The “proper use” of social media?

In October of last year, a bill was introduced in the Colombian Congresshttps://observatoriolegislativocele.com/colombia-proyecto-de-ley-sobre-regulacion-del-buen-uso-y-funcionamiento-de-redes-sociales-y-sitio

In October of last year, a bill was introduced in the Colombian Congress that sought to establish rules for the proper use and operation of social media platforms and websites. The initiative highlighted the need for regulation of content—both on platforms and on websites—that could damage citizens’ honor and reputation. The bill had at least two problematic points: i) On the one hand, under the vague term “abusive posts,” it placed the obligation on platforms to immediately block or remove a post based solely on a complaint filed by a user. The rapporteurs on freedom of expression have pointed out that digital platforms and internet service providers cannot be held responsible for content generated by their users, as this would lead to proactive monitoring and prior censorship. ii) Furthermore, failure to comply with this rule results in the imposition of sanctions by an administrative body such as the Ministry of Information and Communications Technologies. In accordance with international standards, any restriction on freedom of expression must be based on a decision by a judicial body, not by any administrative agency, as the bill originally proposed. Following its first debate in April of this year, the bill was withdrawn due to a lack of political and social support to move the discussion forward. However, the idea of “proper use” of social media—and the internet in general—seems to be gaining traction in other legislatures across the region. In February of this year, the Ecuadorian legislature introduced a bill titled “Organic Law on the Responsible Use of Social Media.” The Ecuadorian bill replicates an identical legislative approach to the Colombian bill, with the same problems—for example, the ambiguous use of the terms “abusive posts” and “victims of abusive posts”; the enforcement powers vested in the Ministry of Information Technology and Communications; and the obligations imposed on platforms to block and suspend content. In addition, amendments to the Comprehensive Organic Criminal Code are proposed, including the criminalization of hate speech or expressions related to crimes against personal or family integrity on social media—a trend that persists across all countries comprising the CELE Legislative Observatory. This bill is still under discussion in Ecuador’s National Congress. But in addition to the “proper use” and “responsible use” of social media, there is also talk of “appropriate use.” This is how the Bill introduced in Peru last April, which specifically regulates the “proper use of social media.” The initiative proposes to criminalize defamation resulting from the irresponsible use of social media to attribute a fact, characteristic, or behavior that could harm a person’s right to honor and good reputation. Furthermore, contrary to the provisions of standards and international organizations, it distinguishes online expression from other forms of media by increasing the prison sentence from four (4) to seven (7) years. Currently, this bill is under consideration in the Peruvian legislature. Taking a holistic view of these bills, at least three issues stand out: i) The “proper use” of social media: Words convey meaning, as do the terms chosen to name each of the aforementioned bills. A “proper use” or “correct use” of social media implies that these digital spaces are not currently being used as they should be. Now, is there a “right way”? What is the correct way to express oneself on social media? The post-internet world brought with it a democratization of public discourse, thereby multiplying the spaces for participation and enabling people to engage in a less hierarchical manner. However, at the global and regional levels, the digital public sphere is at the center of the debate, just as attempts to “clean up” social media through various forms of legislation are proliferating. The term “proper use” and its synonyms are part of this symptom—this unease—that projects the moralistic ideal of a healthy, respectful, rational conversation free from lies. The contemporary myth of paradise lost. ii) The permeability of congresses: As already noted in a previous post, when we discuss regional legislation on freedom of expression on the internet, it becomes clear that in many cases, bills cross borders—that is, national legislatures—between countries. Just as with the bills analyzed, this demonstrates the replication of certain legal frameworks or specific regulations using similar legislative techniques in more than one country. The clearest example can be seen by examining the bills from Colombia and Ecuador. A reflection on this analysis suggests that, generally speaking, national legislatures regarding internet regulation should not be viewed as autonomous institutions isolated from the legislation proposed by other Latin American legislatures. Consequently, it is evident that a particular line of reasoning or approach emerging from a parliamentary debate regarding the circulation of online discourse finds its way into a law or bill in another country in the region. iii) Vague, Disproportionate, and Excessive Limitations: The discussion raised by these bills concerns the limits of freedom of expression. These limits must be interpreted narrowly and reviewed in light of the three-part test of the Inter-American Human Rights System, which consists of evaluating the legality, proportionality, and necessity of the regulation. While the objectives pursued by the three initiatives are legitimate and necessary in any democratic society, their main problems lie in the combination of ambiguities, disproportionate measures, and excessive burdens on digital platforms. Flawed legislative drafting can result in extremely serious risks to freedom of expression, leading to prior censorship by private entities or excessive discretion on the part of public authorities. Franco Serra francoserra.cele@gmail.com