From this year on from the Legislative Observatory at CELE we will be uploading a report summary with the monthly legislative activity, regulatory updates, judicial decisions and news regarding private content moderation of the 9 countries that are part of the Legislative Observatory, also offering the reader some context and links related to the topics of interest.

The months of December 2020 and January 2021 had a variable legislative activity. In Argentina, Brazil, Colombia, Guatemala, Mexico, Ecuador, Paraguay and Peru, Congresses entered in recess (although not at all the same time), so the debate of some key issues was postponed until February or March of this year. 

We would like thank our consultants for their work and contributions to this regional report: Victor Cabezas (Ecuador), Camilo Filartiga (Paraguay), Álvaro Castellanos (Guatemala), Ártur Pericles (Brazil) Luisa Isaza (Colombia), Andrés Calderón ( Peru).

Ecuador:

  • The Communication Law of Ecuador has been one of the normative bodies that has generated a great amount of debate on freedom of expression. In the opinion of some human rights supervisory bodies, the law did not meet the minimum standards on the matter. Mainly, the existence of a Superintendency of Communication dependent on the Executive with the capacity to sanction content. As of 2018, this law was subject to profound changes at the National Assembly, including the elimination of the Superintendency.

 

 

  • The Collective Rights Commission of the National Assembly has issued a non-binding report recommending the Full Legislature not to give way to the partial objection. To rarify the initial text 91 votes are required.

 

  • A recent massive leak of personal data that occurred in 2019 added to a constant siege of companies selling services via telephone and placed the issue of data protection as one of supreme importance.Ecuador is one of the few countries in the region that does not has regulations on data protection. Although the Constitution establishes that this is a fundamental right of all citizens, there are no instruments to regulate the obtaining, regulation, exploitation, use and reversibility of the permission to use personal data.
  • Today project is in treatment by the National Assembly, in first debate.

Colombia:

  • In December Congress approved a new electoral code. The project (presented by the government, by the National Registrar and the President of the National Electoral Council) was processed quickly, after receiving an urgent message from the government. Because of this, there was little opportunity for serious debate. The code contains various standards that restrict freedom of expression: it punishes expressions critical of political parties and movements, restricts the right to access some types of information from the Registry, and establishes ambiguous norms against political violence against women. The code has not yet been promulgated into law because this type of project has an automatic control of constitutionality by the Constitutional Court. It is expected that this forum will discuss the constitutionality of many provisions, including those that restrict freedom of expression.

 

  • In December, a group of 30 representatives of the Chamber presented a bill that seeks to give economic stability to the media, which have been affected by the coronavirus pandemic. To do so, it is proposed to exempt advertising services from sales tax (VAT) and create a discount on income for investments in advertising in the media. The project was well received by in the media y media associations.

Brazil:

 

Guatemala:

  • Reforms were proposed to both the Law of Non-Governmental Organizations for Social Development and the Civil Code. The legislative proposal was widely rejected by civil society, considering that the Government and Congress wish to establish mechanisms to intervene in these types of organizations and, especially, neutralize entities dedicated to the comprehensive protection of human rights of vulnerable groups. Se The President of the Republic was requested to veto the law (Decree 4-2020), but he did not do so. Given the proposal of eight constitutional actions filed by various NGOs and with the vote of four out of five holders, in March 2020, the Constitutional Court suspended the validity of the reforms. The court I consider that these "may seriously affect human rights or cause non-observance of international standards" (such as the American Convention on Human Rights). The NGOs indicated that if they take effect, the reforms would entail the violation of the rights of freedom of association, freedom of action, legal security, due legislative process, freedom of thought emission and citizen participation. A final decision from the Constitutional Court is expected in the first half of 2021.

 

  • Derived from the events that occurred in January 2021 in Washington, DC, and the subsequent suspensions or cancellations of accounts of the President Trump in various social networks, we have observed a growing opinion in Guatemala on the need to regulate some activities or services carried out by intermediaries. Relevant opinion makers reject the possibility of suspending or canceling accounts on different platforms, considering that they entail a form of prior censorship and demand that such possibility should be prohibited 

Peru:

  • November 2020 -a minority bench presented the first bill which proposes to condemn those who spread fake news during the electoral process (there are general elections in April 2021) through the mass media, with a custodial sentence of no less than two years. If the offender is a candidate, he must be excluded from the ongoing process.

