News of the legislative and regulatory activity, judicial and administrative decisions.
- At the parliamentary level, various bills related to the right to freedom of expression were presented in March. One of them is linked to the protection of sources of journalistic information, other it is related to the dissemination and / or distribution of recordings or images with sexual content and identity theft and, finally, two projects were presented that penalize certain expressions. The First of all seeks to modify the penal code to incorporate a new type of criminal offense, sanctioning all conduct of denial, apology and / or claim regarding genocide and crimes against humanity. The second publicly penalizes those who make statements or demonstrations, made in the media, on social networks, and any type of public demonstration, tending to vindicate, legitimize and / or minimize the crimes committed by State terrorism during the last Argentine dictatorship.
- At the judicial level, we can highlight two decisions with important implications for freedom of expression online. In the cause Amado Vecchi c / Google, Room III of the Federal Civil and Commercial Chamber analyzed the request to block certain URLs in which the plaintiff was mentioned (as convicted of fraud). Unlike what was resolved in the first instance (where the right to be forgotten was recognized), the Chamber, citing the cases "Rodriguez, María Belén" and "Paquez", understood that blocking the information published about the plaintiff constitutes a serious restriction on information of public interest that seriously affects freedom of expression. Along the same lines, he stated that "the right to be forgotten is not an unlimited right" and that matters of public interest constitute its limit (as is the case in the present case). On the other hand, in the framework of the case "CFK v / Google" the Supreme Court of Justice of the Nation rejected the appeal of Google against the anticipated test measures requested by the Vice President of the Nation Cristina Fernández de Kirchner. You can find more information about the implications of what was discussed in the case in is Agustina del Campo's post on the CELE Legislative Observatory Blog.
- Between February and March, various arrests and processes were carried out based on the National Security Law (Law 7170/1983), a law edited for the last time during the Brazilian military regime and that defines crimes against "the territorial integrity and national sovereignty, the representative and democratic regime, the federation and the rule of law and the heads of the Powers of the Union" . The first detainee was Daniel Silveira, a far-right deputy who posted on his YouTube account a video that, according to the Supreme Federal Court, “attacked the Ministers of the Federal Supreme Court, through various threats and crimes against honor, in addition to propagating expressly the adoption of anti-democratic measures against the court. The second was the student João Reginaldo Silva Junior for posting on Twitter a message that, according to the Federal Police, "encourages violence and the attempt on the life of President Jair Messias Bolsonaro." Daniel remains detained (at home) and awaits his trial, while João was released the same day and is under investigation.
- In response to the arrests, the Brazilian Labor Party (PTB) and the Brazilian Socialist Party (PSB) summoned the Federal Supreme Court to challenge the constitutionality of the provisions of the National Security Law (Law 7170/1983). In the Declaration of Breach of a Fundamental Precept (ADPF, in Portuguese) 797 the PTB maintains that there is an incompatibility of the norm with the Democratic Rule of Law. In ADPF 799, the PSB adopts the same argument, but affirms that there are provisions in the law that are compatible with the Constitution and that they must be maintained, so as not to compromise the defense of democratic order by the Judiciary.
- Since 2019, a bill known as the "Anti-Crime Package". The intention of the project is to make the fight against crime more effective and, for this, it proposes changes in several articles of the Brazilian Penal Code. However, after approval in the two parliamentary chambers, the president of the republic vetoed some of these modifications, including the one that sought to triple the penalties for crimes against honor committed on "social networks." The Chamber of Deputies rejected the president's veto to this section, on 17.03.2021. The Senate has yet to vote on the vetoes.
- On 8.03.2021, the 20th Civil Court of Brasilia / DF denied a request for urgent reparation requested by federal deputy Eduardo Bolsonaro against also deputy Kim Kataguiri. In the request, the plaintiff requested that the accused be prevented from making publications that violate his honor, in addition to demanding the removal of any content offensive to his honor previously published on websites and social networks. In her decision, the judge pointed out regarding the removal of offensive publications that the publications deal with issues of public interest and their removal from the internet, in a preliminary injunction and without further clarification of the facts, may affect the interest of the community, especially considering that the charges relate to the exercise of the function by the claimant and allegations of misappropriation of public funds.
