[governance] Facebook profiles blocked and content removed in Brazil

[Salanieta T. Tamanikaiwaimaro]

On Fri, Jun 1, 2012 at 1:37 AM, Marilia Maciel <mariliamaciel at gmail.com>wrote:

> Matthias, very interesting message, I very much agree. Thanks for the
> reference of the article.
>
> Norbert:im my mind there is no question that whatever freedom of
> expression issues there may be with nudity restrictions on Facebook, the
> issue of webmaster liability is a freedom of expression problem of a much
> more serious kind.
>
> MM: Norbert, I agree with you on the importance of liability. Clear and
> reduced liability of intermediaries is something we are trying to push with
> the Brazilian Civil Rights Framework, to avoid the chilling effect. The
> battle will take place in Congress soon. But, on the other hand, I think we
> cannot minimize the importance of the parameters of "good behavior" set by
> these global platforms, such as FB. I have a younger sister, and it amazes
> me how the Internet for younger generations is restricted to platforms like
> FB and apps. They carry content to these platforms in a way that they are
> the ones to intermediate digital reality for them. I think that rules
> established on ToRs are able to influence and modulate, very subtly,
> cultural ideas, such as the idea of morality. And the importance of this
> cannot be underestimated and it justifies the discussion of this topic, as
> much as the topic of intermediaries.
>
>

> Sala:  What if facebook was merely trying to comply with US laws and
> other countries laws that expressly prohibit obscenity.
>
> MM: Sala, you are taking a commercial/juridical stance. I am taking a
> political stance.
>

Sala: I raised this question to highlight that Facebook exist in an
ecosystem where their actions are affected by third party influences or
regulatory influences. Some would argue that there are diverse influences
that drive political agenda whether civil society driven, or commercially
driven. It is generally accepted in most democratic countries that laws
merely reflect the pulse of the people. The exception of course is
countries that have illegitimate governments such as those that have been
usurped through Coup D' Etats and tyranny.


> Two points. First, I do not think that is up to FB to give concreteness to
> a notion of nudity or obscenity.
>

Sala: I think we need to re-visit the Terms of Service [ see:
http://www.facebook.com/legal/terms]. When people sign up, they sign up
knowing what is permitted and not permitted and have the "Free will" to
disengage.
I have copied a section from their Terms of Service,see below:

*3. Safety*

We do our best to keep Facebook safe, but we cannot guarantee it. We need
your help to do that, which includes the following commitments:

   1. You will not send or otherwise post unauthorized commercial
   communications (such as spam) on Facebook.
   2. You will not collect users' content or information, or otherwise
   access Facebook, using automated means (such as harvesting bots, robots,
   spiders, or scrapers) without our permission.
   3. You will not engage in unlawful multi-level marketing, such as a
   pyramid scheme, on Facebook.
   4. You will not upload viruses or other malicious code.
   5. You will not solicit login information or access an account belonging
   to someone else.
   6. You will not bully, intimidate, or harass any user.
   7. You will not post content that: is hateful, threatening, or
   pornographic; incites violence; or contains nudity or graphic or gratuitous
   violence.
   8. You will not develop or operate a third-party application containing
   alcohol-related or other mature content (including advertisements) without
   appropriate age-based restrictions.
   9. You will follow our Promotions
Guidelines<https://www.facebook.com/page_guidelines.php#promotionsguidelines>
and
   all applicable laws if you publicize or offer any contest, giveaway, or
   sweepstakes (“promotion”) on Facebook.
   10. You will not use Facebook to do anything unlawful, misleading,
   malicious, or discriminatory.
   11. You will not do anything that could disable, overburden, or impair
   the proper working of Facebook, such as a denial of service attack.
   12. You will not facilitate or encourage any violations of this
   Statement.



> This is a very complicated debate, of public interest, that cannot be
> carried out by the board of company alone, whose role is, naturally, to
> maximize profit and minimize risks.
>
Sala: The point is to see if there is any logic. If we moved away from the
online world and consider organizations and clubs who impose rules on their
members, is it reasonable to expect a certain type of rule or code imposed
on those who willingly choose to subscribe. How different should it be for
an ordinary entity in the ecosystem. There are many other social networks
aside from Facebook that one can go to if one does not like the rules. On
the other hand, we see how European Privacy Regulators have effectively
intervened where Facebook has violated some of these rights.



