SLEEPING WITH GHOSTS: LATIN AMERICA’S STRUGGLE TO PROTECT THE DIGITAL SPHERE

Introduction

The academic debate on forms to regulate the flow of information on the Internet has,  unsurprisingly, focused on the US and European paradigms. Although cyberspace’s decentralized, privatized, and globalized nature constitutes a challenge for every constitutional democracy in the world, the attention is centred on these two regions, each one translating its dreams and nightmares into digital policy. While examining these oneiric experiences is mandatory to understand the trends in Western Internet governance, it is urgent to expand the transatlantic discussion. How has Latin America’s context conditioned the conversation on regulating the digital sphere? What should be the Latin American vision for an innovative, fair, and safe information society?

The US and European Approaches

Two decades after the emergence of the Internet as the defining technology of our time, the regulatory landscape of the West regarding online content shares a strong liberal basis. However, the landscape has been increasingly drifting apart regarding the responsibilities and obligations of digital intermediaries.

The American dream for the Internet is embedded in the cyber-utopianism of the 90s and the neoliberal economic belief that the best the state can do for the Internet is to stay away. Faithful to this vision, the US created and exported the famous Section 230 of the Communications Decency Act to shield digital intermediaries from liability regarding third-party content. Fearless of lawsuits, these companies thrived. Today we have a few dominant American platforms that shape online discourse throughout the globe with questionable transparency and accountability procedures. Although recent events have led to some legislative attempts to retrace these steps and build a more balanced digital landscape, the US seems trapped between bipartisan lines and a rigid doctrine of the First Amendment that makes any agreement to regulate online communication appear distant (and for some, even unconstitutional).

In contrast, Europe’s nightmare has come true. Besides not having ‘domestic’ social media platforms, the region has suffered, as a hopeless outsider, the social costs of online disinformation, electoral manipulation (i.e., Brexit), hate speech, and terrorism. Therefore, although initially adopting a liberal regulation model, the European Union today experiences the rising power of Internet intermediaries as a loss of digital sovereignty. The midnight story is about the urgency of online safety and the battle against harmful content. However, underneath the covers, the European Parliament acknowledges the fear of losing control over data, the capacity for innovation, and the ability to shape and enforce legislation in the digital environment. Consequently, the EU Digital Services Act (DSA) proposal establishes enhanced responsibilities for providers of intermediary services such as due diligence obligations, transparency reports, and a cooperation mechanism across the Member States for oversight. This reactive super-regulatory approach has been contested for incentivizing over-removal of content and chilling effects, but the social outcry against American Big Tech (widely perceived as greedy and irresponsible) seems to back it up. 

The Latin American real-life ghost stories

Latin America joins the race to regulate online communication from a rather different place. A shared past of military dictatorships and authoritarian regimes during the last century speaks loudly to the region. In all their diversity, Latin American countries share (very real) ghosts that hunt policymakers, activists, and civil society alike. Among these spectres, we highlight censorship, surveillance, and international interventionism. This is not because they are geographically exclusive (which clearly they are not) but because they are particularly pervasive when combined with a lack of institutional spells to counter them. Their constant apparitions in broad daylight feed the justifiable suspicion that if governments have the slightest opportunity to interfere with the free flow of ideas in the digital sphere, they will do so.  

1.Censorship

The specter of state censorship has long loomed over Latin America. Widely considered one of the deadliest places for press freedom, the region copes with the constant intimidation, imprisonment, and murder of journalists, as well as with undue state control and closure of media outlets. The stigmatization and criminalization of social protests are well documented. In this context, regulating the Internet poses significant questions about ceding governments’ new points of speech control. 

Civil society groups have reported new mechanisms of censorship in the digital sphere. Some of these are particularly worrisome because they involve Internet infrastructure as a proxy for content control. These incidents include selective shutdowns (Ecuador, Nicaragua, and Venezuela), domain name blockages (Mexico), and content restrictions during social demonstrations (for instance, during the October 2019 protests in Chile and the 2021 national strike in Colombia). 

The acknowledgement of a past (and present) of dissuasion, harassment, and elimination of dissent explain why, when regulating digital intermediary liability, the first standard set in Latin America followed a conditional liability framework that combined the notice-and-takedown scheme with the necessity of a judicial injunction. The requirement of a court order to remove online content (instead of a merely administrative one, as in the proposal of the EU DSA) seeks to establish a higher legitimacy test in a region where the suppression of information is intrinsically suspicious. 

Latin America has also resisted the recognition of a right to be forgotten (RTBF) as developed in the legal framework of the European Union. We illustrate this trend with the cases of Argentina, Brazil, and Colombia. Last June, the Argentinian Supreme Court decided in the Denegri case that the right to seek and access information has a more robust constitutional standing when public interest is concerned, backing Google and diluting the RTBF. In 2021, the Brazilian Supreme Court upheld the unconstitutionality of the RTBF in the Aida Curi case, ruling that the acknowledgement of such a ‘right’ wrongly prevented the disclosure of facts or data that are true and lawfully obtained/published in analog or digital media. In 2015 the Colombian Constitutional Court granted the plaintiff’s request to de-list a newspaper article in the El Tiempo case, where she was described as being involved in a crime for which she was not ultimately convicted. Notably, the Court pointed out that access to information regarding public officials, candidates, crimes against humanity, and gross human rights violations could never be restricted since its dissemination exceeds any personal interest, despite maintaining safe harbor provisions for ISPs and imposing the de-listing obligations to the original publisher. 

