Some regional trends

What does the current regulatory landscape tell us? Generally speaking, at the regional level, we can identify some conclusions and trends common to all the countries analyzed, which provide context for the charts that p

Broadly speaking, at the regional level, we can identify some conclusions and trends common to all the countries analyzed, which provide context for the charts available on this platform:

• _Recurring Issues _The fact that certain issues remain on the legislative agenda indicates that they are receiving some attention or are a specific cause for concern. This attention may stem from various reasons: legislators’ own concerns, the executive branch’s agenda, the political and social climate, etc. In the Observatory, these issues are referred to as “objectives” that the laws seek to achieve. What does the legislator seek to protect through the proposed regulation? Across all 8 countries, the most prevalent issues or objectives are: the protection of national security; the protection of minorities; equality and non-discrimination; reputation and honor; and access to information.
• Compatibility with the Inter-American System’s three-part test Objectives can be legitimate or illegitimate. The legitimacy of a measure restricting freedom of expression within the regional framework is established by the American Convention itself. However, in general, the problems with legislative initiatives in the region do not lie in the identification of the objective. In fact, many of them are legitimate and address relevant issues that require the attention of national legislatures. The problems lie in the means by which freedom of expression is restricted (generally through the creation of criminal offenses); and, subsequently, in the wording and (lack of) specificity of the restrictions that are proposed. Generally speaking, many of them fail to meet the requirements of legality, as they contain vague or ambiguous terms, grant excessive discretion in interpretation, etc., as well as the requirements of necessity in a democratic society and proportionality of the measures selected. Examples include the situation in Argentina and the bills on dissemination of non-consensual pornography; in Mexico, the bill establishing the crime of incitement to commit a crime against security; or in Guatemala, the bill on cybercrimes and cybercrime. The problem with these texts is that they can pose extremely serious risks to freedom of expression and lend themselves to situations of prior censorship, excessive discretion on the part of judges and prosecutors, and prosecutions based on ambiguous laws, among other issues.
• _Words Behind Bars _In the region, there remains a certain tendency to criminalize expression, and this is a serious problem. Many of the legislative responses to abuses of freedom of expression involve the criminalization of certain conduct. In particular, the criminalization of speech in digital environments has advanced significantly in recent years, a situation that presents a twofold problem: On the one hand, the creation of new criminal offenses related to online speech—such as the bills in Argentina regarding false digital identity theft. On the other hand, it is common to find initiatives that distinguish online expression from that exercised through other media, treating the medium (in many cases, social media) through which the speech circulates as an aggravating factor. In Peru, there are several examples of this type of laws and bills, even though international standards discourage such regulations.
• Freedom of Expression and the Internet From 2011 onward, in all eight countries, there has been a gradual increase in the number of laws and bills proposing to regulate the circulation of speech online. These bills cross the borders (and legislatures) of countries in the region, particularly when it comes to legislation on freedom of expression online. Initiatives such as the reforms to copyright laws in Chile, Colombia, and Mexico—which came hand in hand with free trade agreements— “fake news” measures, such as Argentina’s law on digital identity theft, which can also be found in a similar form in Guatemala or Chile, are examples of this. On the other hand, perceptions of the internet also vary and are reflected, for example, in bills such as Ecuador’s on hate speech and discrimination on social media, similar to those proposed in other countries such as Venezuela. Regarding the liability of intermediaries—that is, the various types of internet service providers and platforms—aside from the Marco Civil, there is still no specific regulation in the region. While debates on this topic can be found in countries such as Argentina and Ecuador, their future remains unclear. This is an initial commentary that kicks off a more dynamic and participatory section on our website. But above all, it is intended as an invitation to explore the various laws and bills, work with the compiled material, and challenge ourselves as researchers and as citizens. We welcome any comments you may send us to help make this platform a more useful tool.