> Second, I personally do not care to which country law they are complying
> with.
>

Sala: I understand but when an assertion is made that just because Facebook
is a private company it exists to derive a profit at the expense of public
interest, is on one view misleading if one does not show the holistic
picture of what may be causing them to behave in a certain fashion.

> My point is that they are enforcing a FB policy norm that does not echo
> laws and common sense in Brazil and this interpretation is going against
> the fight of feminist movements and movements fighting for sexual rights
> here.
>
Sala: I suppose this is how inventions, innovations are birthed. When one
is dissatisfied with the status quo or with what currently exists and
dreams of a better way. This is where you can start an alternative social
network and create your own rules. As someone who is also an advocate
against violence against women and children, I do not see any correlation
to the advocacy work. There are more "concrete" ways to lodge the battle
against violence from a National Framework perspective such as
strengthening and making consistent sources of statistics, improving access
to justice delivery systems having robust community intake centers,
ensuring that governments prioritize and allocate finances etc. I was very
impressed with how the District Superior Courts in Washington D.C after
analysing statistics and noting that the incidence of violence seemed to be
coming from the SE Quadrant came up with the idea to establish a Community
Intake Center and Satellite technology where victims could access a Judge
for emergency protection orders. [See:United Medical Center
1328 Southern Avenue, SE, Suite 311,Washington, DC]. If we examine what
occurred in Toronto that sparked the entire "March", it was the comments of
a Police Officer which imputes a certain level of "insensitivity". Police
Insensitivity is a global phenomenon and even New York had its share and
sadly recently in Colorado, Jessica Gonzalez lost her children because the
Police did not effect a restraining order. She took State to Court and it
reached the Supreme Court and although they ruled against her, she won her
matter when they took it to the Inter American Commission on Human Rights
where the Commission said that the United States had a responsibility to
Jessica.

We already have our internal disputes with conservative movements, as was
> pointed out by Jac, when he mentioned the Azeredo Bill. We do not need this
> external push from FB giving a restrictive interpretation of what is
> obscene and what is moral.
>
Sala: I respect your perspective even if I disagree.


> It just reinforces the conservative forces we are trying to fight.
>

Sala: Why fight, when we can live in harmony? Everything has a place. The
quiet stream in the middle of the rainforest and the loud volcano erupting
are all part of one big ecosystem.

> So, FB juridical compliance with some country's law is translating into a
> political setback here.
>
> Sala: I respectfully disagree.

Of course, more countries with a more conservative approach to sexual
> rights could argue the opposite, that FB disrespects local moral standards.
> What is the solution? It can't be one size fits all, otherwise we will only
> see ankles of women in FB.
>

Sala: No one ever said that we should only see the ankles of women on FB.
What we should be discussing is how to tackle the abuse of the exception
under Article 19 of the  ICCPR.


