Law, State and Telecommunications Review

Journal Information
ISSN / EISSN : 1984-9729 / 1984-8161
Published by: Universidade de Brasília (10.26512)
Total articles ≅ 149
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Sarah Osma Peralta
Law, State and Telecommunications Review, Volume 12, pp 1-13; https://doi.org/10.26512/lstr.v12i2.34688

Abstract:
Purpose ”“ Considering the relevance of personal data protection, this article focuses on the identification of the criteria used by Colombian Courts regarding the rights to access, modification and erasure personal data within the context of information made available through search engines. This framework will expose the different cases ruled by the Colombian Constitutional Court as it attempts to highlight which were the criteria used by the courts that brought them to rule that search engines are mere intermediaries between the content makers and data subjects. Finally, this study aims to contribute not only to the data protection legal literature in Colombia, but also, to improve the possibilities to effectively implement user´s rights of online search engines in Colombia. Methodology ”“In order to achieve the purpose of this research project, the following methodological strategies will be employed: (i) Legal-analytical study, by way of reviewing the Colombian regulatory framework in order to map out main rules regarding the fundamental rights to access, modification and erasure of personal data, and determining which ones are the aspects hindering the effective implementation of the rights; (ii) Legal-theoretical study, where it reviews the issues identified by legal scholars as hampering the implementation of data protection rights in general; (iii) Legal-empirical study that aims to raise awareness regarding the incidence of the activities carried out by search engines in the life of data subjects. Findings ”“ The Colombian Constitutional Court has seen search engines as mere intermediaries, meaning they do not have to rectify, correct, eliminate or complete the information listed in the results they provide. This approach demands that the Judiciary enforces the existence of a right to request the erasure of links and the need of procedures provided by them to do it effectively without erasing or altering the content of the website. This delisting process should not be arbitrary based on conditions that allow data subjects to ask the erasure of links associated with their names. In the European Union, the conditions to get those results delisted are inadequacy, irrelevance, or excessiveness in relation to the processing purposes. The current position of the Constitutional Court about the search engines role and their responsibilities has not protected the user’s fundamental rights to privacy, reputation, and honor. Therefore, a more committed study on behalf of the Court is required. Practical Implications ”“ In the Muebles Caquetá Case, the Court must point out the importance of the activities carried out by online search engines, and force them to face the implications of being a “controller” of the processing of personal data that takes place within their services. I suggest that the Court itself should draft clear delisting guidelines considering the opinions of a group of impartial experts, civil society representatives and the local Data Protection Authority. Originality ”“ Considering the implications posed by personal data and data mining, this article identifies the legal and regulatory framework surrounding those activities and in way contribute to create a data protection culture in Latin America, raise awareness regarding the incidence of search engines in the life of data rights holders, identify possible disconnections between the existent regulatory framework for personal data rights, and facilitate the cooperation between Courts and stakeholders of the telecommunication and media sectors, based on the common goal of fulfilling the public interests of ensuring data protection rights.
Law, State and Telecommunications Review, Volume 12, pp 91-117; https://doi.org/10.26512/lstr.v12i2.34692

Abstract:
Purpose ”“ The main purpose of this article is to analyze the aspects of the responsiveness approach adopted by European and Brazilian lawmakers in the elaboration of data protection rules, such as GDPR and LGPD. Methodology ”“ The applied methodology is based on the responsive regulation theory and, additionally, the network governance theory, through the comparative analysis of personal data protection legal frameworks in Brazil and the EU. Findings ”“ Based on the comparative analysis of the GDPR and the LGPD, it is verified the adoption of escalated regulatory techniques of Ayres and Braithwaite’s enforcement pyramid in the developed of these norms, as a strategy adopted by lawmakers to guarantee a greater compliance from regulated entities.
Law, State and Telecommunications Review, Volume 12, pp 64-90; https://doi.org/10.26512/lstr.v12i2.34691

Abstract:
Purpose ”“ The study establishes the determinants of investment in fixed broadband networks and, in particular, to evaluate the impact of economic competition on it, we present a panel model on fourteen countries, including four Latin American. The model uses quarterly data for the period from 2013 to 2018. Methodology ”“ The adopted approach is based on the debate on the relationship between competition and investment, on economic theory, and on findings of studies on the association within investment and competition oriented to European countries and the United States. Findings ”“ Derived from the results, evidence is provided on the existence of a positive relationship between competition and speed of fixed broadband services. The analysis identifies that competition, in services as well as between networks, is favorable for the investment of fixed broadband services. Likewise, the expansion of digital audiovisual entertainment services, the penetration of IoT services, and the higher penetration of mobile broadband, favorably influence investment in networks. Practical Implications ”“ This result provides useful information for policy design in the telecommunications sector. Encouraging network expansion, some regulatory recommendations are to be presented. Additionally, this study provides information for countries that have not been included in this topic, specifically Mexico and others in the Latin American region.
Mireia Moreso Cantalejo
Law, State and Telecommunications Review, Volume 12, pp 38-63; https://doi.org/10.26512/lstr.v12i2.34690

