What does the state of current regulation tell us? In general, at the regional level, we can observe some conclusions and trends common to all the countries analyzed, offering a context to the charts that can be found on this platform:

 

  • Recurring themes The validity of the issues on the legislative agenda supposes some specific attention or concern around them. This attention can be due to different reasons: concerns of legislators, agenda of the executive branch, political and social situation, etc. In the Observatory, these issues are referred to as "objectives" that the laws pursue. What does the legislator want to protect with the proposed regulation? In the accumulated of the 8 countries, these topics or objectives that are most valid are: the protection of national security; protection of minority; equality and no discrimination; reputation and honor; and access to information.

 

  • Compatibility with the tripartite test of the Inter-American System The objectives can be legitimate or illegitimate. The legitimacy of a restrictive measure of freedom of expression in the regional framework is given by the American Convention itself. However, in general, the problems of the initiatives in the region are not in the identification of the objective. Furthermore, many of them are legitimate and refer to relevant problems that require the attention of congresses. The problems point to the means through which it is restricted (generally due to the creation of penal types); and subsequently for its wording and (lack of) specificity of the restrictions that arise. In general terms, many of them do not comply with the elements of legality, as they present vague or ambiguous terms, grant excessive discretion in the interpretation, etc., and of necessity in a democratic society and the proportionality of the selected measures.. These are, for example, the cases of Argentina and the bills on dissemination of non-consensual pornography, in Mexico, the initiative of the crime of instigation to crime against security, or in Guatemala and the project on cybercrime and cybercrime. The problems of the texts are that they can result in very serious risks for freedom of expression and lend themselves to generate situations of prior censorship, excessive discretion by judges and prosecutors, persecution covered by ambiguous laws, among others.

 

  • Words behind bars In the region, a certain tendency to criminalize expression persists and this is a serious problem. Many of the legislative responses to freedom of expression abuses include criminalization of conduct. Mainly, the criminalization of expressions in digital environments has had a significant advance in recent years, a situation that presents itself as a double problem: On the one hand, the creation of new criminal types in relation to online discourse -as it is in Argentina the bills about usurpation / impersonation of false digital identity-. On the other hand, it is common to find initiatives that distinguish the expression on the internet from that exerted by other media, having as aggravating medium (in several cases, social networks) where the speech circulates. In Peru several examples of this type of laws and bills, when international standards discourage this type of regulation.

 

  • Freedom of expression and internet From 2011 onwards, in the 8 countries, the number of laws and bills that propose to regulate the circulation of discourse on the Internet has gradually increased. The projects permeate the borders (and the Legislatures) of the countries of the region, mainly when we talk about legislation on freedom of expression on the internet. Initiatives such as the reforms of copyright laws in Chile, Colombia or Mexico that came from the hand of the FTA; those of “fake news”, as a usurpation of Argentina's digital identity, which can also be found in the same sense in Guatemala o Chile, are examples of this. On the other hand, the perception of the internet also varies and is manifested in, for example, bills like Ecuador's on acts of hatred and discrimination in social networks, similar to those that arose in other countries such as Venezuela. Regarding the responsibility of intermediaries, that is, of the different types of providers and platforms on the Internet, except for the Civil Framework, there is still no specific regulation in the region. If we can find debates in countries like Argentina and Ecuador, although without clarity as to their destination.

 

This is a first comment that opens a more dynamic and participatory section on our page. But also and above all, it aims to be an invitation to inquire into the different laws and bills, work with the collected material, and ask ourselves as researchers and as citizens. We appreciate any comments you can send us to make this platform a more useful tool.