Statutory Encroachment on Freedom of Expression
Once again, Fundación LED (Libertad de Expresión + Democracia) is concerned over statutory encroachment. Indeed, while seeking to prevent discriminatory acts or statements, several Bills might actually entail serious limitations to the exercise of freedom of expression and of press.
On July 14 this year, the Human Rights and Guarantees Commission gave its opinion on the National Non-Discrimination Bill (“Ley Nacional contra la Discriminación”), introduced by Representatives Larroque, Fernández Sagasti, Comelli, Pietragalla Corti, Carlotto, Domínguez, Mendoza, Alonso, Gaillard and De Pedro, intended to repeal the Law on the “Exercise of Constitutional Rights and Guarantees. Actions against Discriminatory Acts” (“Ejercicio de Derechos y Garantías Constitucionales. Medidas contra actos discriminatorios”), No. 23,592, and to establish a new system of sanctions.
In this respect, Fundación LED reaffirms its position as an organization advocating for the protection and spreading of Human Rights in their broadest meaning, while condemning all kinds of discriminatory acts or behaviours towards any person or group of persons for reasons of beliefs, sex, race or religion. The above Bill, however, might limit the right to freedom of expression, and thus certain aspects of it need to be highlighted and reviewed.
In the first place, the Bill elaborates on the concept of “discriminatory acts,” but it does so in such a way that it is not easy to establish in which circumstances one may be subject to sanctions; consequently, almost any form of expression might be deemed a violation of the law.
Further, according to the text the burden of proof shifts, i.e. it is the accused that must show that they have not done anything punished by law. The Bill has, however, omitted a recent judicial precedent by the Argentine Court of Justice regarding freedom of expression in the case styled “María Belén Rodríguez v. Google Inc. et al re. Damages” (Judgments 308:789), namely that any and all restrictions on freedom of expression are deemed unconstitutional.
In the above circumstances, citizens, in particular social communicators and communications media, are exposed to situations that are very difficult to anticipate and control, and thus might be led to impose self-censorship.
Further, the fact that the Bill was treated in a context of Parliamentary initiatives aimed at criminalizing forms of speech pushing the limits set forth in our Constitution does not go unnoticed. Different underlying initiatives have prevailed in the above opinion, such as a Bill introduced by Representatives Remo Carlotto, Diana Conti et al in October, 2014, whereby the Instituto Nacional contra la Discriminación, la Xenofobia y el Racismo (INADI – National Institute against Discrimination, Xenophobia and Racism) was entitled to shut down Internet platforms that accepted user comments deemed to contain discriminatory messages.
Fundación LED has already made itself clear, having expressly pointed out that “regardless if the purpose is to safeguard the respect for diversity (that should prevail in any democratic society, having been recognized by the Argentine Supreme Court of Justice and given a preeminent place in the country´s institutional agenda), the violation of freedom of expression (including free access to information and freedom of opinion) is always unacceptable.” (http://www.fundacionled.org/articulos-y-monitoreo/rechazo-a-proyecto-de-ley-que-limita-la-libertad-de-expresion)
Indeed, Fundación LED also expressed the same opinion when in April, 2014, the House of Representatives of the Province of Chaco passed a Bill demanding that anybody wishing to post comments in Internet portals first had to mandatorily prove their identity truthfully and irrefutably.
At that time, Fundación LED pointed out that the powers vested on the Provincial Executive Branch harmed the principles set forth in the American Convention on Human Rights, namely that “The right of expression may not be restricted by indirect methods or means.” (http://www.fundacionled.org/articulos-y-monitoreo/preocupacion-por-proyecto-de-ley-de-la-provincia-de-chaco)
Similarly, the Bill introduced by the Entre Ríos Provincial Representative, Rubén Almará, passed by the House of Representatives of that Province in December, 2013, asked the Provincial Executive to urge “the competent national agencies to establish regulatory and restrictive policies in connection with electronic media, the Internet and social media for the purpose of blocking comments, expressions and information of criminal nature advocating for crime and violence, disrupting social peace, promoting hatred and intolerance, causing anxiety or failing to recognize lawfully appointed authorities.”
In the opinion of Fundación LED, “though freedom of expression is protected by federal regulations provided for in the Argentine Constitution and in Human Rights Treaties with Constitutional hierarchy, the Bill in question restricts it.” Further, Fundación LED has also pointed out that “according to Article 28 of the Argentine Constitution, the right to freedom of expression cannot be changed in any way by any law implementing the exercise thereof; only in situations of the utmost gravity may the National Government use curtailing powers, after having first accounted for such decision properly and after having established a given time frame during which such guarantee is to be suspended.” (http://www.fundacionled.org/articulos-y-monitoreo/preocupacion-por-proyecto-de-ley-de-la-provincia-de-chaco)
Consequently, it is necessary to warn the general public about this type of encroaching initiatives which restrict the free circulation of ideas and opinions and harm the rights provided for in the Argentine Constitution and in the International Treaties incorporated in it.
To this effect, according to Articles 1.1 and 24 of the American Convention, the Organization of American States, in its Guiding Principles on Freedom of Expression on the Internet, in particular regarding non-discrimination, pluralism and net neutrality, has established that pursuant to articles 1.1 and 24 of the American Convention, States are required to “adopt affirmative measures (legislative, administrative, or in any other nature), in a condition of equality and non-discrimination, to reverse or change existing discriminatory situations that may compromise certain groups’ effective enjoyment and exercise of the right to freedom of expression.”
We must make sure that ideas and opinions may circulate freely in the digital media, because these attempts at regulating contents posted in social media and Internet websites may result in actions intended to repress freedom of expression.
In view of the above, at Fundación LED we believe that the State should join forces to tackle strategies aimed at sanctioning discriminatory acts in an integral and accurate way, given that such broad assumptions as those set forth in the above opinion may harm the citizens´ freedom of expression.
At Fundación LED we shall keep on striving for the full validity of Human Rights; indeed, we shall convey our position and the background data of each case to national parliamentarians, while following up closely on the legislative process, making sure that the fundamental principles for the development of a democratic society are taken into consideration.