WILMAP: Chile


LEGISLATION

Law No. 20.453, August 26, 2010, establishing the principle of Net Neutrality for consumers and Internet users
 
[In general, this law tackles intermediary non-interference from the perspective of users by adding to the general rules within the General Telecommunications Act (Law Nº 18.168) new rules for internet service providers. Article 24 H states that internet providers (“all natural or legal persons that provide commercial connectivity services between users or its networks and the Internet”): a) shall not block or interfere in any way with the rights of the user to use any content, application or service on the internet; but they may take traffic management measures or block contents upon user requests (and to their cost); b) shall respect device neutrality by not limiting the right to use the internet on any legal device that does not impair use of the net or the quality of service; c) shall offer parental control services; d) shall publish information on their website regarding access characteristics, speed, quality, distinguishment between local and international linking, and service nature and warranties. Articles 24 I and 24 J establish the procedure for sanctions (administrative procedure before the Telecommunications Undersecretariat) and the regulations for minimal information conditions.]
 
Law No. 20.435, May 04, 2010, amending Intellectual Property Law
 
[Together with new copyright exceptions and limitations and the new rules for collecting societies’ tariff procedures, this amendement establishes a regime of limitations on liability for information service providers, as defined in Artice 5 Y. A number of Articles deal specifically with intermediary liability. Article 85 L provides a liability limitation for ISPs as long as they comply with the conditions and requirements of this law, regardless of potential regular civil liability. Article 85 M provides general conditions for limiting liability of transmission, routing, or connection providers that do not modify or select content, or initiate or select the destination of transmissions. Article 85 N provides general conditions for limiting liability among caching service providers that respect access and update conditions, do not interfere with access technology, do not modify content, and remove infringing materials upon legal request. Article 85 Ñ provides general conditions for limiting liability of hosting providers that do not have effective knowledge of infringing data, do not gain direct economic benefit from infringement while having the authority and ability to control it, publicly designate a representative to receive notices, and remove or block content upon legal request. Effective knowledge means an unexecuted and properly notified court order. Article 85 O establishes general conditions to limit liability for all providers except search engines, such having public conditions to enact the right to terminate agreements with repeat infringers, not interfering with TPM or RMI, and not generating or selecting content or receivers of it. Article 85 P establishes no obligation to monitor content for online intermediaries. Art. 85 Q regulates the removal procedure, including the formalities of requests (regular lawsuit requirements, plus rights, contents and URL identification), court order notice, possibility for opposition. Articles 85 R, 85 S and 85 T provide additional procedural rules for removal. Article 85 U provides notice and counter-notice conditions and requirements.]

BILLS AND PENDING PROPOSALS

Trans Pacific Partnership Intellectual Property Rights Chapter [confidential text leaked on August 30, 2013]
 
[Chile is partecipating in the negotiation of an international agreement including a section on Internet service provider liability, with countries lining up either in favour of a general notification obligation or a notice-and-takedown system with the prospect of terminating subscriber Internet access and content blocking. Chile favors the former approach.] [See M. Geist Blog post]
 
[None was currently under discussion at national level; the next government might send new bills or start new regulations.]

DECISIONS

[After the enactment of Law 20.435 in 2010, there have been no reported cases applying the new legislation to intermediary liability. All cases concerning intermediaries were brought as constitutional claims and resorted to directly on constitutionally recognized rights. Constitutional action is usually presented directly to Courts of Appeals and appealed before the Supreme Court.]
 

Superior Courts

Supreme Court, Suazo vs Reclamos.cl, 2009
[appeal decision, constitutional action, defamatory content]
 
[The plaintiff sought relief from the administrator of a website (www.reclamos.cl) where people can leave anonymous public messages with complaints against companies and services. The plaintiff, the representative of a school, claimed that the site administrator should be held liable for a slanderous accusation posted against her. The plaintiff claimed that the accusations affected her constitutional rights of freedom of teaching and property. A co-plaintiff claimed that his freedom to work was equally affected. The Court of Appeals rejected the claim by recognizing the need to enforce freedom of opinion and freedom of information without prior censorship. Data protection and regulation of journalism were also mentioned by the Court to prevent identification of possible defendants. The Court of Appeals established that providers only fulfill the duty to provide the means of communications. The Supreme Court rejected the appeal, establishing that there was no abusive exercise of the right to express an opinion and inform without prior censorship. The Supreme Court considered that there is no duty of ex ante control by the website administrator.]
 

Lower Courts

Court of  Appeals of Valparaíso, Abbott vs Google, 2012
[constitutional action, defamatory content]
 
[The plaintiff sought an injunction and relief against a series of Chilean websites as well as Google, claiming that the websites, along with blogs hosted by Google, were making slanderous or offensive accusations against the plaintiff, who is a lawyer. These websites claimed that the plaintiff is corrupt and collaborated with the military dictatorship in the second half of the 20th Century. The Court agreed with the plaintiff and ruled that the right to plaintiff’s honour was affected. The Court ordered the websites to remove the offensive content, including blog posts with offensive accusations. Additionally, the Court ordered Google to establish a filtering mechanism that automatically prevents the publication of “unequivocally” slanderous content. The decision was not appealed.]
 
Court of Appeals of Concepción, Fuentes vs Entel II, 2007
[appeal decision, civil action seeking damages for defamatory content]
 
[Plaintiff sought monetary relief from both the internet service provider (Entel) as well as the parent of the person that posted a defamatory content (see below Entel I). The Court recognized the lack of rules for internet content. General damages rules are to be applied. However, the action was rejected. The service provider is not liable under general rules as it could not control the uploaded content. Additionally, the natural person was held not liable as the alleged infringer was already of age.]
 
Court of Appeals of Concepción, Fuentes vs Entel I, 1999
[constitutional action, defamatory content]
 
[Stating that liability for defamatory content - a false offering of sexual services by the minor daughter of plaintiff - may be exclusively casted upon the provider of the content, not the manager of the website or the provider of connection. This decision recognizes the lack of rules for internet content, but it also recognizes that only ex post control over content is possible or to be expected. Upon noticing “evidently” offensive content, providers should take measures to prevent further harm, but they are not liable for damages before that moment. The decision establishes, but does not explain, the principle of “freedom of the information that circulates on the internet”.]

OTHER RESOURCES

Matías Hercovich Montalba, Responsabilidad de los ISP por contenidos ilícitos o infractores de terceros, 2(1) Revista Chilena de Derecho y Tecnología (2013)

CONTRIBUTORS

Juan Carlos Lara Gálvez
Derechos Digitales
Emailjuancarlos at derechosdigitales.org

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