FGV DIREITO RIO - CTS: Capítulos de Livros

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    Network Self-Determination and the Positive Externalities of Community Networks
    (2017) Belli, Luca
    This paper argues that existing examples of Community Networks (CNs) provide a solid evidence-base on which a right to “network self-determination” can be constructed. Network selfdetermination should be seen as the right to freely associate in order to define, in a democratic fashion, the design, development and management of network infrastructure as a common good, so that all individuals can freely seek, impart and receive information and innovation. The first section of this paper argues that the right to network self-determination finds its basis in the fundamental right to selfdetermination of peoples as well as in the right to “informational self-determination” that, since the 1980s, has been consecrated as an expression of the right to free development of the personality. The paper emphasises that, network self-determination plays a pivotal role allowing individuals to associate and join efforts to bridge digital divides in a bottom-up fashion, freely developing common infrastructure. In this perspective, the second section of this paper examines a selection of CNs, highlighting the positive externalities triggered by such initiatives, with regard to the establishment of new governance structures as well as the development of new content, applications and services that cater for the needs of the local communities, empowering previously unconnected individuals. The paper offers evidence that the development of CNs can prompt several positive external-effects that considerably enhance the standards of living of individuals, creating learning opportunities, stimulating local entrepreneurship, fostering the creation of entirely new jobs, reviving social bounds amongst community members and fostering multistakeholder partnerships. For these reasons, policymakers should design national and international policy frameworks that recognise the importance of network self-determination and facilitate the establishment of CNs rather than hindering their development.
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    Law of the land or law of the platform? Beware of the privatisation of regulation and police
    (2017) Belli, Luca; Francisco, Pedro Augusto P.; Zingales, Nicolo
    This chapter argues that digital platforms are increasingly undertaking regulatory and police functions, which are traditionally considered a matter of public law. The authors emphasise that such functions have been growingly delegated to platforms by public authorities, while at the same time platforms are self attributing such functions to avoid liability, de facto becoming private cyber-regulators and cyber-police. After highlighting the tendency towards delegation of public functions to private platforms, we provide concrete examples of such phenomenon. For example, the chapter illustrates three types of delegations of public power: the imposition of openended injunctions against innocent intermediaries, typically for content removal or website blocking; the implementation of the right to content delisting against search engines, also known as the “right to be forgotten”; and the enlisting of numerous IT companies into a voluntary scheme to counter “illegal hate speech”. We show in all these cases that the amount of discretion conferred on platforms is problematic from the standpoint of the protection of individual rights. Furthermore, the paper scrutinises the case of the parallel copyright regime developed by YouTube, to emphasise another collateral effect of the privatisation of regulation and police functions: the extraterritorial application of a national legislation – US copyright, in this case – which de facto turns the platform into a private proxy for global application of national regulation. We conclude highlighting some of the challenges and viable solutions for the protection of individual rights in an era of increasing privatisation of regulation and police.