 

  • Both the Ministry of Justice and the Ministry of the Interior have previously stated that the dissemination of false news could qualify as a crime already classified in the Peruvian Penal Code (a crime of serious disturbance to public tranquility) and that they would denounce its propagators. However, to date they have not filed any complaint.

 

  • January 2021 - The Executive Branch announced the start of a campaign to avoid misinformation about vaccines against Covid-19. The president of the Council of Ministers, Violeta Bermúdez, indicated that in Peru there is "suspicion" about the next importation of the vaccines against Covid-19, recently acquired by the State. The president attributes this mistrust to the bad information that citizens receive, so the Government has decided to develop an information campaign to disseminate information on the processes carried out that guarantee the safety and effectiveness of the vaccine.

 

 

Argentina

  • In November and December 2020, two bills were presented to the Senate and the Chamber of Deputies of Argentina that seek to modify the law on the protection of personal data (Law 25.326). Both the project presented in Deputies and in the el Senate follow in general terms the line of the project presented in 2018 by the Executive Power (very close to the standards of the General Data Protection Regulation of the European Union). These new projects, although not identical, introduce the following modifications: they propose new categories of data, incorporate the concept of accountability or proactive responsibility, limit personal data to human persons, extend the definition of adequacy to supranational organizations, and increase fines, among others. Due to the parliamentary recess, the treatment of both projects was deferred to the restart of ordinary parliamentary activity on 01/03/21. Neither of the two projects will be discussed during the extraordinary session that began on 27/01/2021 because it was not included in the list of topics by the Executive Power.

 

  • In December 2020 the Supreme Court of Justice of the Nation decided on the case Pando c / Barcelona Magazine and revoked the sentence imposed on the magazine in previous instances. In its judgment, the Court highlighted the paramount place that the right to freedom of expression occupies due to its special bond with democracy. Although it highlighted that the right to freedom of expression is not an absolute right and that it has its limitations, in the present case it pointed out that the expressions of the magazine constituted what historically has been called a satire of political criticism. It also mentioned that this satire refers to the public facet of the plaintiff (Pando), by expressions made in a public space and which, likewise, was linked to a matter of public interest (crimes against humanity). The Court also dismissed the arguments of the plaintiff denouncing gender violence. It is interesting to note that several of the arguments used by the Supreme Court were presented by CELE in this amicus curiae in 2017.

Paraguay:

  • In December 2020, the Executive Branch presented the National Plan for Integrity, Transparency and Anti-Corruption. This Plan involves the three branches of the State and seeks to impact aspects such as transparency, access to information and citizen participation; development of the system of culture of integrity, public function, suitability and merit. It also focuses on the control framework of public purchases and internal systems and risks; investigation capacity and State sanction against acts of corruption and management in communications and actions of the plan.

 

Mexico:

  • On 01/07/2020, the reforms to the Federal Copyright Law, as well as the Federal Criminal Code, were published in order to harmonize Mexican legislation with the provisions of the T-MEC. Current provisions allow private entities to request intermediaries to remove from their platforms those documents that are protected by copyright in their favor. What is problematic is that there is no obligation to assess whether removal interferes with other human rights, including those of freedom of expression, rights to information, education or culture. It also imposes disproportionate penalties for those who make a counter-notice. The National Human Rights Commission filed an unconstitutionality action that is pending.

 

  • The President of Mexico and the President of the Board of Political Coordination of the Senate (Ricardo Monreal) have expressed their rejection regarding the actions taken by social networks such as Twitter and Facebook regarding the suspension of the account of the former President of the United States of America , considering it an act of censorship. In view of the above, they have publicly mentioned the need to regulate social networks so that they do not censor people, and even proposed public investment to create a free social network.  

Article by: Matias Gonzalez @thaumatropo