By now, the news cycle surrounding the temporary shutdown of Whatsapp by a Brazilian Court has petered out.
If you missed it (or are only reading this 50 years later!), the gist is that in 2015 Whatsapp is a large transnational mobile messaging service with global appeal and very high reach in Brazil. Prosecutors in Brazil required Whatsapp to hand over sensitive data in ongoing criminal proceedings. Whatsapp did not respond. The prosecutors moved the Court to punish Whatsapp. The Court applied provisions under the shiny, new Marco Civil statute to penalise Whatsapp by way of ordering the shutdown of the service in Brazil.
If you require more detail, an excellent survey of the key issues, actors and opinions was provided by Taisa Sganzerla.
As a Caribbean lawyer, my natural curiosity led me to wonder how this would have played out in the West Indian context. Perhaps more importantly, I started to consider the specific lessons arising from the events in Brazil for the region.
What is the Appropriate Approach to Legislating Technology?
For me, the starting point is philosophical: how do we wish to deal with these situations? Specifically, how do we wish to attempt to legislate situations where a web service refuses to comply with domestic laws or directives? To bring greater reality to the scenario, let us assume that said web service i) has truly global reach and ii) more than likely has no data servers located within the physical jurisdiction of your state.
The Commonwealth Caribbean is part of an increasingly interconnected world where the importance of physical location, relative to matters of commerce, entertainment, knowledge transfer and productivity, is lessening by the day. This, thanks to advances with internet access and a multitude of useful internet-based services.
A rising tide lifts all ships and so, the almost too obvious corollary is that criminal and civil wrongs with an increasingly digital element are going to occur more frequently as well. Already, we see where these eventualities are increasingly occurring with the assistance of new, leading-edge internet-facing services such as Skype and Facebook.
On reflection, it would seem that the approaches that our parliaments in the region can take are to:
- do nothing and hope that the challenges presented by the particular technological innovation doesn’t disrupt the general way of life or become too much of a live issue, thereby demanding the intervention of the judiciary and/or the legislature;
- do the bare minimum in the way of enacting broad laws, intermittently, which ostensibly touch and concern our current technology-mediated reality; or
- accept the reality of a world that is heavily impacted and mediated by digital technologies and attempt to aggressively legislate to suit.
The first option is untenable. It is the equivalent of an Ostrich hiding its head in the sand.
The second is closest to the reality in the region. Some laws are, ostensibly, enacted to tackle aspects of our new digital reality such as privacy and computer misuse legislation. Most of these laws are woefully bereft of updates to tackle the novel, innovative challenges presented by newer technologies.
Additionally, legislation is often drafted but never actually makes the full journey to enacted law. A good example is the Data Protection bill in Barbados. This bill has been tabled since 2005 but at the time of this post, it has still not been passed.
I suspect that while it is attractive in intent, the third option of aggressively legislating would not be practical or take us as far as we ideally imagine. Why?
Firstly, it would not be practical given the small matter of human resource constraints. We simply don’t have enough warm bodies to be deployed to research and draft the relevant laws necessary to keep up with the times and avoid law lag. w
Aggressively legislating perhaps would not have the desired effect. There is an assumption that the appropriate approach to protecting society in the face of advances in technology is to aggressively and constantly throw new legislation or regulation at the advances. This assumption is inherently faulty.
Further, we have seen from the way the first instance Court in Brazil attempted to apply what is, for all intents and purposes, well heralded, cutting edge, digital rights legislation that, ridiculous outcomes can still flow. Essentially, even with the best legislative framework, the human element can always lead to irrational consequences when applying this framework.
One suggestion from Internet Governance thinker, Niel Harper is
to focus on how the legal system holistically addresses technological change. We should examine the respective roles that administrative bodies, national courts, tribunals, law reform bodies, and other entities play in helping the law adapt to rapid technological change.
I can’t claim an answer to the conundrum but I suspect that the ideal solution may well lay in deploying primary enactments that are, in their drafting, sufficiently seized of the likely direction, internet-facing technologies are taking. To be clear, when I refer to direction, I speak of the perceived unique manner in which a particular technological advance will likely mediate our lived reality. This, as opposed to the specific characteristics of any particular technology being deployed in the market at a particular time.
Under this approach, the legislation is informed by the specific milieu of rights and duties of the various actors (end-users, consumers, service providers, government etc) but in broad terms. The legislation ought not to be so prescriptively specific that a sudden or unexpected shift in society’s appetite for a particular technology would render the piece of legislation useless.
