Introduction: Chile’s 2010 Internet Service Provider Law
On May 4, 2010 the Chilean Congress adopted a ground-breaking new law regulating Internet intermediaries’ liability for online copyright infringement done by their users. This law implements Chile’s obligations concerning Internet Service Providers’ role in online copyright enforcement under the 2004 Chile – U.S. Free Trade Agreement. The law requires a judicial order before Internet Service Providers are required to take down allegedly copyright-infringing material from websites, disclose customer information, or terminate customers’ Internet accounts.
Chapter III of the Intellectual Property Act (Articles 85L-85U) provides a set of safe harbors for network service providers. [LINK to Chile page] If Internet service providers comply with the conditions set out in the legislation they are exempt from financial sanctions arising from copyright infringement claims. However, Internet intermediaries are still subject to injunctions, and other reasonable judicial measures aimed at blocking online access to particular alleged copyright-infringing content.
Chile’s ISP law has a unique feature that sets it apart from other similar regulatory frameworks in other countries. Chile’s notice and take down procedure is subject to a final review by a judge, rather than left to the individual ISP’s discretion.
This framework is grounded in Chile’s human rights obligations as a signatory to the American Convention on Human Rights (sometimes referred to as the San José Pact), and in foundational principles in Chile’s Constitution.
This document outlines the international human rights obligations that underpin the judicial order approach to Internet intermediary regulation taken by the Chilean government. This framework is of equal relevance to other Latin American countries that are signatories to the American Convention on Human Rights, and which are party to trade agreements with the U.S., including bilateral agreements (the Chile-U.S. FTA, Peru-U.S. FTA, Colombia – U.S. FTA, [Panama – U.S. FTA]), regional agreements (CAFTA-DR), or plurilateral agreements (ACTA)); or are in the process of negotiating trade agreements with the U.S. that include provisions on ISP liability for intellectual property infringement (the Trans-Pacific Partnership Agreement).
The American Convention on Human Rights (ACHR)
The ACHR is an international human rights treaty developed and supervised by the Organization of American States (OAS). OAS is a regional organization that includes 35 countries from the Americas. The judicial framework is grounded in the notion of due process and the rights to judicial protection of fundamental rights and to a fair trial.
Article 8 of the ACHR enshrines the right to a fair trial. It provides:
Article 8. Right to a Fair Trial
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
In addition, Article 25 of the ACHR recognizes the right to judicial protection of citizens’ fundamental rights. It provides: Article 25. Right to Judicial Protection 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. 2. The States Parties undertake: a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; b. to develop the possibilities of judicial remedy; and c. to ensure that the competent authorities shall enforce such remedies when granted.
Both provisions require countries that are signatories to provide essential human right guarantees for due process for any individual.
The Constitution of the Republic of Chile
The ACHR provisions have to be construed together with other key provisions in the Chilean Constitution. According to Article 6 of the Chilean Constitution:
Article 6.- The action of the bodies of the State must be subject to the Constitution and to the norms enacted in conformity therewith. Both the incumbent officers of said bodies or members thereof, as well as all persons, institutions or groups, are bound by the precepts of this Constitution.
The breach of this principle shall generate responsibilities and penalties to be determined by the law.
Article 6 binds all members of Chilean society, including copyright holders as well as ISPs, to abide by the terms and foundational protections built into the Constitution.
In addition, Article 19 of the Chilean Constitution enshrines the right to equal protection under law for all members of Chilean society. It provides:
19.3.- Equal protection under the law in the exercise of their rights.
All persons have the right to legal defense in the manner indicated by law and no authority nor individual may impede, restrict or perturb the due intervention of an attorney, should it have been sought. As regards the members of the Armed Forces and of Public Order and Security, this right will be governed, in connection with administrative and disciplinary matters, by the relevant norms of their respective statutes.
The law shall provide for the means whereby legal counsel and defense may be rendered to those who should have been unable to obtain them on their own.
No one can be judged by special commissions, but only by the court specified in the law, and provided such court has been established prior to the enactment of said law.
Decisions decreed by a court vested with jurisdiction must be based upon previous legally held proceedings. It will be the responsibility of the legislator to establish, at all times, the guarantees for a rational and just procedure.
The law cannot presume de jure criminal liability.
No crime shall be subject to penalties other than those prescribed for by a law enacted prior to the perpetration of the crime, except where a new legislation might favor the interested party.
No law may establish penalties for crimes which have not been expressly described therein;
9.4.- Respect for and protection of private life and the honor of the individual and his family.
