Following is a written product of my findings, foundations, considerations and contributions for the right to apply clearly and properly projects in information technology and communication (TICs) is exposed.
By: Camilo Alfonso Escobar Mora
There is uncertainty about the legal regime that applies to ICT. For many legal rules that exist are not consistent or applicable to the new digital and technological convergence reality. For others it is clear that there is a law applicable to ICTs because they are a means of communication and management, but not an end in itself (ie not reframe the world, and therefore the right).
To overcome this dilemma is pertinent to make a clarification about how the law applies in ICT projects and then make some reflections on how these standards can be met preventive, appropriate and effective way.
ICT have two major management models. In a first management model ICT has an instrumental sense as they serve as a transactional environment, but they are not an end in itself (which is what happens when they serve to publish or exchange information but are not fully transactional).
In a second model of ICT management they have a sense finalist based on which provide an interface full interaction between subjects and objects involved in a communicative relationship. For example iTunes is self-sufficient -finalista- as both the platform and its products are naturally digital holistically and involve the entire communication process between the parties. Even creating communication tailored user applications, giving way to an innovation in the dynamics of a particular model, or even creating a new management model management unknown in the prior art.
For both kinds of management models, they have established legal principles to give full recognition and legal and probative value to ICT. These principles (most are enshrined in the Act 527 1999, in Colombia) are:
to). Principle of functional equivalence: This refers to the recognition of legal and evidentiary to the media and digital media effects, since they are equivalent (not like) in their functions and effects on traditional media and physical media.
Therefore, where a rule provides that it must meet a certain requirement, designed for traditional media requirement, generating legal effects, this requirement may be satisfied using media content and digital media (either at the instrumental level or finalist) always is met (not identically -analógica- but comparable) fully with the purpose, scope, formalities, substance and aim of that rule,
It is that what matters is that compliance with the formalities and essential and natural elements that set standards for a particular act or legal business relationship, though its shape to accomplish them use different media and traditional logistic models.
As shown, ICT must undergo the same prerogatives, effects, formalities, functions, duties, rights and legal purposes that they are designed (or conceived) for an act or legal business that develops traditional fitness.
This allows the actions undertaken within the information technology and telecommunications count on security, recognition and legal validity.
So what to do in each ICT project is to generate equating to comply with the formalities, functionality, and purpose required by the legal standards created for systems, performances, media and human relations based or achieved in atoms (ie media physical -tradicionales-) into systems, performances, media and human relationships formed based or achieved in bits (ie digital media).
This is done by designing instruments of preventive law tailored to each of its variables (eg terms and conditions, policies of protection of personal data, contracts, software licensing, sales contracts, contracts for the provision of services, contracts with advertisers, contracts with partners, contracts with suppliers, legal protocols of information security, legal manuals of good practice for consumer protection in digital media, among others).
And if that employment of technical security measures accompanied (as is the access control platform) compliance with the law in ICT enhanced. Since it is not just about having documents but to generate technological and human realities that allow live, feel and enjoy the right through technical measures to comply with the duties and rights that are applicable in a respective platform and are enshrined in each of the instruments of preventive law to be created and incorporated (eg if the policy of protection of personal data provides that the data collected will be stored on secure servers, as technical measure say -that have a server will allow sure- that the legal premise is a greater reality. or if in the manual of good practices consumer protection is established that it can not project false advertising as doing a video to accompany a graphic or textual ad will enable the consumer to understand the message and it will be an experience of constant and very nice- preventive law.
b). Principle of technological neutrality: Refers to the rules can not bind the production of legal effects to an environment, context or specific technology.
Then there is full implementation, and coverage under the rules (substantive, procedural and evidentiary) in a legal relationship, regardless of technology or procedure that is used by its participants. And in correlation to this, all technology is subject to the law because they are simply means, not ends in themselves and always will be under the sovereignty and regulations of the State or States where they operate or cause effects.
In complement, this principle determines that standards should recognize the effective result that provides the technology, not the technological means or modus operandi that is used (ie it must address the substance and not the form. They must identify and address all purposes to generate a specific technology and as it will determine what the regulations that apply), to provide thereon a proper application of substantive and procedural law, and a control for the alleged loopholes, as if technologically neutral standards are the right does not have loopholes in ICT, as a matter of adapting, by these principles, their application to this medium.
c). Principle of the prevalence of preexisting substantive law: Refers to the traditional law should not be changed, altered or ignored, but precisely prevail in its application in digital environments (in any kind of project ICT).
