Latin America's Drive for Internet Content Control
Photo Credit: Boston University
Recent legislation in Ecuador and high-profile cases in Brazil and Argentina reveal a broader Latin American trend of increasing restrictions on internet freedom.
Over the past 18 months, Latin America has borne witness to a changing legal landscape that directly impacts internet freedom. Constraints have come in varying forms in different countries, yet each affects the scope and depth of the content that can be found online. High-profile cases of intermediary liability—in which internet service providers (ISPs), website hosts, and search engines are held legally, and at times, criminally responsible for user-generated content—have come to the fore in Brazil and Argentina. In Ecuador, the June passage of the Organic Law on Communications set a legal precedent for holding platforms responsible for content posted by users, placing further legal pressure on an environment already under threat.
Intermediary liability is dangerous for a number of reasons: it poses the threat of expanding governmental control of editorial content to the point that dissent is eliminated and critical voices are stifled; it encourages rigid gatekeeping of content by third parties, such as ISPs and website owners, effectively narrowing the range of voices represented online; it creates arbitrary, country-specific norms for policing the internet; and it leaves both intermediaries and users in an abyss of legal uncertainty. Criminalizing online expression is likewise a dangerous trend, particularly when criticism of elected officials is targeted. Without the internet as a forum for free policy discussion and open debate, citizens are less able to fight for reform of bad legislation, less likely to make their voices heard, and less capable of working together to promote democratic ideals and keep authoritarian tendencies in check.
In Brazil, the stringent application of an electoral law predicated on maintaining the dignity of candidates has resulted in an increasingly litigious environment in which intermediaries are now subject to criminal charges. Brazil leads Latin America in terms of the number of requests it submits to Google for content removal. In 2012, it issued more removal requests than any other country in the world, a trend that owes much of its momentum to the country’s electoral law. During the 2012 municipal election period, over 200 such requests were sent to Google specifically related to content that violated the electoral law. The law, which prohibits coverage of candidates for three months prior to elections and bans any online content that might “offend the dignity or decorum” of a candidate, has also triggered criminal proceedings against two Google executives, Edmundo Luiz Pinto Balthazar and Fabio Jose Silva Coelho. Both are being held legally responsible for failure to remove content posted by users on Google-owned sites. While Google maintains that as a platform, it is not responsible for user-posted content, criminal cases against Balthazar and Coelho are still pending.
In Argentina, cases of intermediary liability have been on the rise in recent years, although they tend to focus on illicit images deemed morally damaging to entertainers rather than criticism of politicians—and in contrast to proceedings in Brazil, to date, they have not included criminal charges. In cases brought by actress Paola Krum and model Barbara Lorenzo in 2012, injunctions were issued against Google and Yahoo requiring the deletion of links to questionable material from search results, and in some cases the payment of up to thousands of dollars in damages to the injured parties. In making these rulings, the Argentine court treated search engines and other intermediaries as primarily responsible for content linked to or hosted on their sites. While ordering the removal of damaging content is reasonable, fining a company for the automated results generated by its search engine sets a dangerous precedent, as it encourages company-mandated censorship of search results. These types of cases, if applied broadly, would limit access to wide-ranging categories of content on the basis that such material might hold the potential for legal disputes.
In Ecuador, new legislation codifies President Rafael Correa’s tendency to use the courts to respond to journalistic criticism of his administration. Under the recently passed Organic Law on Communications, intermediaries are saddled with “ultimate responsibility” for all hosted content—including reader comments. Prior to the law’s passage, reader comments critical of Correa have been grounds for lawsuits against online newspapers, and critical content aimed at the president has been subject to retaliatory lawsuits initiated by the administration. In the past, rulings have included deletions, orders to publish public apologies, excessively large fines, and prison sentences, although the latter have always been overturned under appeal. Under the new law, which has broad negative implications for freedom of speech and freedom of the press, intermediaries are also legally liable for online content that is deemed unbalanced, insulting, or “undermining to the prestige of an official.” Such wide-ranging and arbitrary legislation greatly expands governmental control of editorial content—encouraging censorship by both intermediaries and authors—and threatens to seriously weaken freedom of expression and of the press.
Although their scale, justification, and rigor differ, the legal issues that are reshaping the internet landscapes in Brazil, Argentina, and Ecuador center on two key issues: defining the scope of culpability and determining the boundaries of free expression. The laws adopted in Brazil and Ecuador have the potential to influence the regional media landscape by setting precedents for other countries currently considering internet legislation, such as Colombia. Whether the tide turns toward upholding international freedom of expression norms will depend in part on domestic and international responses to recent court cases and legislative measures. In this context there exists a concrete opportunity to influence the direction of freedom in Latin America via reinforcement of positive legislation and international human rights norms, support for local advocacy frameworks, and working to keep international media focused on the legal changes sweeping through the region’s internet freedom landscape.
For more information on the global state of internet freedom in 2013, please see: //www.freedomhouse.org/report/freedom-net/freedom-net-2013.
Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.