Applause, pot-banging protests, and message chains: the rights to assembly and association in Argentina during the pandemic

What do the 2015 protests organized by the feminist group Ni Una Menos have in common with the applause and pot-banging demonstrations during the pandemic? In both cases, the protests were organized through social media

What do the 2015 protests organized by the feminist collective Ni Una Menos have in common with the applause and pot-banging demonstrations during the pandemic? In both cases, the demonstrations were organized through social media and messaging services like WhatsApp, sparked extensive online discussions, and had some kind of social and political impact. The rights to assembly and association face significant challenges in the online sphere today. From violations of the right to privacy by public agencies to the persistent digital divide that exists throughout the country, these are issues that predate COVID-19 but that the emergency context has brought to light as never before. Given the impact that lockdown and/or social distancing measures have on the exercise of these rights, the government plays a fundamental role in ensuring that all citizens can freely express their grievances, both online and offline. Regarding internet access, according to a recent report by the International Telecommunication Union (ITU), 24.2% of the population in Argentina lacks internet access. According to the National Institute of Statistics and Censuses (INDEC), the percentage of people without internet access is 20.1%. Although the country has seen an increase in internet access levels in recent years, a digital divide persists, along with challenges regarding service quality and speed. This lack of connectivity primarily affects certain groups, such as women, indigenous peoples, low-income sectors, and residents of marginalized or rural areas. In the face of the pandemic, in order to ensure the continuity of internet and telecommunications services, the national government prohibited mobile and landline telephone, internet, and cable TV providers from suspending or cutting off services in cases of late payment or nonpayment for up to a certain number of months. Other measures taken by the Executive Branch were aimed at ensuring the continuity of education for children and adolescents following the closure of schools, such as the launch of the [“Seguimos Educando”] platform(https://www.educ.ar/noticias/etiqueta/seguimos-educando), which sought to facilitate access to educational content and cultural resources until the emergency is over. To this end, the government reached an agreement with internet service providers to offer free access to this platform from all mobile phones, whether prepaid or postpaid (a practice known as “zero rating”). Likewise, on August 21, the President declared information and communications technology services and access to telecommunications networks to be essential public services. The emergency decree states that the right to internet access is currently “one of the digital rights held by every person for the purpose of exercising and enjoying the right to freedom of expression” and that ICTs constitute “a benchmark and a fundamental pillar for building economic and social development.” Notwithstanding these measures, it is crucial to promote public policies with a federal perspective that guarantee universal access to ICTs with basic quality standards and that are particularly focused on vulnerable groups such as indigenous peoples and rural communities. As long as isolation and/or social distancing measures continue, internet access will be indispensable not only for freedom of expression, assembly, and association, but also for access to information, health care, education, and work. On the other hand, the shift of these rights almost exclusively to the online sphere has also brought about a series of new risks and threats, including surveillance and criminalization. The 2019 report by the United Nations Special Rapporteur on the right to freedom of peaceful assembly and of association notes that over the past decade, states have used a variety of measures and tactics to control and impede access to digital technologies and their use for the purposes of assembly and association, and have adopted surveillance measures in the context of protests, justified on grounds of public order or national security. The growing body of legislation aimed at combating cybercrimes or regulating the flow of discourse on the internet has led to harassment, silencing, and the imposition of sanctions against activists, dissidents, human rights defenders, and protesters in various countries around the world. This type of legislation poses a threat to the rights analyzed here, and within the Argentine context, at least two trends in this direction are worth noting: “cyberpolicing” and the criminalization of disinformation.

• Open-Source Digital Intelligence (“Cyberpatrolling”) On May 31, 2020, amid the pandemic, the Ministry of Security issued regulations for the “General Protocol for Police Crime Prevention Using Open Digital Sources” in Resolution 144/2020. Although the protocol is intended to regulate a practice that already existed, the regulation raises several issues—ranging from the legality of the actions it defines and regulates to their proportionality and necessity—which pose direct and indirect threats to the right to freedom of expression and privacy. First, the regulatory framework of the National Intelligence Act does not provide for open-source intelligence practices. Consequently, its regulation through an administrative body does not comply with the principle of legality, which requires that any limitation on fundamental rights must be established by formal law, following democratic deliberation. Furthermore, the Protocol contains ambiguous definitions regarding forms of criminal intelligence. Even the Agency for Access to Public Information (AAIP) analyzed the Protocol and recommended that the Ministry of Security suspend the Protocol’s implementation until its compliance with current personal data protection regulations is reviewed again. Cyberpatrol activities have been very active during the quarantine. Criminal cases have been initiated for posts on social media under charges of spreading disease, incitement to violence, and violation of the mandatory quarantine. In this regard, the Minister of Security herself mentioned that her agency was conducting prevention and intelligence operations on open digital sources with the intention of gauging the “social mood”. The indiscriminate use of surveillance technologies without legitimate objectives violates human rights standards. It is important to establish clear limitations on intelligence-gathering techniques involving open digital sources and to ensure minimum transparency requirements in the acquisition and use of facial recognition technologies. In addition to invading privacy, these techniques produce a chilling effect on free speech, affecting people’s right to freedom of expression, and pose a threat to those who seek to exercise their right to association and assembly online.

2. ** Misinformation** In recent months, various provincial and municipal authorities have used the excuse of growing misinformation surrounding the pandemic to impose measures restricting free speech, in an attempt to establish some control amid the chaos. This was primarily evident in the criminalization of the dissemination of “fake news” about COVID-19, supplemented in turn by the aforementioned surveillance measures or “cyberpatrolling” on social media. In Tucumán, the provincial legislature passed a law imposing arrest and fines on those who generate and spread fake news. This is an amendment to the Law on Police Misdemeanors, meaning that a misdemeanor judge will impose the penalties. In Chaco, a journalist who posted on his Facebook account that there were more cases in the province than those officially reported was apprehended at his home the following day by members of the National Gendarmerie. In the province of Salta, a mayor fined a journalist 40,000 pesos for allegedly publishing two false reports and falsifying official information regarding coronavirus infections in the city. The mayor backed the decision with an ordinance that he himself had pushed through in March of this year. Likewise, the government of Tucumán stated that it would punish those who spread fake news with arrest or fines. Government authorities must promote an environment conducive to human rights defenders and the media being able to carry out their work, and avoid fostering a climate of intimidation against minority groups or political dissidents who wish to express themselves publicly. In March of this year, a statement by United Nations Special Rapporteurs and independent experts called on governments to “avoid excessive security measures in their response to the coronavirus outbreak,” noting that “emergency powers should not be used to suppress dissent.” Along the same lines, Resolution 1/20 on Pandemics and Human Rights of the Inter-American Commission on Human Rights emphasized that any restriction or limitation on human rights for the purpose of protecting public health must comply with the principle of legality, be necessary in a democratic society, and be strictly proportionate. While these rights are not absolute, restrictions must be the exception rather than the rule. Any regulation along these lines must be addressed comprehensively and requires dialogue among the State, the private sector, civil society, and academia, among other actors, in order to achieve greater visibility and a broad-based approach. By Paula Roko and Franco Serra Photo: Manuel Peris Tirado