This article was co-written with EFF volunteer, Ana María Acosta.
In an effort to promote tolerance and equality in Argentina, online censorship could become a reality. Argentina’s House of Representatives is currently debating a series of reforms to the National Anti-discrimination Act, a bill that was enacted in 1988. The current proposal would require online platforms that allow user comments to monitor and remove any content considered “discriminatory” according to the vague and ambiguous provisions outlined in the proposed reforms. The amendments would also make it a criminal offense to publish discriminatory or insulting comments on Internet sites, punishable by fine or even prison time.
This draft proposal is problematic for four reasons. First, the proposal’s definition of “discriminatory contents” is excessively broad and ambiguous, and even considers non-violent speech to be criminal. Second, it requires intermediaries to publish terms and conditions that say users should refrain from publishing any discriminatory comments before entering the site. Next, it urges intermediaries to take any measure deemed necessary for preventing discriminatory content from spreading. And lastly, the proposal sets a sentence of up to three years for those who assist or promote a person or organization in publishing discriminatory content.
If this proposal is enacted, it would most certainly stifle free expression and promote self-censorship. We may also see website administrators increasingly monitoring their users in fear of legal retaliation.
The draft amendments violate, under international human rights law, the fundamental right of free expression. Eduardo Bertoni, lawyer and former Special Rapporteur for Freedom of Expression of the Organization of American States (OAS) and Director of the Center for Studies on Freedom of Expression and Access to Information (CELE) at the University of Palermo in Buenos Aires, Argentina, is one of the many scholars who has expressed his views regarding such undefined legislation in this area:
Inter-American human rights framework contemplates a broad protection on right to free expression. For at least 30 years, the Inter-American Court of Human Rights states that laws establishing limitations on freedom of expression must be written clearly and precisely, given that broad and vague rules may have a deterrent effect on the opinions for fear of sanctions. The main problem is that vagueness in the definitions can lead to judicial interpretations that restricts freedom of expression and grant discretional faculties to authorities in an unacceptable way according to the Inter-American Convention of Human Rights.
Furthermore, the draft bill is contrary to the Manila Principles, a set of guidelines for intermediaries created by human rights organizations including EFF. In particular, this proposal contradicts the Manila principle that outlines “any content removal order must be clear, unambiguous and must respect due process.” This is a crucial principle because intermediaries should not be forced to substantially evaluate the legality of the content its users publish.
The Association for Civil Rights (ADC, Asociación por los Derechos Civiles), an Argentinian NGO that defends fundamental rights on the Internet, has described the anti-discrimination draft bill as unconstitutional. “The proposal violates the principle of legality and freedom of expression on the Internet; it limits public debates and is not suitable to solve the problem it addresses; it provides little precision in the affirmative action measures”, they stated.
Valeria Milanes, Director in Freedom of Expression, Information Access and Privacy areas for ADC, told EFF:
We see with great alarm that this project puts at risk the freedom of expression in the digital environment through vague definitions, through the creation of content removal mechanisms which the determination and implementation would remain in private hands, and also through the allocation of punitive responsibility to those who do not comply with such obligations. We may think that the draft authors do not understand the digital environment operation and they have failed to see that the proposed text has an effect of censorship.
Argentina, which, in the past, has demonstrated its commitment to the promotion of freedoms, must also defend free expression, a right that’s outlined in its constitution and international human rights standards. As the Inter-American System has noted: A society that is not well-informed is not truly free. EFF will continue writing about the status of this bill in the following weeks.