> Fragmentation on service in each jurisdiction? I don't think this should
> be the way... But I think that, definitely, this should be a theme for
> global discussion.
>
> Badouin, thanks! I appreciate. We will keep in touch.
>
> Best,
> Marília
>
>
> On Thu, May 31, 2012 at 4:46 AM, Matthias C. Kettemann <
> matthias.kettemann at uni-graz.at> wrote:
>
>>  Dear all
>>
>> since Facebook's "Abuse Standards" were leaked in February we know
>> according to which policies Facebook policies content. I've summed at the
>> discussion here:
>> http://internationallawandtheinternet.blogspot.com/2012/02/where-humor-overrules-hate-speech-and.html.
>>
>>
>> There are a number of issues involved. One is that prima facie and in
>> purely legal terms a social networking company can choose to censor certain
>> content, if its users have agreed to submitting to this censorship, as part
>> of the terms of service to which they submit to when creating an account.
>>
>> But there are limits to this: A company cannot engage in arbitrary
>> censorship. Further, as soon as social network providers are so successful
>> that their networks are a "quasi-public sphere" they lose, it can be
>> argued, the right to use terms of service to limit international standards
>> of freedom of expression. The more successful and public a service is, the
>> fewer restrictions may be allowed.
>>
>> As I've heard pointed out, Facebook pursues something of a 'college
>> morality'. Sex is bad, but violence is ok. The "Abuse Standards" bear this
>> out.
>>
>> Back in February I wrote in my blog:
>>
>>  "Among pictures which are not allowed, we find those showing "Any
>> OBVIOUS sexual activity [...] Cartoons/art included".Users are also not
>> allowed to "describe sexual activity in writing, except when an attempt at
>> humor or insult."
>>
>> "Digital/cartoon nudity" is not ok, but "Art nudity" is fine. People
>> “using the bathroom” are not allowed, neither are "[b]latant (obvious)
>> depiction of camel toes and moose knuckles".
>>
>> Facebook also bans "[s]lurs or racial comments of any kind", hate symbols
>> and "showing support for organizations and people primarily known for
>> violence." But the Guidelines caution that "[h]umor overrules hate
>> speech UNLESS slur words are present or the humor is not evident."
>>
>> Since the importance of Facebook as an international forum of aggregation
>> and articulation of ideas is growing, the leaked document amount to what it
>> believes should be an international moral consenus on allowed content. This
>> would be problematic as the document is not free of bias and should be
>> vetted more carefully against international law on freedom of expression.
>> With regard to the generally excepted exceptions from freedom of
>> expression,  however, most of the standards pass muster.
>>
>> [...]
>>
>> Content violative of human rights of others will always exist. Social
>> network providers are obliged to protect their users from that content but
>> at the same time must ensure that they do not infringe freedom of
>> expression unnecessarily.
>>
>> What Facebook should now do is officially publish the Abuse Standards,
>> clarify the moderation process, and start a vigorous debate among its users
>> on the international standards of freedom of expression." ****
>>
>> For more, see
>>
>> http://internationallawandtheinternet.blogspot.com/2012/02/where-humor-overrules-hate-speech-and.html
>>
>> Kind regards
>>
>> Matthias
>>
>>
>>
>>
>> Am 31.05.2012 09:01, schrieb Salanieta T. Tamanikaiwaimaro:
>>
>>
>>
>>  On Thu, May 31, 2012 at 5:15 PM, Jac sm Kee <jac at apcwomen.org> wrote:
>>
>>> -----BEGIN PGP SIGNED MESSAGE-----
>>> Hash: SHA1
>>>
>>> hi all,
>>>
>>> a glimpse into how FB implements its censorship policies in practice:
>>>
>>> http://www.rawstory.com/rs/2012/02/22/low-wage-facebook-contractor-leaks-secret-censorship-list/
>>>
>>> In those countries, the people make their laws through the
>>> > parliament and one can say that they are legitimately exercising
>>> > their sovereign right to determine what is "acceptable" versus what
>>> > is "not acceptable" - do we then dare say that they are wrong.
>>> > Every country has the sovereign right and the people therein the
>>> > sovereign right to determine for themselves what is "public
>>> > morality".
>>>  actually, the state's duties to protect public morality is precisely
>>> what provides legitimate cause of governments to intervene and create