The path of legal science has established categories and principles of law that are flexible, transverse and ductile applicable to the various stages, contexts and developments of humanity without distinction to the quality of subjects, objects (channels, media, media, and environments) and products (goods or services) involved in a legal relationship. Therefore, in each ICT project will apply the domestic, foreign and international standards that is binding according to its operating model and the effects it causes.
Only they must create new standards when existing regulatory elements resulting really insufficient (and indeed even a standard is insufficient or ambiguous at some point, aspect or theme, the general principles of law always apply for example the principle of good faith apply to any ICT development, including teleportation if you get to create-. therefore the law is neither fall short against ICT).
d). Principle of net neutrality: Refers to the power of intervention that have the bidders of an ICT project (either service providers Internet access providers, online services, producers, suppliers or marketers, both of character public and private) in relation to the degree of control or freedom -permisividad- that give users on attitudes, access and digital content (audio, voice, image, text, or combinations thereof) that they store, transmit, create emit, share and generally managed through their networks, infrastructure, platforms, services and / or applications.
This principle is twofold (-posturas cosmovisiones):
- For some there must be full freedom in data traffic because no one has sovereignty in the ICT and nobody can alter your navigation, operation and spontaneous use (eg for this view, the Internet began as a project and free media and is not interactivity valid limit on the data traveling over the network or the activities taking place within it).
- For other must exist prior control over all data traveling in an ICT project or any action that develops in this way to avoid foreseeable damages and mitigate foreseeable risks (eg for this position, manager a social network should verify the data content and activities that a user will submit to another and only allow shipment if it is not illegal-that is if there is certainty that it will not cause damage or create a high risk of damage -).
Both views are limited and adjusted in the theory of abuse of rights by which they can not abuse the exercise of the right to freedom nor the exercise of the right of control. This because the right of a person can only get where you start the right of another person and can only be restricted when there is a right an official order of court or administrative nature so provides.
Then in each project should generate a balance (proportionality) between freedom and control (restriction) as the variables that are present in each ICT project. Based on its nature, purpose and effects will be determined as validly do; whether it is for example if an application that projects data minors are required to be applied more control or if for example it is a blog about the weather be no more control than ordinary, and therefore more freedom will be provided .
However, to achieve a preventive compliance that are applicable to an ICT project should determine the kind of platform, infrastructure, data, content, services, sector, territory, and business model involved.
It is clear that the law applies without problems in ICT under previously illustrated the principles of legal validity. Thus the 527 1999 of Law is the base standard and in complement to it, depending on the business model and management involved apply its sectoral regulation.
Therefore, in each ICT project should create legal instruments of preventive law tailored to each of its variables and regulations applicable to it according to its nature, purpose and effects, for example (are some of the instruments reiterate previously indicated when the principle of functional) equivalence illustrated: terms and conditions of use; policy of protection of personal data; concrete, visible and clear legal legends on each screen to be projected to the user; contracts tailored to businesses and participants who are present in each project; manuals legal protection and management of intellectual property; codes of conduct for consumer protection; legal models of information security; permanent legal training; trust marks, certification marks, etc.
Then the problem of the law is not an object but a subject, because the right if it is complete and applicable to any development or human subject (eg ICT), the problem is the people who know, do not apply systematically, or who they do not know a specific concrete landing or variable case (it is a work of creativity with quality and strategy).
Thus legal certainty (and trust) in ICT is achieved from the ability to design preventive solutions and tools right in each of its stages of interaction with users.
These inputs preventive law must be present from the navigation tool (ie in a contractual relationship) to carry out transactions within it (ie in a contractual relationship if it comes to platforms private companies or the provision of a public service if it is platforms that meet a public function).
This is allowed in each ICT project compliance with the duties and rights that enshrines the general and special regulations that apply to each case by a user experience accurate, consistent, minimalist ideal, creative and grounded. So ICTs can design, develop, make and execute with efficiency, safety, confidence and legal innovation.
Camilo Alfonso Escobar Mora is General Manager Jurídia, Empresa Preventive Law for all types of ICT projects and issues. You can contact him at firstname.lastname@example.org