Abstract:
Purpose ”“ Approach and analyze the technological industries in society, as a global society, and how it is approached from the legal point of view. This study aims to make an analysis of the social context and technological progress and determine what main legal problems arise. There is also the purpose of investigating what impact new technologies have had in the audiovisual industry globally, taking into account the emergence of new digital business models, in order to determine their legal nature. Methodology ”“ The methodology used is mainly based on the analysis of the different Laws that regulate the digital market. The approach has been directed at European claims to respond to new digital models and discover if the result has had an effective application on citizens. Findings ”“ The study sets out as objectives achieved cross-border access of audiovisual platforms in the European territorial area. Objective met in a positive way but still with many inconveniences. It is noted a clear advantage for users, but with universal challenges, such as the exploitation of audiovisual content within the Right to information. Practical Implications ”“ If the laws were more current, companies and technological industries could give a more effective response to society, while creating wealth. It also shows the comparison between a European system, more protectionist towards the user, for example, with the protection of personal data, with respect to the Latin American system law. These differences impact economically differently in each country. Originality ”“ The study detects the most fragile points, the current conflicts of the digital platforms and shows the lines to follow through public policies.
Eduardo Carrillo, Maricarmen Sequera
Law, State and Telecommunications Review, Volume 12, pp 14-37; https://doi.org/10.26512/lstr.v12i2.34689

Abstract:
Purpose ”“ The research aims to observe and describe the legal framework and implementation practices of personal databases management in the Social Security Institute (IPS), the most important public social insurance system in Paraguay. Methodology ”“ The research is exploratory, consisting on both substantive and procedural law analysis of health information storage regulations and its compliance. Also, interview to private companies, the public sector and one qualified worker insured by IPS are conducted to better understand collection, storage and maintenance of health records databases. Findings ”“ Research indicates evidence that biometric data storage of insurers does not have adequate regulation for its protection. It also shows evidence that private companies don’t deliver by default medical records to workers, as well as potential access to these records by administrative personal. Evidence also signals that clinics performing medical examinations request more sensitive information than required by law. Research limitations It is identified that a broader private company sample could be of use to better understand workers health record collection. Also, third party auditing IPS IT systems could be of use to further understand information management practices and vulnerabilities. Practical Implications ”“ A series of discretional practices are identified, signaling regulatory standardization urgency for all actors. A comprehensive Protection of Personal Data Act is needed. Originality ”“ No comprehensive research targeting the IPS system and its health personal data management processes is identified. The research is considered an initial contribution to the state of the art on the subject and specially to biometric collection and storage.
Law, State and Telecommunications Review, Volume 12, pp 118-132; https://doi.org/10.26512/lstr.v12i2.34714

Abstract:
Purpose ”“ The purpose of this paper is to investigate the adequacy of the legal nature of the National Data Protection Authority (ANPD), proposed by Law no. 13.853/19, to the reality of Brazilian Law, starting from the theoretical bases developed by the Regulatory State Theory regarding the valorization of the technical decision immune to political influences. Methodology ”“ This study adopts the doctrine revision of the Regulatory State Theory, aiming to point the theoretical bases on the autonomy of the regulatory entities, in order to make the comparison of adequacy between the legal nature of the ANPD placed in Law no. 13.709/18 and the material concept of administrative decentralization. Findings ”“ The study demonstrates that the Brazilian legal-political tradition will make it difficult for the National Data Protection Supervisor to act in view of its legal nature as a public body that is part of the structure of the Presidency of the Republic, which greatly relativizes its autonomy. Practical Implications ”“ The probable revision of the legal nature of the ANPD, as provided for in art. 55-A, §1, of Law no. 13.709/18, and the effectiveness of the performance of this National Authority. Originality ”“ A very current issue in the Brazilian legal environment is the suitability of the companies that will be affected by the entry into force of the General Data Protection Act (Law no. 13.709/18) in August 2020, due to the comprehensive potential of this law. This paper studies the legal nature of the National Data Protection Authority, a regulatory body that will have a relevant regulatory role in the data economy society, highlighting the relevance of the study to the sector.
Law, State and Telecommunications Review, Volume 12, pp 187-211; https://doi.org/10.26512/lstr.v12i2.34718

