to national policy needs will internet rules be balanced, just and effective in these countries.