[FYI] (Fwd) FC: Jose Guardia on Spain's website regulation plan: Not that bad

["Axel H Horns" <horns@ipjur.com>]

------- Forwarded message follows -------
Date sent:      	Fri, 26 Apr 2002 02:01:08 -0400
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: Jose Guardia on Spain's website regulation plan: Not that bad
Send reply to:  	declan@well.com

[Jose is a smart fellow; I had the pleasure of meeting him when I was
in Barcelona earlier this year. Previous message:
http://www.politechbot.com/p-03429.html --Declan]

---

Date: Wed, 24 Apr 2002 17:37:03 +0200
To: declan@well.com
From: Jose M Guardia <joseg@guardiasociados.com>
Subject: Re: FC: International update: Cuba, Spain, Australia,
Bahrain, India, Japan

Declan

I thought you and politech readers might be interested in some
comments on the new bill in Spain.

>                       [5] Spanish LSSI bill provokes Net speech
>                       worries
>============================================================
>Many politicians and cyberlibertarians have denounced a Spanish
>proposal that they say will seriously erode human rights on the
>Internet.
>
>The LSSI bill (short for La Ley de Servicios de la Sociedad de la
>Informacion y de Comercio electronico) would essentially allow a
>"competent administrative authority" within the government to shut
>down websites unilaterally--a power that until now required court
>approval.


While any law is perfectible, the claim above is baseless. What the
LSSI does is mainly to refer the existing legislation in the 'real
world' to the Internet. As opposed to Common law-based legal systems,
Continental Europe's legal systems need to fill any legal void as much
as possible in an explicit way, because judges are not allowed to
apply an existing law to a new field by the so-called 'analogy' (that
is, because both fields are similar). It has to be explicitly said,
and this is what the LSSI does.

The LSSI states that, when a legal issue arises, it's the "authorities
with jurisdiction" [not a 'competent administrative authority', which
is a bad translation from Spanish in the first place: "competente" in
the legal field means strictly "with jurisdiction"] who will take
charge, "according to the existing legislation on the specific
subject". To know which authorities -administrative, judicial- have
jurisdiction over a specific issue, you just have to look which one
has jurisdiction in the real word. In issues involving, i.e., false
advertising, financial fraudulent schemes, etc, it is an
administrative authority who can deal with the case, as it does in the
real world.

But in cases where basic liberties, when freedom of expression is
concerned, Spanish laws (above all, article 20 of Spanish
constitution) determine that it's only the judges who can deal with
it. The LSSI repeats several times that all its provisions have an
exception: when a basic right is involved. In these cases, all
warranties from the existing legislation are applied. As I just wrote,
this means that according to the LSSI bill, free-speech issues will be
dealt only by judges.

Two more observations:

- As opposed to what it's said in the excerpt, the authority with
jurisdiction will never be able to shut down a website 'unilaterally'.
First of all, because the only penalty in the LSSI is not closing the
website, this is for very extreme cases. Besides, even when it's a
government authority who has jurisdiction -and of course, even more so
when it's a judge- there's always a process in which the website
operator can present his arguments and evidence. It's a process (as in
non-Internet related issues) very much as in a trial, with checks and
balances, and there are penalties for any authority that oversteps.
Which leads me to the next observation:

- "critics have pointed out that although the LSSI proposal includes
language stating that the act will not be used against
Constitutionally protected civil rights, it does not require any
specific measures be taken to prevent possible abuse". I'm so amazed
at the level of ignorance that sometimes I can't help suspecting that
some people take positions as ways to get into the spotlight. Of
course the bill does contemplate specific measures to prevent abuse,
they simply are not "copied and pasted" into its text, as they are
never in any new law. Let me explain: there are specific, separate
laws that very precisely establish what the administration can or
cannot do, what are the due processes and proceedings, and what are
the penalties for government officials who go too far. This is a
general, separate legislation applying automatically to all the
administration's activity in any field. Its validness is given for
granted, so it's not necessary to repeat all these limits, checks and
balances in every new law.

The fact that the legal system is formed by multiple, interrelated
pieces of legislation is easily understood by someone with a minimum
knowledge of how a legal system works, or anyone who cares to be
informed (funny, but many critics start their rants with a admission
of ignorance: "I don't have a clue about the laws, but this one is
dangerous"...). When reading any law you have at least to read it in
full, since there are provisions first, but there are exceptions
after. Some people, consciously or not, have been talking about the
former only, as if there were none of the latter.

Even the most progressive, leftist judges in the 21-member Judicial
Power General Council (who has to file an opinion report about new
bills on certain basic pieces of legislation before they're sent to
the Parliament) gave their OK from the legal point of view. There was
only 1 partially dissenting opinion basically for formal reasons.

Why then, you may ask, the party in opposition is crying foul? Well,
I'm not to get into politics, but I'm old enough to know that
political positions are too often based on PR and previous positions,
or on the will to confrontate the other just for the sake of it...

The LSSI bill, as I started saying, is not perfect. Some of its
provisions about the treatment of spam, registration requirements for
websites, penalties, an others, are certainly improvable. But that's a
far cry from saying that "it will seriously erode the human rights on
the Internet" (which in itself is an alarmist accusation: saying "free
speech" apparently wouldn't be graphic enough)

Just a wanted to make some quick comments; please excuse my English

Best

Jose


***************************************************
Jose M Guardia
Internet, Media & Technology Analyst
Barcelona, Spain
Ph. (++34) 629-74-26-24
E-mail: joseg@guardiasociados.com
www.guardiasociados.com
***************************************************





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