[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
From: Jose M Guardia <[EMAIL PROTECTED]>
Subject: Re: FC: International update: Cuba, Spain, Australia, Bahrain, 
India, Japan


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



Jose M Guardia
Internet, Media & Technology Analyst
Barcelona, Spain
Ph. (++34) 629-74-26-24

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