Abstract:
Purpose ”“ The paper aims at assessing the evolution of the digital divide in Brazil in the last decade from a multidimensional perspective, going beyond the issue of access. How have the inequalities in the use of Internet in Brazil varied through time? Methodology ”“ The paper investigates the relationship between individual socioeconomic characteristics and household characteristics, and the pattern of Internet access and use in Brazil using multivariate analysis, drawing on data from national ICT surveys between the years 2000 and 2019. Findings ”“ The results show that increasing access do not necessarily result in a more equitable adoption and use of available online resources. They highlight a persistent “digital elite” capable of a more sophisticated use of the Internet. The maintenance ”” and even the increase ”” of differences in the use of Internet is in line with part of the literature on digital inclusion. Practical Implications ”“ The study underscores the importance of developing methodological frameworks to better measure the digital divide, allowing it to be used as the independent variable in broader analyses of income inequality and access to public services, for instance. Additionally, the persistence of a "second level digital divide" in Brazil points to the need for policies that address the "digital skills gap" enabling the realization of the Internet's potential to ease social disparities. Originality ”“ Despite the existing literature on the relationship between online inequalities and other kinds of inequalities, there are still few empirical studies, especially with a multidimensional perspective.
Carlos Goettenauer
Law, State and Telecommunications Review, Volume 12, pp 172-186; https://doi.org/10.26512/lstr.v12i2.34716

Abstract:
Purpose ”“ This work intends to map and analyze, through the polycentric regulation proposal introduced by Julia Black, the contribution of the actors involved in the creation of the data protection regulatory legal regime in financial system, after the introduction of the cyber security policy by the Central Bank of Brazil, the approval of the General Data Protection State and new financial business models. Methodology ”“ It first analyses the regulatory and statutory norms associated with data protection in the financial system, combined with the cyber security policies published by financial institutions. After this, it identifies the actors who contribute to the regulatory environment and their respective regulatory role. The final step is the creation of a table to categorize each actor’s functions in the regulatory regime. Findings ”“ The research concludes that the contracts between financial institutions and technology play a major role on creating and hybrid regulatory environment for data protection. Originality ”“ The work is an original analysis of the data protection regulatory legal regime in financial system, using polycentric regulation not only as a theoretical reference, but also as a methodological framework.
Carlos Henrique Almeida José e Azevedo
Law, State and Telecommunications Review, Volume 12, pp 133-171; https://doi.org/10.26512/lstr.v12i2.34715

Abstract:
Purpose ”“ This paper proposes an enforced self-regulation model for the regulation of video streaming OTT services in Brazil. The proposed model seeks to presents itself as an alternative to the existing regulatory asymmetry in which Cable TV and its similar are regulated through Law no. 12,485 while Video Streaming OTT services are provided to the public without any regulatory burden. Methodology ”“ Through a literature review of the Responsive Regulation Theory, this paper presents a proposed model to the regulation of Video Streaming OTT platforms in Brazil based on the enforced self-regulation model as described by Ayres and Braithwaite. Findings ”“ Considering the Brazilian legal environment and the successful use of negotional legal tools, an enforced self-regulation model for Video Streaming OTTs arises as a feasible alternative for the current regulatory asymmetry between such services and Cable TV. Originality ”“ In an unprecedented manner in Brazil, this paper proposes an enforced self-regulation model as an alternative to the regulation of video streaming OTT services in Brazil. The relevance of such research lays upon the notorious success of such platforms in the Brazilian market and upon the current worldwide debate on the regulation of OTT services.
Clara Luz Alvarez
Law, State and Telecommunications Review, Volume 12, pp 9-57; https://doi.org/10.26512/lstr.v12i1.24914

Abstract:
The emergence of new technological platforms to access online services and content have transformed the media landscape dramatically. They require policymakers to reexamine the decades-old regulations traditionally addressed to broadcasters and telecommunications providers. Must-carry, retransmission consent, and “carry one, carry all” rules in particular require reconsideration, if not reform. Must-carry regulation mandates cable and satellite pay TV providers to retransmit free-to-air broadcast programming. Such regulations have been adopted around the world, including the United States, Mexico, and France, the subjects of this article. Policymakers in these three countries have offered a variety of justifications for such rules, including the promotion of competition, local news and content, viewers´ rights, and content diversity. Recent data and case law, however, strongly suggest that emergent platforms to access online services and content undermine the standing justifications for must-carry, retransmission, and “carry one, carry all” rules. This Article argues that policymakers should consider other regulatory mechanisms to achieve the original reasons for such rules. The dramatic increase in the variety of devices (e.g., TV, tablet, mobile phones, smart TVs), service and content distributors (e.g., free-to-air TV, cable TV, internet), and service providers (e.g., broadcasters and “over-the-top” internet providers) strongly suggests that policymakers must reconsider the current approach. But any amendment to current regulation will depend on internet penetration and access to new video distribution platforms in a given geographic area. That is, without internet access, free-to-air TV might continue to be an important platform for service and content distribution.
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