This is the first part, the second piece of the puzzle requires that primary statute to be supplemented by a regulatory framework where the regulators are given sufficiently broad remit and allowed the necessary discretion to promulgate and retire regulations as they see fit. The sum effect? Regulations, as opposed to the primary enactments, are the primary legislative tool tasked with tackling the nuances of a particular technology wave. The working assumption here is that regulators, already empowered by the relevant statute will not be as encumbered as legislators in responding to shifts in the environment. Indeed, so long as in regulating, the regulator does not attempt to create or remove substantive rights afforded by the primary, empowering statute, the regulators could more quickly put relatively robust frameworks in place for managing how a particular new media entity offering an internet-based service ought to operate in the particular society.
A dearth of relevant laws.
So, let us assume that these new media entities with a global footprint were huge fans of the rule of law, were not beholden to primarily capitalist motivations and were willing to comply with local laws. The question then would be: what would they be complying with? A common complaint from technologist in the region is that generally speaking, there is a dearth of laws which are cognisant of and deal directly with the reality of a technology-centric era. Where such laws exist, their actual reach pales in comparison to the reality presented by technological advances.
There are no enacted laws in the Commonwealth Caribbean designed to recognise and protect ‘digital rights’ in a manner akin to the Marco Civil in Brazil. Although, we should not feel too badly on this ground; Brazil is a world leader in recognising and seeking to protect rights with regards to the internet. As recently as last year, when they passed the Marco Civil into law, no other country had done it.
Having said that, we need no better illustration of the relative state of our legal advances in the region than the recent Trinidadian High Court decision in Theresa Ho v Lendl Simmons. There, the judge had to carry out an admirable feat of juristic gymnastics to pin liability to a man who had used his phone to share sexually explicit photos of a former lover. The judge noted:
It must also be recognized that while the Courts in the United Kingdom are now obligated to apply the law in relation to breach of confidence in a manner that is consistent with that Nation’s obligations under the Human Rights Act 1988 and its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms, no such obligation exists in this jurisdiction.
The instant case reinforces this Court’s belief that it cannot confine itself to a myopic view of the law and in the absence of legislative protection, the common law concept of Breach of Confidence has to be moulded so as to address modern societal demands. The law has to be dynamic and has to develop in such a way to ensure that it remains relevant and it must be recognised that there is an obligation of conscience which requires that videos, photographs and/or recordings that capture private intimate relations, should be clothed with a quality of confidentiality.
My conclusion: had a similar situation to the Brazil/Whatsapp decision occurred in the Commonwealth Caribbean, there would be no specific enough statutory regime to compel compliance of a transnational service based in another country. We would be left, like the judge in the Ho v Simmons case to ‘reach’. The one positive: the vast majority of countries in the Commonwealth Caribbean apply the common law. The common law provides an inherently dynamic approach to law-making which allows courts to mould and stretch the law to fit the specific circumstances presented to it. Although, the common law, unsupported by a statutory backbone can be somewhat unpredictable in its case-by-case application of seemingly established principles.
Size matters.
Ultimately what we saw in the Brazil/Whatsapp situation was the flexing of the muscles of the Brazilian judiciary in a very large country. The quick action of the Appellate Court to reverse the decision of the lower court staved off a bigger showdown. Notwithstanding, a greater truth looms: large transnational digital media companies like Whatsapp, Facebook and Microsoft are more likely to comply or, in the very least, sit at the table to negotiate, when dealing with some of the biggest economies in the world.
Consider the case of search behemoth Google. Google left China in 2010 under protest about China’s requirements for them to self-censure search results. Yay for human rights. Recently, however, without as much fanfare, they announced an attempt to get back in.
The lesson: where the country in which a transnational digital media giant wishes to extend its services has a statistically significant enough population, that new media company, once motivated by profit, will eventually want to play ball. It is not necessarily just about human rights issues like openness and privacy protection, as CEOs like Mark Zuckerberg would have us believe.
The hard truth is, the bigger the population, the larger the potential market for services and, in turn, the greater the potential for revenue generation. In the English speaking Caribbean, the population sizes range from 2.9 million in Jamaica to just over 50,000 inhabitants in St. Kitts. Our populations, even collectively, would hardly make a dent in the global population figures.
Would Google or Microsoft cry about a court in a country in the Commonwealth Caribbean, in a fashion similar to the Brazilian Court, blocking access to their web-based services? It is left to be seen but I doubt it. Such media giants have nothing of value to lose here. Not yet anyway.