- A series of irregularities related to the violation of fundamental rights have been identified in the "Report 2020. Freedom of Expression in Chile", prepared by the Observatory of the Right to Communication, the Institute of Communication and Image and the Protected Data Foundation and which focuses on the context of the social outbreak that occurred in Chile since October 18, 2019 (18-O) and then the COVID19 pandemic in categories such as: Attacks on the press by State agencies, problems of access to public information, restrictions on journalistic freedom and freedom of expression in the artistic field, criminalization of public discourse, lack of pluralism and pressure from public authorities on the media, algorithmic censorship, attacks on digital media and selective harassment and hate speech on the internet (social media platforms). These situations have been presented in a cycle of four talks that are taking place from December 2020 to March 2021. The 4 chapters of the Report are available here!.
- Although in November 2020, a Bill to carry out a constitutional reform so that the Chilean State guarantees the right of Internet access to the entire educational community and that it has public financing, particularly students and teachers, at the beginning of the school year in March 2021, once again the press and social networks have made visible the case of girls and boys who throughout the country must carry out real odysseys to connect to their online classes, especially in sectors rural areas and in neighborhoods or areas where broadband and mobile connectivity services do not reach. Criticisms especially from civil society organizations point to the consequences of this digital divide in the exercise of the rights of girls, boys and adolescents to their rights of access to education, knowledge, communication and freedom of expression, culture, among others. The bill has no urgency to date.
- In November 2020, the processing of the bill that seeks to outlaw, classify and sanction digital violence in its different forms, also seeking to provide protection to victims in Chile. Under the motto "No more digital violence", the initiative seeks to install the demand for digital security, prohibit certain particularly serious behaviors and diversify how they are penalized. The project, which is currently being dealt with in the legislative power, identifies types of violence that are especially harmful, especially for women and the LGTBQ + community, such as digital harassment, doxing or dissemination of personal data, identity theft, dissemination non-consent of packs and cyber flashing or display of unsolicited content. The project, which is in its first phase of processing, has an unprecedented alliance between parliamentarians from different political coalitions and feminist and LGTBQ + social organizations.
- In March, a controversy arose on social networks over the decision of the Ministry of Information Technologies and Communications to grant 85 billion pesos in subsidies to the media. Although the original announcement had been made in February, details were released in March of government plan. In addition to the usual questions about the possibility that the funds are used as a way to reward the most lenient media towards the government, there are concerns due to the unequal treatment given to the different types of communication media (radio, television, written and digital press). Furthermore, it has been pointed out that the subsidies would not help to solve the structural crisis of the media in Colombia.
- The Ministry of Information Technology and Communications began the execution of what it has called "the largest rural connectivity project in the history of the country." Government announced what do you plan to bring the internet de broadband to more than 14 schools in the most remote areas of the country between 2021 and 2022. On March 17, the operation of five of the more than eight thousand "Digital Centers" that will be activated this year began.
- The country is experiencing a sensitive political moment. The erratic management of the health crisis has led to a minimum number of citizens being vaccinated and has revealed serious cases of corruption in the health system. Following the collapse of the city of Guayaquil in April 2020, journalistic investigations were carried out related to the diversion of funds in hospitals, overpriced purchases of medical supplies and fraudulent handling of public resources. These revelations were the result of journalistic investigations led, among others, by reporter Dayana Monroy, from the Teleamazonas channel. The Monroy inquiries They unveiled a corruption network that included dead people and in which former President Abdalá Bucaram, today under investigation, and some of his relatives were involved. On January 27, 2021, in the context of a video in which the former president complained about Monroy's journalistic coverage of criminal acts allegedly committed by Bucaram and his family, and declared: to her?". In this context, various journalist networks raised their voices due to threats from the former president. The journalist went to court. At the same time, the country is going through an electoral period that envisions a potential return of the figure of former President Rafael Correa, highly questioned for his attacks on freedom of expression. In this context, one of the campaign arguments of the former president and his followers is a kind of revenge against critical sectors, including the press, should they return to power.
- The Guatemalan Human Rights Ombudsman announced on March 22 the start of an investigation against the Municipal Mayor of San Juan Sacatepéquez Juan Carlos Pellecer (one of the most populated municipalities in the Department of Guatemala, where the country's capital is also located) because he would be committing flagrant violations of the freedom of expression of the inhabitants of said municipality. These violations of freedom of expression would be linked to expressions on social networks against the Mayor for the mismanagement of a water well that supplies three thousand households that the municipality is building. In this context, the official, openly manifested that they have “hacked” several WhatsApp accounts and “we know what they say, we have the audios of what they have said”. Given the open confession of these irregularities, the Human Rights Ombudsman commented: “The right of people to express their dissatisfaction with the management of the mayor of San Juan Sacatepéquez should not be limited through the interception of communications. It is necessary for the Public Ministry to investigate. "
- So far in 2021, cases are increasing in which forensic investigators and prosecutors from the Public Ministry, upon noticing the presence of reporters taking photographs in the vicinity of various kinds of crime scenes, threaten them to initiate legal action. for putting their "safety at risk" and even ordering them to erase all the photographic material thus obtained. While the journalists' groups claim that these actions are limitations by officials to access sources of information, officials of the prosecuting body in criminal matters in Guatemala claim interference in their functions and possible contamination of crime scenes. There is no doubt that this demonstrates the need for collaboration between these actors, to understand how to make forensic investigation work compatible with journalistic investigation.
