Notes on preliminary findings of a study of legal provisions and practices related to freedom of expression, and media pluralism on the Internet, being prepared by the Center for Studies on Freedom of Expression and Access to Information.
These preliminary findings were presented by Eduardo Bertoni at the Deutsche Welle Global Forum: “Human Rights in a Globalized World – Challenges for the Media.” Bonn, Germany, 20-22 June.
By Eduardo Bertoni
Director of the Center for Studies on Freedom of Expression and Access to Information , Palermo University School of Law
The Center for Studies on Freedom of Expression and Access to Information (CELE) at the Palermo University School of Law -Argentina- has been particularly interested in the work being conducted by the office of the OSCE Representative on Freedom of the Media on Internet regulation in OSCE Member States. We translated and adapted the questionnaire that was used on the OSCE study, CELE distributed the Spanish version among the experts and organizations in the region. The questions dealt with regulation, case law and policies related to topics such as: Internet access, Internet content regulation, blocking, filtering and content removal, licensing requirements and liability of Internet Service Providers.
The information gained through this process is important for establishing trends in legislation and case law on key issues. These are some of the preliminary conclusions of our ongoing research:
1- Our study has found that for most countries in the region, special laws for Internet space have not been passed. Generally, law is applied “as is” to Internet activity. This results in uncertainty, contradictory judicial decisions, and excessive judicial discretion.
2- There is a lack of clear guidelines as to the consequences of Internet speech for Internet users and providers of Internet services. The study of judicial sentences dealing with privacy and defamation in the region also demonstrates a lack of understanding by judges on the complexities of Internet speech.
3- In most countries in the region, Telecommunication laws often do not regulate the Internet specifically. However, in some instances, Courts or regulatory bodies interpret the law as including the “Internet” within their definition of communications media, thereby including it within the scope.
4- In criminal codes, the Internet is for most regulations, treated as only one more way in which content is displayed or transmitted. In some instances, the fact of distribution itself –through the Internet or other communications media – aggravates the crime.
5- In defamation cases, Courts have generally interpreted the Internet as one more way in which the allegedly offensive content may be distributed.
6- In most countries in the region, specific Intellectual Property regulation that refers to Internet activity has not been adopted and generally, the existing regulation is applicable to Internet activity.
Finally, Internet access is of fundamental importance, globally and in Latin America. In Latin America, the number of Internet users is still low compared to other regions. However, in most countries in the region, access to the Internet is not an enforceable right.
It is true that there have been a few initiatives that declare that access to the Internet is a fundamental right and attempt to expand access to the service. But although several countries in the region have declared the importance of increasing access to the Internet, there has been little investment in infrastructure, and at least Mexico, Peru, Argentina and Paraguay display a high degree of concentration in their telecommunications markets.
In conclusion, there is a lot to be done in Latin America.