1. Scope of regulation
1.1 This regulation proposal reaches online service providers when they act as intermediaries or storage platforms, search or exchange of information, opinions, expressions and other content generated by their users and that perform some type of healing or moderation of those contents (in this document: “content platforms”). Among them: search engines, social networks and other platforms for exchanging texts, images and videos.
1.2 Limits to the power of large content platforms should be structured on the basis of a co-regulation model, where self-regulation and public regulation structures are complemented to formulate legal, contractual and technical solutions that guarantee freedom of expression online, in balance with other fundamental rights1. Regulatory and regulatory instruments should be the result of a multisectoral governance process that takes into account local and regional contexts.
1.3 Platforms should directly incorporate into their conditions of service and their community standards the relevant human rights principles that ensure that the measures related to the content will be guided by the same criteria that govern the protection of expression by any means2. These principles include: transparency, accountability, due process, necessity, proportionality, non-discrimination and the right to defense and reparation. Platforms should also ensure full respect for consumer rights.
1.4 Content platforms that have significant market power in a given field of action3 (“big content platforms”) should have asymmetric regulation with respect to other providers, in view of the importance and impact that their business decisions may have on the exchange of information, opinions and cultural property, as well as the exercise of freedom of expression and public debate.
1.5 A smart regulation is one that considers in adequate and differentiated way content platforms that do not meet the above criteria and are not for profit purposes, the ones that have scientific or educational purposes, as well as those that bring together small and closed user groups of private and homogeneous condition.
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1 The institutional design and division of responsibilities is developed in chapter 7 of this proposal.
2 Regulation of online content generated by users, Special Rapporteurship on the Promotion of the Right to Freedom of Opinion and Expression of the United Nations, 2018
3 The definition of ¨Significant Market Power¨, made by an independent regulatory body, must take into account definitions of relevant markets updated for the current scenario, considering the specific function of the service, the dispute for advertising revenue and user attention time, the number absolute user and service substitutability by others.
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