Monthly Newsletter February 2021

Argentina

  • On February 18, the president of CELS, Horacio Verbitsky, announced in a radio interview that he would have agreed to the COVID-19 vaccine due to his closeness to the then Minister of Health, Ginés García. This caused various sectors of society to express their discontent and would protest due to the existence of a VIP vaccination potential for people close to power in addition to demanding the publication by the Ministry of Health of the listing of vaccinated. Finally, the ministry published the list and also I quit its holder. However, there were questions regarding the request for publication of vaccination data (in particular regarding those who were not public officials) since, being protected by the Patient Rights Law 26.529 and by the Protection Law of personal data 25.326, disclosing clinical data without a judicial order or without the authorization of the patient would be illegal. 
  • On February 18, the Executive Branch through Resolution 100/2021 postulated Juan Fuertes for the position of Director of the Agency for Access to Public Information. It also enabled the reception of comments on the candidacy until March 13, 2021 and called civil society to a virtual public hearing on March 23, 2021. The application was not well received by various organizations of the civil society considering that the candidate is not suitable for the position in question for not having proven experience in the subject.
  • During the legislative opening speech, President Alberto Fernández announced the initiative to create a DNI with chip. Different organizations of the civil society They spoke out against this project, mentioning that it would not be necessary to generate a new type of DNI and warning about possible breaches of security that adopting this type of documentation entails. 

 

Brazil

  • Three bills on content moderation were presented to the Brazilian Chamber of Deputies. The first of them foresees a court order as a requirement to moderate content on the Internet; the second adds new provisions on the subject to the Brazilian Framework for Civil Rights on the Internet (MCI), such as the nullity of contractual clauses and adhesion terms that foresee «suspension or unavailability of the user's content due to political orientation or expression of opinion«; the third party pretends hold judicially responsible to the platforms of the content moderation activity that "Censorship or label opinion content". The bills are still pending a vote.
  • The Court of Justice of São Paulo has determined that Google, owner of YouTube, reactivates two video accounts linked to the extreme right and the defense of the positions of President Jair Bolsonaro (Terça Livre TV and Terça Livre Live). Both accounts were deactivated by the platform in early February, for breach of the guidelines of the YouTube community. The judge considered the platform's measure disproportionate, violating the constitutional guarantee of freedom of expression and information.

 

Colombia

  • On February 9, the Minister of Information and Communication Technologies, Karen Abudinen, reported that the government will invest 85 billion pesos to finance the economic reactivation and the digital transformation of the media
  • On February 4, the Supreme Court of Justice revoked a conviction against Vicky Dávila, one of the best-known journalists in the country, who had been handed down by the Bogotá Court. In the October 2020 sentence, the journalist had been sentenced to rectify and pay a high economic compensation to a police colonel, after publishing an audio recording alleged acts of corruption that linked him. The Court clarified that journalistic opinions are protected even when expressed in an incisive or scathing manner and that journalists do not need to wait for a conviction to exist to support a journalistic complaint. According to the Court, the Bogotá Tribunal did not consider the constitutional and inter-American standards of freedom that protect freedom of expression, omitting to make a real consideration to resolve the tension of rights.

 

Ecuador

  • In Ecuador, a paradigmatic case on freedom of expression. Let's look at the background. At the end of last year a traffic accident shocked the public. A drunken woman driving a vehicle ran over a person and the images were captured on security cameras. The woman was apprehended and placed under the orders of a judge who issued an alternative measure to preventive detention. The case had an impact, and a media outlet that covered the events criticized the judge and questioned her actions by ordering a measure that, in the opinion of the journalists, was insufficient for the seriousness of the case and would allow the defendant to escape. The judge filed a constitutional protection action [the Ecuadorian amparo action] stating that the media had violated her right to honor and good name. The TV channel defended itself based on national and international standards of freedom of expression, arguing: a) that the case is in the public interest and that the speech is especially protected when dealing with the performance of a public official; b) that the opinions expressed are not subject to a judgment of truthfulness. In a lower court ruling, a judge accepted the claim, declared the violation of rights and ordered various measures of reparation including: a) training courses for journalists; b) material reparation; c) public apologies to the judge. The case is currently in the appeal phase. 

 

Guatemala

  • Advances with firm step in the Congress of the Republic, the Initiative 5792. It has already received a favorable opinion from the Transparency and Probity Commission and, therefore, could go to legislative debate shortly. This initiative aims to significantly reform the Law on Access to Public Information (Decree 57-2008). In essence, the rapporteur deputy, José Alejandro De León Maldonado, from the Podemos party (conservative party), proposes a complete replacement of the Human Rights Ombudsman's Office as the governing body in charge of ensuring compliance with said Law. the creation of a “National Office for Access to Information (ONAIP). The main problem with this reform proposal is that the ONAIP would be in charge of a director who would be appointed exclusively by the Congress of the Republic by a simple majority of a list that would be proposed by the Probity and Transparency Commission of the Congress itself. would be creating an essentially political body as the governing body, which would be far from complying with international standards or recommendations on the matter, such as the Model Inter-American Law 2.0 on Access to Public Information, which requires collegiate and independent bodies from the traditional powers of the State. This initiative is evaluated by civil society as an attempt to dilute and weaken the still incipient culture of transparency in Guatemala.

 

Mexico

  • El President of the Senate Political Coordination Board, Ricardo Monreal prepared a initiative - not yet formally presented in the Senate - to regulate digital platforms. In this regard, he announced open digital forum and after concluding the consultation process, present the initiative in the Senate. The proposal has been questioned by various civil society organizations including R3D and Article 19 for being vague, broad and imposing disproportionate administrative burdens on digital platforms, as well as lacking control mechanisms for public entities that seek to distort the purpose of the regulation, which is to promote freedom of expression and the right to information ( ). 
  • On February 18, the 2nd Collegiate Circuit Court in Administrative Matters, Specialized in Economic Competition, Broadcasting and Telecommunications resolved the Amparo in Review 308/2019 in which it orders the Federal Telecommunications Institute to issue Guidelines to protect net neutrality to no later than June 30, 2021.

 

Peru

  • On February 19, 2021, the Peruvian Government published the Regulation of the Digital Government Law which establishes the main obligations of public entities in terms of digital identity, interoperability, provision of digital services, electronic records, digital architecture and security, and data governance. 
  • On February 26, 2021, the Popular Action party presented a bill of law that raises a large number of prohibitions for users of social networks on the Internet such as: publishing any information about another person without their consent, downloading content protected by copyright for free, posting “insulting or threatening” comments, “using violent language that incites to hate or discriminate ”, spread false news“ to attack a political or commercial opponent ”, or open an account while under 14 years of age. In addition, it imposes on the providers of these services an obligation to monitor and report any criminal act, and the duty to sign codes of conduct with a state regulatory body so that they assume responsibility for implementing content suspension mechanisms.

 

We thank our consultants for their work and contributions to this regional newsletter: Juan Carlos Arjona Estévez (Mexico), Victor Cabezas (Ecuador), Andrés Calderón (Peru), Álvaro Castellanos (Guatemala), Luisa Isaza (Colombia), Matías González (Argentina) Ártur Pericles (Brazil).