This judicial aversion to content removal is hardly surprising in a region that has long fought to recover and conserve historical material concerning the crimes committed during dictatorships and armed conflicts. The judicial balancing of personal rights in RTBF cases illustrates a region’s dream to preserve memory and protect a “right to truth” in the context of serious human rights violations. Simply put, Latin American democracies cannot afford to forget.  

2.Surveillance 

While state surveillance is an ‘old’ ghost in the region, Latin American citizens are today surveilled to an unprecedented intensity and scale. Alongside malicious spyware (such as the Pegasus project, which allowed the Mexican government to track more than 15,000 smartphones owned by journalists and political dissenters) and facial recognition technologies, the Internet’s content layer is subject to police monitoring. Social organizations keep raising alarm about the ‘cyber patrolling’ of websites, profiles, and social networks being carried out without legal guarantees of necessity and proportionality. In this context, protecting charms such as encryption and anonymity appear distinctively indispensable in the region.  

Additionally, the relationship between national governments and platforms is not necessarily perceived as one that challenges the predominance of public regimes over transnational private powers. Populists feist on the possibility of directly reaching their constituencies outside traditional media outlets and circumvent the traditional limits imposed on political communication through party politics and electoral rules (Barber, 2019; Conceição, 2022). Furthermore, governments and external actors use the legal framework to instrumentalize private platforms and extend their surveillance mechanisms – consolidating aspects of the surveillance-industrial complex (Hayes, 2012).

3.Interventionism

A third phantom that hunts the Latin American approach toward digital policy is fed by the region’s prior experience with interventionist agendas. Long before the Russian intervention in the 2016’s US election put the data collection capabilities of social media platforms in question, Latin America had been subjected to interventionist digital campaigns aiming to legitimize and maintain military rule. In Chile, the “Cybersyn project,” designed by Stafford Beer and implemented during Allende’s mandate in 1970, was expanded and repurposed after Pinochet’s coup d’etat. While the original project envisaged a perfect planned economy through extensive data collection (Medina, 2014), Pinochet’s version used the data analysis capabilities of early 1970’s computers to track and surveil insurgents and communist cells in the territory. The initiative’s success led to the US government investing more resources in the program, expanding towards neighboring countries through its ‘Operation Condor’ (Deane, 2015). 

More recently, a similar interventionist agenda was perceived in Cuba with the ZunZuneo Project. The US government used its international development agency (USAID) to institute a social media platform similar to Twitter for Cuban citizens between 2010 and 2012. The social network would evaluate users’ reactions to make a profile of each subscriber, where the users’ answers and reactions to specific messages deployed on the platform would guide their political profiling. The purpose was to foment political dissent in the Cuban community, motivating “smart mobs” to protest Castro’s rule (Arce, 2014; Harcourt, 2015). 

Knowing these real-life ghost stories by heart, it is hardly surprising that Latin Americans feel chased by state censorship, surveillance, and interventionism when discussing Internet governance.

Shedding Light in Latin American Digital Policy

Where the main threats to the free flow of online information appear to come from governments (both national and foreign), the debate over the proportionate regulatory framework acquires distinctive attributes. These anxieties can be perceived in version 2.0 of the Santa Clara Principles. Organizations and academics from the Global South introduced minimum standards on content moderation for governments in this civil society initiative that initially targeted only tech platforms. 

Our haunted house significantly explains the skeptical view toward state involvement in the digital sphere. However, this skepticism should not impede the necessary regulation of private intermediaries. Companies may get as nasty as any of our old ghosts. On the other hand, a regulatory approach that focuses only on government agencies to materialize fundamental rights in the digital sphere is not a solution either. To the extent that Latin America distances itself from the libertarian dream of the US – still very common among cyber-optimists – and takes the European regulatory experiment with a grain of salt, the region should be able to strike the right balance between keeping a free and open Internet and holding tech companies meaningfully accountable. 

A vision for heading forward in Latin America is a more robust participatory approach to online content moderation where a plurality of stakeholders 1) oversees the (often opaque) collaboration between governments and digital intermediaries and 2) counteracts social and political inequalities. Co-regulation with extensive industry and civil society participation may exorcise some of our evil spirits. The region has recently explored some of these ways with modest success. 

Examples range from the Brazilian Marco Civil da Internet stating that the role of public authorities on the Internet should follow the guideline for the maintenance and promotion of multistakeholder governance mechanisms (Art. 24, sec. I) to the collaborative initiatives to prevent disinformation and other risks during elections. For instance, the Mexican National Electoral Institute and Facebook signed an agreement to identify and eliminate the spread of disinformation during the country’s elections in 2018. The Brazilian Superior Electoral Tribunal established a similar collaborative program with political parties, regulatory agencies, civil society representatives, and the dominant social media platforms in 2020 – a program later expanded towards the country’s general election in 2022. 

Although these incipient hybrid models still need to be rigorously evaluated, improved and multiplied, they illustrate how transparent cooperation between state and private actors overseen by civil society may constitute a piece of the puzzle of online content moderation in our haunted house. The crucial challenge for Latin America is to get rid, thoughtfully but decidedly, of the fear paralysis reflex (that maintains a status quo that is convenient for everybody but the citizens) and build a legal framework that effectively safeguards fundamental rights while keeping those specters under control.

Suggested citation

Luz Helena Orozco y Villa and Lucas Henrique Muniz da Conceição, ‘Sleeping with Ghosts: Latin America’s Struggle to Protect Digital Sphere’ (The Digital Constitutionalist, 18 January 2023). Available at: