Rule of Law as a key concept in the digital ecosystem during Internet Governance Forum – interview 2/2

12/02/2020
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During the 2019 Internet Governance Forum in Berlin, UNESCO gathered judicial operators on 28 November 2019, for a special session to discuss the challenges for judicial authorities in dealing with digital rights and digital ecosystems. UNESCO conducted interviews with Appeals Court Judge from Rio de Janeiro state in Brazil, Judge Andre Gustavo, and Malaysian lawyer, Adlin Maji, who took part in this session.

What is the importance of involving more judicial operators, as yourself, in this discussion on internet governance?

Judge Andre Gustavo (Rio de Janeiro Appeals Court): Because it allows us to think outside the box. We are a very closed group, with primarily a juridical mindset. So it is important for us to understand the perspective of civil society, governments and all stakeholders in general involved in this very important and huge area that is the internet. For us, this is an opportunity to gain a new perspective on this issue.

Adlin Majid (Malaysian lawyer): It is important, I think, for lawyers to be here today because we are the implementers of law. Lawyers being lawyers, we are trained in laws which are territorial in nature and jurisdictional in nature. By contrast, the internet is something that is extraterritorial, it cuts across jurisdictions. So, taking into account the cross-border nature of the internet, and without knowledge on how laws related to the internet are applied in other jurisdictions, it is very difficult to be able to implement and interpret these laws effectively. So, it is important that we speak to policymakers to understand the high-level reasons for why certain policies and laws relating to the internet are put into place, and to then be able to effectively assist in the implementation and the interpretation of these laws. 

Being here, and seeing the issues related to the internet that are being discussed, such as hate speech, freedom of expression, privacy, access to information, jurisdiction issues– what are those that interest you the most?

Judge Andre Gustavo: I would say that one of the biggest challenges we are facing in Brazilian society is hate speech, especially because the definition of hate speech is not easily identified. Hate speech is pretty much a sociological concept, so there is a big gap between the sociological concept of hate speech and the juridical concept of hate speech. This is the first thing. And the second thing about the problem with hate speech, is how to treat different kinds of hate speech. A racist joke, for example, is considered hate speech. But also, incitement to violence against a group is hate speech. There is a big difference between these two kinds of situations. So, it is very challenging for judges to understand the difference between the different kinds of hate speech, and how to judge them accordingly.

Adlin Majid: The main interest that I found here was on privacy laws, and that is mainly because it is a very new concept in Malaysia. We don't even have specific laws that govern privacy. We do have a data protection law. But to implement that law in Malaysia, in a society where privacy is not really recognized as a right, has been quite difficult. So, discussions on this issue is very important, and it has been an exposure for me. There were notably discussions on GDPR (General Data Protection Regulation), which has recently been the main focus of discussions on data protection and privacy laws. And I find that because GDPR has extraterritorial effect, as a lawyer, I need to be able to advise and be up to date on this space. And that has been something that I have been keen to discuss with fellow delegates here.

How do you see the initial training of lawyers in your country? Would you say that introducing these issues in the initial training and permanent training of judges is also an important way of dealing with these challenges?

Judge Andre Gustavo: I would say it is not only important, it is essential. Because, I realize that in Brazil, we need to create a culture around not only the internet, but also around freedom of speech. Because, at the end of the day, we cannot talk about internet without talking about freedom of speech. So, we need to create standards, principles, about how to apply this very important principle.

Adlin Majid: It is still very challenging, I think, as far as training is concerned. But in Malaysia, we do try to put training programs into place. But as I mentioned, it is in the nature of lawyers to be very specific and very jurisdictional in our approach, and that has to change because of the global nature of the internet. So, an event like this and the training that is done at a higher level, or a more international level, will be very useful for lawyers. Because right now, whatever we do, our focus has always been on national laws. And we jealously guard the status of our national laws when it comes to their implementation. In fact, in Malaysia, our internet laws contain provisions on extraterritoriality. But the reality of the situation, at this point in time, is that without international cooperation, and without international understanding, these laws cannot be enforced. It is very very difficult to enforce them.

The session was organized with the support of UNESCO's Multi-Donor Programme for Freedom of Expression and Safety of Journalists.