>>> more laws around censorship of the internet - and this needs a closer
>>> and more critical analysis than accepting as is. e.g. in brazil, the
>>> problematic azeredo bill was first pushed under economic arguments
>>> (preventing financial fraud) - didn't work. but when it was pushed
>>> under child protection arguments, it almost went through without a
>>> hiccup and galvanised a lot of support (which also resulted in a huge
>>> protests - but different story).
>>>
>>>  There are two opposing schools of thought and maybe more, one holds
>> the view that what is true in the real world must hold true in the virtual
>> world. Paraphrasing that would mean that laws that are applicable in real
>> time should be applicable in the internet. The other believes that there
>> should be separate laws in real life and separate laws for the Internet.
>> Every event/transaction has to be analysed according to its own merits so
>> that the danger of painting everyone with the same brush is reduced.
>>
>>
>>> pornography is another obvious one, but then what does this constitute
>>> and how is it defined can be a problem - as can be seen the FB
>>> scenario. not the first time they have come across problems, e.g. they
>>> are notorious for blocking photographs of women breastfeeding. compare
>>> this against e.g. time magazine's recent controversial cover of a
>>> woman breastfeeding, which is okay under US laws - so, lowest common
>>> denominator internationally?
>>
>> This, I would respectfully submit is not the correct test.What is
>> culturally acceptable in Miami, Florida, US is not the same as in Qatar,
>> Malaysia etc.  To dictate to them what their public morality won't buy us
>> any ground as far as advocacy for freedom of expression is concerned and
>> only serves to alienate without educating and giving them an opportunity to
>> learn and grow. See the tests that the US Supreme court used in the Miller
>> case.
>>
>>
>>> this would mean anything less than e.g.
>>> fully closed face and ankles and wrists would be unacceptable. that
>>> doesn't quite make sense either.
>>>
>>>  That was never said. For the record, the discussions have been about
>> namely the following:-
>>
>>    1. Is the right of freedom of expression an absolute right? Is it an
>>    unfettered right?
>>    2. Does the right of freedom of expression come with responsibilities?
>>    3. Who should be responsible when it comes to the Internet?
>>    4. Are there exceptions under International law?
>>    5. What are those exceptions?
>>    6. Are there instances where the exceptions have been abused?
>>    7. How can civil society advocate responsibly?
>>
>>
>>
>>   apc has been doing a research on examining how internet regulation and
>>> regulation of sexuality goes hand-in-hand, and it's thrown up some
>>> interesting points. from e.g. international aid for infrastructure
>>> that comes encumbered with policy requirements and setting national
>>> agendas on e.g. the issue of child pornography, to the contentious
>>> geopolitical negotiations around sexual speech, health, rights and
>>> citizenship. more info: http://erotics.apc.org
>>>
>>> i've also been reading the conversations around EC and democratization
>>> of IG on this list with interest. and the thing that bugs me about
>>> looking at democratization starting from national democratic processes
>>> is that the potential of the internet to facilitate democratic
>>> participation and deliberations is precisely because it is currently
>>> still somewhat slippery from complete state control, as opposed to
>>> e.g. broadcasting media and books and streets.
>>
>>
>>   I think that when making a broad assertion that you give specific
>> examples so that there can be discussion and debate.
>>
>>> so i am reluctant to
>>> say that states should ahve oversight and negotiate it from there.
>>>
>>
>>  There is some misunderstanding. In any sovereign jurisdiction, civil
>> society, private sector and the state each have their place. The foundation
>> of multistakeholderism stems from the basic notion that the governments,
>> private sector and civil society have clear functions. What is enhanced
>> cooperation domestically within a nation and what does it look like outside
>> the country? What should it look like?
>>
>>  although i understand that global governance and oversight is
>>> different from national, but when states become the highest hierarchy
>>> of authority, then my point of entry for engagement as civ soc would
