curación y moderación de contenidos privacidad y vigilancia

Latin America Legislative Report 2020/21

Starting this year, the CELE Legislative Observatory will be posting a summary of monthly legislative activity and/or regulatory developments, court decisions, or private content moderation decisions occurring in the nine countries that are part of the Legislative Observatory, providing context and links related to the topics of inter

By Matías González Mama

Starting this year, the CELE Legislative Observatory will be posting a summary of monthly legislative activity and/or regulatory updates, judicial decisions, and private content moderation decisions from the nine countries that are part of the Legislative Observatory, providing context and links related to topics of interest. It is worth noting that legislative activity varied significantly in December 2020 and January 2021. In Argentina, Brazil, Colombia, Guatemala, Mexico, Ecuador, Paraguay, and Peru, the legislative branches went into recess (though not at the same time), so some issues remained pending debate until February or March of this year. We thank our consultants for their work and contributions to this regional summary: Victor Cabezas (Ecuador), Camilo Filartiga (Paraguay), Álvaro Castellanos (Guatemala), Ártur Pericles (Brazil), Luisa Isaza (Colombia), and Andrés Calderón (Peru).

Ecuador:

  • Ecuador’s Communications Law has been one of the pieces of legislation that has generated the most debate regarding freedom of expression. In the view of some human rights oversight bodies, the law failed to meet minimum standards in this area. A key issue was the existence of a Communications Superintendency reporting to the executive branch with the authority to sanction content. Starting in 2018, this law underwent significant changes in the National Assembly, including the elimination of the Superintendency.
  • Currently, a new reform is under discussion, primarily regarding the classification of the media as a public service. This was one of the most significant issues, as state intervention in the free flow of information was determined by the classification as a public service. Now, the President has partially vetoed this legal reform, primarily demanding that digital media also be considered media outlets, given that the bill proposed by the legislature limits media outlets to radio, print media, and television.
  • The National Assembly’s Commission on Collective Rights has issued a non-binding report recommending that the full legislature reject the partial veto. Now, 91 votes are required to ratify the original text.
  • A recent massive leak of personal data that occurred in 2019 compounded an ongoing barrage of telemarketing companies and made the issue of data protection one of the utmost importance.Ecuador is one of the few countries in the region that lacks data protection regulations. Although the Constitution establishes this as a fundamental right of all citizens, there are no legal mechanisms to regulate the collection, management, processing, use, and revocation of consent for the use of personal data.
  • Currently, the bill is under consideration by the National Assembly, in its first reading.

Colombia:

  • In December, Congress approved a new electoral code. The bill (introduced by the government, the National Registrar, and the President of the National Electoral Council) was fast-tracked after the government issued a declaration of urgency. As a result, there was little opportunity for serious debate. The code contains several provisions that restrict freedom of expression: it punishes criticism of political parties and movements, restricts the right to access certain types of information from the Registrar’s Office, and establishes ambiguous provisions regarding political violence against women. The code has not yet been enacted into law because this type of bill is subject to automatic constitutional review by the Constitutional Court. It is expected that the constitutionality of many provisions, including those restricting freedom of expression, will be debated in that forum.
  • In December, a group of 30 House representatives introduced a bill that seeks to provide economic stability to the media, which has been affected by the coronavirus pandemic. To this end, the bill proposes exempting advertising services from sales tax (VAT) and creating an income tax deduction for investments in media advertising. The bill was well received by the media and media associations.

Brazil:

Guatemala:

  • Reforms were proposed to both the Law on Non-Governmental Organizations for Social Development and the Civil Code. The legislative proposal was widely rejected by civil society, which believes that the government and Congress seek to establish mechanisms to interfere with these types of organizations and, in particular, to neutralize entities dedicated to the comprehensive protection of the human rights of vulnerable groups. The President of the Republic was asked to veto the law (Decree 4-2020), but he did not do so. In response to eight constitutional challenges filed by various NGOs and with the vote of four out of five justices, in March 2020, the Constitutional Court suspended the reforms. The court ruled that the reforms “may seriously undermine human rights or lead to non-compliance with international standards” (such as the American Convention on Human Rights). The NGOs pointed out that, if implemented, the reforms would entail violations of the rights to freedom of association, freedom of action, legal certainty, due legislative process, freedom of expression, and citizen participation. A final decision from the Constitutional Court is expected in the first half of 2021.
  • In the wake of the events that took place in January 2021 in Washington, D.C., and the subsequent suspensions or cancellations of President Trump’s accounts on various social media platforms, there is a growing sentiment in Guatemala regarding the need to regulate certain activities or services provided by intermediaries. In principle, key opinion leaders reject the possibility of suspending or canceling accounts on various platforms, viewing such actions as a form of prior censorship, and suggest prohibiting this practice.

