In October of last year it was presented at the Colombian Congress by a bill who sought to create standards of good use and operation of social networks and websites. The initiative warned of the need for regulation of those speeches both on platforms and on web pages that affected the honor and good name of citizens. The project had, at least, two problematic points: i) On the one hand, and under the vague term “abusive publications”, it put the obligation of the blocking or immediate interruption of the publication by the filing of a mere complaint of a user. The rapporteurs For freedom of expression, they have indicated that digital platforms and internet providers cannot be responsible for the content generated by their users, as it would generate situations of proactive monitoring and prior censorship. ii) On the other hand, non-compliance with this rule entails the imposition of sanctions by an administrative body such as the Ministry of Information Technology and Communications. Following the standards international, any restriction on freedom of expression must be based on a decision of the judicial body but not of any administrative court as the initiative established. After its first debate in April this year, the bill was withdrawn given little political and social support to move the discussion forward.
However, the idea of a "good use" of social networks - and the internet in general - seems to permeate other congresses in the region. In February of this year, the Ecuadorian legislature presented an initiative under the title of "Organic Law of responsible use from social networks ”. The Ecuadorian project replicates an identical legislative technique regarding the Colombian initiative with its same problems, for example in the ambiguous use of the terms "abusive publications" and "victims of abusive publications"; the sanctioning functions at the head of the Ministry of Information Technology and Communications; and the obligations of blocking and interruption towards the platforms. In addition, modifications to the Comprehensive Organic Criminal Code are established that include the criminalization of those expressions of hatred or in relation to crimes against personal or family integrity through social networks, a trend that persists in all the countries that make up the Legislative Observatory of the CELE. This project is still under discussion in the National Congress of Ecuador.
But in addition to the "good use" and "responsible use" of social networks, there is also talk of "proper use". This is how the Bill presented in Peru last April, which precisely regulates the “proper use social networks". The initiative proposes to regulate the crime of defamation as a result of irresponsible use of social networks to attribute a fact, quality or conduct that may harm the rights of honor and good reputation. Likewise, contrary to what is established by the standards and international organizations, online expression is distinguished from other means, aggravating the prison sentence of four (4) to seven (7) years. Currently, this project presents a parliamentary status in force in the Peruvian legislature.
From a holistic view of these bills, it is possible to highlight at least three issues:
i) The "good use" of social networks: Words give meaning, as do the terms chosen to name each of the aforementioned projects. A "proper use" or a "correct use" of social networks suggests that these digital spaces are not being used today in the sense that they should. Now is there a good sense? What is the correct way to express yourself on social media? The post-internet world brought with it a democratization of the public conversation, thus multiplying the spaces of appearance and generating that people participate in a less hierarchical way. However, at the global and regional level, the digital agora is at the center of the discussion as well as attempts to sanitize social networks through different legislations proliferate. The term "good use" and its synonyms are part of this symptom - discomfort - that projects the moralistic ideal of a healthy, respectful, rational conversation free of lies. He myth contemporary of lost paradise.
ii) The permeability of congresses: As previously noted in a previous postWhen we talk about regional legislation on freedom of expression on the internet, it is possible to understand that in many cases the bills permeate the borders - that is, the congresses - of the countries. Like the projects analyzed, the reproduction of certain legal frameworks or specific regulations with a similar legislative technique in more than one country is demonstrated. The clearest example can be seen from a reading of the Colombian and Ecuadorian bills. A reflection on this analysis allows us to establish that, on a general level, congresses on internet regulation in general should not be represented as autonomous institutions isolated from that legislation proposed by other Latin American Congresses. As a consequence, it can be perceived that a certain language or approach that arises from a parliamentary debate about the circulation of online discourse, finds its way into a law or bill from another country in the region.
iii) Vague, disproportionate and excessive limitations: The discussion brought about by these bills deals with the limits of freedom of expression. These limits must be understood in a restrictive manner and reviewed in light of the tripartite test of the Inter-American Human Rights System, which consists of evaluating the legality, proportionality, and necessity of the norm. Although the objectives pursued by the three initiatives are legitimate and necessary in any democratic society, the main problems lie in the combination of ambiguities, disproportionate measures and excessive burdens on digital platforms. A wrong legislative technique can result in very serious risks to freedom of expression, generating prior censorship by private parties or excessive discretion on the part of the public powers.
Frank Serra
francoserra.cele@gmail.com