- On March 9, 2021, the actor from Monterrey (Mexico-Nuevo León), Marco Polo reported that it received in previous weeks a complaint for political gender violence in the Special Prosecutor's Office for Electoral Crimes of the Attorney General's Office by the candidate for the Governor of Nuevo León for the MORENA party (Movement for National Regeneration), Clara Luz Flores Carrales, for the parody that is made of her through the character “Carla Lucía”. The actor made mention on his twitter account of all the sketches in which the character appears, and offered an apology if what he sought to communicate was "trasgiversado" (sic). In your messages on youtube , Press media and in national radio The actor reported that, although he apologized for not continuing to be involved in the criminal process, he considers that it is an act of censorship that violates his freedom of expression.
- The organizations Harassment in the U and R3D made known to the public opinion their concern that the INAI (National Institute of Transparency, Access to Information and Protection of Personal Data had in process a procedure for the protection of personal data initiated by the former - Professor at the Instituto Tecnológico de Estudios Superiores de Monterrey, Monterrey campus, Felipe Montes, who was designated as sexual stalker and, consequently, separated from the academic institution. As a result of his dismissal, Montes requested under the legal tool for the protection of personal data that they send him information about those who reported him and that, in addition, they erase all the records about him in the organization. Therefore, the INAI initiated a sanctioning process against the organization Harassment in the U. At the moment, although there is no news regarding whether a sanction was imposed on the organization, civil society organizations have expressed Against the resolution of the INAI for misrepresenting the law on the protection of personal data and promoting the silencing of the complainants of sexual violence by violating their anonymity.
- As of March 2021, banking institutions in Mexico began to require their clients who want to access their services through online banking to be geolocated. These requests are part of the legal requirement created against money laundering, and implemented by the Financial Intelligence Unit of the Ministry of Finance and Public Credit. The measure has been questioned by the R3D organization for considering it disproportionate and risky for millions of people who will make sensitive information available to banks, as well as to the authorities without the need for a judicial decision authorizing these acts. At the same time, R3D considers which is not the most appropriate measure because it can be compromised by GPS modifiers.
- The Mexican Congress seeks to create a mandatory register or registry of telephone lines associated with biometric identity. Civil society organizations like R3D have expressed that this project constitutes a serious risk for the privacy and security of the users. Between the critical that are carried out to this project is the potential vulnerability of the database that will be created as well as its potential commercialization and sale to third parties
- The Ministry of Justice and Human Rights ruled out taking legal action against an open signal television channel that had broadcast biased information and incomplete on the efficacy of the vaccines purchased by the Peruvian government from the Sinopharm laboratory. The public entity, however, did not assess whether the dissemination of information qualified within the criminal offense of serious disturbance of public tranquility, Rather, it considered that the inaccurate information had already been clarified by public demonstrations by the government, other media, professional associations, and civil society actors.
- The Congress of the Republic approved in first vote the reform of the Political Constitution of Peru to incorporate Internet access as a fundamental right. This right would be incorporated into the statement of article 14 that deals with the right to education. In addition, free internet access is provided in the entities, institutions and public spaces, and the obligation to promote scientific and technological development through digital literacy is established. In the final version of the reform, the provision that Internet access was not considered free and open.
We also include in the This Bulletin is a graphic that shows the relevant issues in terms of freedom of expression of the bills presented during 2021 in the countries that are part of the Observatory.
We thank our consultants for their work and contributions to this regional newsletter: Matías González (Argentina), Ártur Pericles (Brazil), Patricia Peña (Chile), Luisa Isaza (Colombia), Victor Cabezas (Ecuador), Álvaro Castellanos (Guatemala), Juan Carlos Arjona Estévez (Mexico) and Andrés Calderón (Peru)
Photo Credit: @Leonoverweel