Peru:

  • In November 2020, a minority caucus introduced the first bill proposing to punish those who spread fake news during the electoral process (general elections are scheduled for April 2021) through mass media with a prison sentence of no less than two years. If the offender is a candidate, they must be excluded from the ongoing electoral process.

  • Both the Ministry of Justice and the Ministry of the Interior have previously stated that the dissemination of fake news could constitute a crime already defined in the Peruvian Penal Code (the crime of serious disturbance of the public peace) and that they would file charges against those who spread it. However, to date, they have not filed any complaints.

  • January 2021—The Executive Branch announced the launch of a campaign to combat misinformation regarding COVID-19 vaccines. The President of the Council of Ministers, Violeta Bermúdez, noted that in Peru there is “skepticism” regarding the upcoming importation of COVID-19 vaccines, which were recently acquired by the government. The president attributes this mistrust to the misinformation citizens are receiving, which is why the government has decided to launch an informational campaign to share details about the processes that ensure the vaccine’s safety and effectiveness.

  • January 2021 - The National Elections Board (JNE) has called for the adoption of biosafety measures for election campaigns ahead of the April 2021 elections. Following the release of images showing several candidates failing to comply with mandatory social distancing, the president of the JNE asked the Ministry of Health to develop a specific protocol for election campaigns. He also noted that the JNE lacks disciplinary authority; therefore, he believes the Executive Branch should rule on possible sanctions, and that compliance with the health protocols could be incorporated as a commitment by the parties signing the Electoral Ethics Pact.

Argentina

  • In November and December 2020, two bills were introduced in the Argentine Senate and Chamber of Deputies seeking to amend the Personal Data Protection Act (Law 25,326). Both the bill introduced in the Chamber of Deputies and the Senate generally follow the approach of the bill presented in 2018 by the Executive Branch (which closely aligns with the standards of the European Union’s General Data Protection Regulation). Although not identical, these new bills introduce the following changes: they propose new categories of data, incorporate the concept of accountability or proactive responsibility, limit personal data to natural persons, extend the definition of adequacy to supranational bodies, and increase fines, among other changes. Due to the parliamentary recess, consideration of both bills was postponed until the resumption of regular parliamentary session on March 1, 2021. Neither bill will be considered during the special session that began on January 27, 2021, because they were not included in the agenda by the Executive Branch.
  • In December 2020, the Supreme Court of Justice of the Nation ruled the case Pando v. Revista Barcelona and overturned the conviction imposed on the magazine in previous proceedings. In its ruling, the Court emphasized the fundamental role played by the right to freedom of expression due to its special connection to democracy. While noting that the right to freedom of expression is not an absolute right and that it has its limitations, the Court pointed out in this case that the magazine’s statements constituted what has historically been termed political satire, It also noted that this satire referred to the plaintiff’s (Pando’s) public persona, based on statements made in a public forum, and that it was, furthermore, linked to a matter of public interest (crimes against humanity). Additionally, the Court dismissed the plaintiff’s arguments alleging gender-based violence. It is worth noting that several of the arguments used by the Supreme Court were presented by CELE in this amicus curiae in 2017.

Paraguay:

  • In December 2020, the Executive Branch presented the National Plan for Integrity, Transparency, and Anti-Corruption. This Plan involves the three branches of government and seeks to address issues such as transparency, access to information, and citizen participation; the development of a culture of integrity, the civil service, and the principles of suitability and merit.It also focuses on the control framework for public procurement, internal systems, and risks; the State’s capacity to investigate and sanction acts of corruption; and the management of communications and actions related to the plan.

Mexico:

  • On July 1, 2020, amendments to the Federal Copyright Law and the Federal Criminal Code were published, with the aim of harmonizing Mexican legislation with the provisions of the USMCA. Current provisions allow private entities to request that intermediaries remove from their platforms documents protected by copyright held by those entities. The problem is that there is no obligation to assess whether the removal interferes with other human rights, including the rights to freedom of expression, information, education, or culture. It also imposes disproportionate penalties on those who file a counter-notice. The National Human Rights Commission filed a constitutional challenge, which is currently pending.
  • The President of Mexico and the President of the Political Coordination Board of the Senate (Ricardo Monreal) have expressed their displeasure with the actions of social media platforms such as Twitter and Facebook in suspending the account of the then-President of the United States of America, considering it an act of censorship. In light of this, they have publicly stated the need to regulate social media platforms so that they do not censor individuals, and have even proposed public investment to create a free social media platform. Article by: Matias Gonzalez @thaumatropo