>>> be from that level. it's not something i am optimistic about..
>>>
>>
>>
>>
>>> anyway, 2 cents,
>>> jac
>>>
>>>
>>>
>>>
>>> >
>>> >
>>> > What FB is doing will potentially impact the way that younger
>>> > generations
>>> >> will perceive liberty (including body expression and sexual
>>> >> liberty) and morality. And, in my country, FB is actually being
>>> >> more conservative than traditional media, endangering the
>>> >> progress we made on recent decades when it comes to body
>>> >> expression women's rights and sexual rights.
>>> >>
>>> >
>>> >
>>> >> Is it facebook that is being conservative? Afterall, they are
>>> >> merely trying to comply with the laws of the land. I think that
>>> >> if people have an issue, they should take it up with their
>>> >> respective Parliaments and have it debated. These comments are
>>> >> restricted to the "Freedom of Expression" but when it comes to
>>> >> "Privacy" and "misuse" of information and data - I have different
>>> >> views.
>>> >>
>>> >
>>> >
>>> >> I do not feel comfortable to place this sort of decision on FB's
>>> >> hands, with no chance of democratic debate, with no chance to
>>> >> scrutinize these policies they impinge on users.
>>> >>
>>> >> These are good discussions and Turkey and Thailand and the US
>>> >> make
>>> > fascinating studies.
>>> >
>>> >> Best, Marília
>>> >>
>>> >>
>>> >>
>>> >>
>>> >>>>
>>> >>>>> Some basic conclusions: a) rights, such as freedom of
>>> >>>>> expression,
>>> >>>>
>>> >>>> Why would one who uses FB think they can express themselves
>>> >>>> outside of the FB ToS/AUP?
>>> >>>>
>>> >>>>
>>> >>>> are being
>>> >>>>> restricted by the same platforms that are praised and known
>>> >>>>> for
>>> >>>> enabling
>>> >>>>> their exercise; b) there is a privatization of Internet
>>> >>>>> regulation,
>>> >>>> subtle,
>>> >>>>> based on contracts (terms of use)
>>> >>>>
>>> >>>> Would you argue that Internet companies have NO ToS?
>>> >>>>
>>> >>>>
>>> >>>> , but yet, dangerous; c) I see no adequate
>>> >>>>> forum where we should take this issue to be analized in a
>>> >>>> participatory and
>>> >>>>> balanced way in the global arena.
>>> >>>>
>>> >>>>
>>> >>>> Nor should there be IMHO.
>>> >>>>
>>> >>>>
>>> >>>> -- Cheers,
>>> >>>>
>>> >>>> McTim "A name indicates what we seek. An address indicates
>>> >>>> where it is. A route indicates how we get there."  Jon
>>> >>>> Postel
>>> >>>>
>>> >>>
>>> >>>
>>> >>>
>>> >>> -- Salanieta Tamanikaiwaimaro aka Sala
>>> >>>
>>> >>> Tweeter: @SalanietaT Skype:Salanieta.Tamanikaiwaimaro Cell:
>>> >>> +679 998 2851
>>> >>>
>>> >>>
>>> >>>
>>> >>>
>>> >>
>>> >>
>>> >> -- Centro de Tecnologia e Sociedade FGV Direito Rio
>>> >>
>>> >> Center for Technology and Society Getulio Vargas Foundation Rio
>>> >> de Janeiro - Brazil
>>> >>
>>> >
>>> >
>>> >
>>>
>>>   - --
>>> Jac sm Kee
>>> Women's Rights Policy Coordinator
>>> Association for Progressive Communications
>>> www.apc.org | erotics.apc.org | www.takebackthetech.net
>>> Skype: jhybeturle | Twitter: jhybe
>>>
>>
>>
>>  --
>>  Salanieta Tamanikaiwaimaro aka Sala
>>
>>  Tweeter: @SalanietaT
>> Skype:Salanieta.Tamanikaiwaimaro
>> Cell: +679 998 2851
>>
>>
>>
>>
>>  --
>>
>> Univ.-Ass. Mag. iur. Matthias C. Kettemann, LL.M. (Harvard)
>>
>> Institut für Völkerrecht und Internationale Beziehungen
>> Karl-Franzens-Universität Graz
>>
>> Universitätsstraße 15/A4, 8010 Graz, Österreich
>>
>> T | +43 316 380 6711 (Büro)
>> M | +43 676 701 7175 (mobil)
>> F | +43 316 380 9455
>> E | matthias.kettemann at uni-graz.at
>> Blog | internationallawandtheinternet.blogspot.com
>>
>>
>> --
>>
>> Mag. iur. Matthias C. Kettemann, LL.M. (Harvard)
>> Teaching and Research Fellow
>>
>> Institute of International Law and International Relations
>> University of Graz
>>
>> Universitätsstraße 15/A4, 8010 Graz, Austria
>>
>> T | +43 316 380 6711 (office)
>> M | +43 676 701 7175 (mobile)
>> F | +43 316 380 9455
>> E | matthias.kettemann at uni-graz.at
>> Blog | internationallawandtheinternet.blogspot.com
>>
>>
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>
>
> --
> Centro de Tecnologia e Sociedade
> FGV Direito Rio
>
> Center for Technology and Society
> Getulio Vargas Foundation
> Rio de Janeiro - Brazil
>
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-- 
Salanieta Tamanikaiwaimaro aka Sala

Tweeter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
Cell: +679 998 2851
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