New post! "Looking South: Towards new regional consensus on the responsibility of intermediaries and moderation of Internet content."

The report has been prepared by Derechos Digitales and CELE for Al Sur. It is available in Spanish, Portuguese and English and can be downloaded here.

Last week, the Al Sur consortium published its report "Looking South: Towards new regional consensus on the responsibility of intermediaries and moderation of Internet content". The document raises the importance of the discussion for the region, highlighting the current context and comparing it with the most recent cases in Europe and the United States. It contains a detailed description of the most relevant and critical characteristics of the regulatory initiatives under treatment, at the same time that it addresses self-regulatory initiatives on the part of companies and proposals promoted by civil society.

Two years have passed since the meeting of experts organized by CELE, which took place in Buenos Aires. There, in March 2019, a process of continuous conversations with organizations and digital rights leaders in our region began, in which the development of the issue is analyzed and the different opportunities for advocacy are evaluated. This document is part of that process.

Currently, strategic discussions on the liability of intermediaries are present in several countries of the region, both at the legislative and judicial levels. In Brazil, for example, the Supreme Federal Court has in its hands the constitutionality of certain provisions of the Internet Civil Framework. In Mexico, not only has the Free Trade Agreement with the United States been recently implemented, which imports the Copyright Law in the Digital Age (DMCA) and the Communications Decency Law (CDA), but has also been presented the controversy bill of law by Senator Monreal, earlier this year. In Argentina, although legislative projects have not been discussed, the discussion on the type of responsibility that the platforms have for the problematic content that circulates on them was present in the Committee on Media and Freedom of Expression of the National Senate , where multiple open meetings were held with civil society actors and experts on the subject.

In addition to this, in February 2021 the Inter-American Commission on Human Rights (IACHR) expressed, through a release, his concern about the guarantee of freedom of expression on the Internet in the region. There he indicated that "The hemisphere is at a turning point characterized by the general deterioration of the public debate where democratic states face the potential transfer of violence online to physical spaces with a certain capacity for harm." Consequently, it began an inter-American dialogue process on these issues, led by its Office of the Special Rapporteur for Freedom of Expression (RELE). The first activity in this framework took place in 179˚ IACHR session on March 25, with the thematic public hearing on "Moderation of Internet content and freedom of expression in the Americas," in which CELE was present.

Parallel to the Latin American discussion, the United States and Europe are undergoing potential modifications to the liability regimes of intermediaries that have given rise to the internet that we know today. The platforms, for their part, developed self-regulation initiatives - such as Facebook's Oversight Board, for example - in order to strengthen their legitimacy; Interesting initiatives and proposals for regulation, self-regulation and co-regulation have emerged from civil society.

Following the analysis of the comparative legislation and the multiple initiatives, the document concludes with a series of guidelines that the Al Sur consortium understands should guide any regulatory approach on the liability of intermediaries. Among the most prominent are: 

  • Any regulation in our regional framework must comply with inter-American standards regarding freedom of expression, privacy, access to information, rights of association and assembly, political rights, and the right to the truth, among others;
  • It is urgent to discuss a general framework of liability of intermediaries for the content of third parties, and clearly establish the exemption from liability of intermediaries except for reliable judicial notification as a general principle;
  • Respecting the distinctions that exist between our region and Europe, establishing a legal obligation for a third party to eliminate or block harmful, but not illegal, information or ideas, without judicial intervention, constitutes prior censorship and, therefore, not only should not be encouraged , but has to be fought;
  • Human rights and non-ethical criteria should be promoted around the development of algorithms and “artificial intelligence” (AI) and their regulation. Understanding the term AI in a broad sense, according to the definition used by David Kaye, former Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (UN) in his report on AI and human rights, in 2019;
  • Understand the regulation of the responsibility of intermediaries and content moderation as a regulatory field that interacts with others and, therefore, systematically evaluate the opportunities that some of the issues presented as current shortcomings of the regulatory regime of intermediaries are resolved through of other specific regulations such as regulation of economic concentration and commercial competition; consumer rights; protection of personal data or electoral regulation.