19.26.- The assurance that the legal precepts which, by mandate of the Constitution, regulate or complement the guarantees established therein or which should limit them in the cases authorized by the Constitution, may not affect the rights in their essence nor impose conditions, taxes or requirements which may prevent their free exercise.
Article 20 creates a constituional remedy for individuals to enforce that right in the Chilean courts:
Article 20.- He who should, due to arbitrary or illegal actions or omissions, suffer privation, disturbance or threat in the legitimate exercise of the rights and guarantees established in Article 19, numbers 1, 2, 3 (paragraph 5), 4, 5, 6, 9 (final paragraph), 11, 12, 13, 15, 16 relative to freedom to work and the right of freedom of choice and freedom of contract, and to what is established in the fourth paragraph and numbers 19, 21, 22, 23, 24 and 25, may on his own, or through a third party, resort to the respective Court of Appeals, which shall immediately take the steps that it should deem necessary to re-establish the rule of law and ensure due protection to the person affected, without prejudice to the other Rights which he might assert before the authorities or the corresponding courts. The appeal for protection in the case of No 8 of Article 19, shall also be applied when the right to live in a contamination-free atmosphere has been affected by an arbitrary or unlawful action imputable to an authority or a specific person.
In sum, the constitution is enforceable against any member of the society, recognize the rights to privacy and to due process, and sets forth a constitutional remedy against both the public and private sector in case of infringement to those rights.
ISP Regulation Obligations in the U.S. – Chile Free Trade Agreement
This is the context in which the Chilean Congress was required to implement Chile’s obligations under the 2004 U.S. – Chile Free Trade Agreement.
All U.S. Free Trade Agreements since 2002 have included detailed provisions governing ISP liability for copyright infringement in the enforcement section of the chapter on intellectual property. The provisions require signatory countries to provide "legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials" (whether or not the trading partners’ national law recognizes secondary liability for copyright infringement), and to establish limitations on ISP liability where ISPs comply with detailed conditions set out in the FTA.
Although there is no obligation in any current international intellectual property treaty governing Internet service provider liability for copyright infringement, the U.S. FTAs frame these provisions as requirements for countries to implement their existing obligations as members of the World Trade Organization, under the 1994 Agreement on Trade-Related Aspects of Intellectual Property (TRIPs). The provisions in each agreement begin with wording that precisely mirrors the language of Article 41 of TRIPs:
For the purpose of providing enforcement procedures that permit effective action against any act of infringement of copyright covered under this Chapter, including expeditious remedies to prevent infringements and criminal and civil remedies, each Party shall provide, consistent with the framework set forth in this Article...
Article 17.10.23 of the intellectual property chapter of the U.S.-Chile FTA requires Chile and the U.S. to provide safe harbors against liability for copyright infringement for Internet intermediaries that make cache copies, host content at users’ request, offer search services and provide links and other location tools, on the condition that they take down alleged copyright-infringing content upon receiving a valid notice from a copyright holder.
Paragraph (f) of that Article provides that:
For purposes of the notice and take down process (…) each Party shall establish appropriate procedures through an open and transparent process which is set forth in domestic law, for effective notifications of claimed infringement, and effective counter-notifications by those whose material is removed or disabled through mistake or misidentification.
The U.S.-Chile FTA thus gives Chile and the U.S. considerable flexibility in how they implement the notice and takedown system. The requirement for "effective notifications" and "appropriate procedures" does not restrict the process to notices from private parties or administrative bodies. Given that a private party notice and takedown procedure could potentially be in conflict with the requirements for due process and judicial protection of citizens’ human rights guaranteed in the Chilean Constitution and ACHR, the conclusion arrived at by the Chilean Congress and reflected in the 2010 Intellectual Property Act was that ISPs would only be required to take down allegedly infringing content upon receipt of an order from a judge, after a judicial review. .The Chilean Congress believed that this framework would provide the necessary protection for the constitutionally-guaranteed fundamental rights of citizens, while implementing Chile’s obligations in the Chile-U.S. FTA.
Not Just Chile - The Relevance for Other Countries
The framework of constitutional protections and fundamental rights guarantees described above applies equally to other Latin American countries that are signatories to the American Convention on Human Rights, and other countries that have similar obligations under other regional or international instruments. Accordingly, Chile’s judicial order approach to implementing ISP regulation may also be available to other countries that are considering mechanisms for implementing online intellectual property enforcement obligations in bilateral, regional and plurilateral agreements in a way that best protects citizens’ rights of due process, freedom of expression, and privacy.