The path of the norms of the right to communication and digital rights in the proposal for the New Constitution of Chile.  

This July 4th, it has finally been delivered  the text of the new constitution for Chile, with a total of 11 chapters and 388 articles that will be approved or rejected in the next national plebiscite on September 4, 2022, after exactly one year of work by the Constitutional Convention. A total of 20 of these articles refer to the right to communication and digital rights. It is an unprecedented and key discussion process for the recognition of constitutional guarantees that are strategic in society due to their impact in reinforcing the value of freedom of expression, the possibility of democratizing the media system and the centrality that technologies have. digital in the present and future society. 

Several of these issues and demands had been accumulating and being debated from the “local citizen dialogues” (an initiative implemented during the second period of the Bachelet administration, which served as a preamble to the constituent process); and in several self-convened citizen councils that were held during the period of the sociopolitical crisis called "outbreak or social revolt" on October 18, 2019, which was the trigger for agreeing to convene the constituent process. 

The challenge of discussing the details of these proposals for articles or regulations on communication and digital issues was assumed by the conventional members of the  Commission 7 of Knowledge Systems, Cultures, Sciences, Technologies, Arts and Heritage, in an exercise of learning, listening and dialogue through the mechanisms that were proposed for the process. These consisted of: public hearings, proposals for initiatives of popular norms and councils, in addition to the proposals that were worked on and presented by the conventional themselves. Each norm proposal was voted on in the plenary session of the Constitutional Convention between January and May of this 2022, with a requirement of 2/3 of the plenary for approval for its inclusion in the final text. 

In the already published proposal, article 83 in subsections 1 and 2 establishes that “1. Every person has the right to produce information and participate equally in social communication. The right to found and maintain means of communication and information is recognized. 2. The State will respect the freedom of the press and will promote the pluralism of the media and the diversity of information”. In addition, article 84 mentions that “andThe State encourages the creation of communication and information media and their development at the regional, local and community levels and prevents the concentration of ownership of these”. The existence of a decentralized and independent public communication and information media system is also established (article 85).

The right of universal access to digital connectivity and information and communication technologies, consolidates in article 86 a proposal that raises the requirement for the State to reduce and close the gaps in access to digital connectivity, when currently the General Telecommunications Law ( dating from the 70s) does not recognize the Internet as a public service. It also establishes the recognition of the telecommunications infrastructure as of public interest (article 86 paragraph 6), the protection of personal data and informative self-determination (article 87), the creation of a National Agency for the Protection of Personal Data (article 376) , guarantees in terms of computer security (article 88) and a life free of violence in digital spaces (article 89), and the right to digital education, from basic digital literacy to the development of other skills throughout life of a person (article 90).

expectations and learning.

What were the expectations in relation to a greater democratization of communications in a country with data and a diagnosis that highlights the situation of media concentration? What does this imply for the formation of new rules of the game in the media sector? And how many and which are the “new” digital rights that should/must be consecrated?

The expectations in all the subjects were many. This is a new constitution that not only seeks to put an end to the Constitution inherited from the Pinochet dictatorship, but also seeks to provide a solution or encompass a series of basic social demands, which highlight situations of inequality and inequity accumulated over decades, but also highlight key aspects such as participation and recognition of gender parity in democracy and its participation systems, the principle of plurinationality (the recognition of native peoples), the ecological and socio-environmental sustainability challenges associated with a time of climate crisis. By the way, for the sectors related to the field of technology, it was the opportunity to propose a "digital constitution" that would integrate key dimensions such as access and connectivity, education and the development of specialized skills, the promotion of innovation, and for the communications and media sector, an opportunity to incorporate various dimensions of the right to communication in aspects such as pluralism and diversity.

Many of the rights related to communication and digital technologies are considered new generation because they go beyond what are fundamental human rights (eg the right to education, housing or health). They are also often considered rights "of the future," even though they are very much of the present, because they have a direct impact on a society crisscrossed by the dynamics and tensions associated with the centrality of digital media technologies in aspects such as: freedom of expression, pluralism, the limits to the concentration of ownership, access to digital connectivity and technologies, access to information, the use of the radio spectrum as a public good, the protection of personal data and privacy, the guarantee of a life free of digital violence, among others.

El public hearing period, included presentations and the presence of a large number of civil society, academic and private sector organizations related to these issues, who had the opportunity to raise a number of issues that added up to a list of more than 20 proposals for standards or popular initiatives regulations for these rights. 

Not all proposals were included and collected in the text. For example, they were not: the recognition of the community media system in particular, the creation of an institutional framework for technological-media convergence, the right to media education (media education), the protection of the work of journalists and communicators or recognition of “digital commons” , among others (which can surely be taken up in the future in the form of bills or public policies). 

But what it is necessary to highlight is that this constitutional process has also made it possible to put a discussion at the center of the public debate that, leaving aside the technicalities or legal terms, began to bring people closer to issues that are not necessarily considered as rights that they have an impact in their scope and depth for everyday life. 


The challenges towards the exit plebiscite 

We have summarized the list of topics of the articles and constitutional guarantees incorporated in the final text in the following table:

Right to Communication Digital Rights
-Freedom of expression

-Right to Social Communication

-Pluralism, diversity of media and information and freedom of the press

-Limits to the concentration of media ownership

-Promotion of media creation at regional, local and community level

-Right to rectification

-Access to public information

-Recognition of the public media and information system

-Recognition of telecommunications infrastructure (networks and connectivity) as being of public interest

-Right of access to digital connectivity and information and communication technologies

-Net neutrality principle

-Adequate and effective connectivity quality and speed conditions

– Digital education

-Guarantee of digital spaces free of violence

-Informatic security

-Protection of personal data and creation of a National Agency (autonomous) for the Protection of Personal Data 

– Political and social participation through spaces and digital media

-Digital accessibility (in relation to the elderly and people with disabilities)

-Digital disconnection (regarding the right to work)

During the period of discussion of these issues in the plenary session of the Convention, ignorance, technical conceptual confusion and lack of will on the discussion of rights or guarantees were also evident. that change the relationship between the State and the private sector in terms of communications, media, telecommunications, as well as the vision in relation to the participation of other actors and sectors such as the third sector of the communities.communications and telecommunications or to increase the presence of the State as a regulator of the sector and much more active in closing gaps in the provision of telecommunications services. 

The underlying debate had to do with the necessary review of the Chilean model in both sectors: a State that has and exercises a subsidiary role that grants private use of the radio spectrum, which is not considered a public good as such in the current constitution and that, therefore, has been a problematic knot for the desire to deconcentrate the ownership of television or radio signal frequencies and put fewer technical and financial obstacles to those who want to develop a media project. This is also replicated in the concessions for the provision of services in the telecommunications area carried out by the State, in which it not only assigns bands (eg 4G or 5G) or the operation of the service in a territory to private parties, but also the financing to extend digital connectivity, leaving aside the possibility of promoting other models also based on local and community connectivity (which have been efficient and effective in effectively closing many of the digital gaps in the Latin American region). This has been a challenge for the consolidation of a media system that recognizes the value of, for example, community media such as television and radio, which were only legally recognized around 2016-2017. This also poses the challenge of promoting a broader, pedagogical and informed public debate on the importance of the right to communication and digital rights as a citizen issue.

The next vote on plebiscite of September 4, 2022 to approve or reject the New Constitution could be a milestone in the recognition of these rights over communication and digital rights, which promote both the necessary democratization of communications and media in Chile, as well as the reinforcement of public policies and new models for advancing in a more inclusive digital society. 

*Patricia Peña, academic Faculty of Communication and Image, University of Chile