Introduction
The growing intervention of Internet platforms in the contents of their users has become an issue of concern throughout the world. In fact, «private control» is considered by none other than the Rapporteurs on Freedom of Expression1 as one of the three main challenges over the next decade and a «threat to freedom of expression». For said rapporteurs, “a transformative feature of the digital communications environment is the power of private companies, and particularly social media, search platforms and other intermediaries, over communications, with enormous power concentrated in the hands of just a few companies».
This concern is nothing new, given that on many occasions both international bodies and digital rights organizations have questioned such practices and made recommendations for corporations to make a change in policies and practices in order to align with international human rights standards.2
For its part, the United Nations (UN) Office of the Special Rapporteur on Freedom of Opinion and Expression has published several reports on the issue3, while the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) has observed for many years that “Intermediaries must thus keep their activities from provoking or helping to provoke negative consequences on the right to freedom of expression” in their voluntary measures for content moderation, which “can only be considered legitimate when those restrictions do not arbitrarily hinder or impede a person’s opportunity for expression on the Internet.” 4
There is also a growing interest among governments and legislative congresses, including both authoritarian regimes and consolidated democracies, to regulate activities and the distribution of content, particularly through the regulation of content disseminated via social networks. However, most of these legal initiatives configure solutions that are illegitimate or disproportionate, assigning responsibilities and obligations that transform the platforms into judges or even a private police force over the contents of third parties disseminated via the Internet.
The undersigned oppose such regulations and will continue to maintain this stance. However, we believe that the self-regulation model that has prevailed until now has run its course in the current development of the Internet, where a handful of corporations have centralized and concentrated the circulation, exchange or search for information and opinions, thus distorting the idea of the decentralized, free and open Internet that we have long struggled to create.
In response to this polarized scenario of “corporate self-regulation vs. authoritarian or excessive regulation”, several Latin American organizations believe that a third way is not only necessary but indeed possible. This third way involves building a proposal for democratic, adequate and intelligent regulation that can ensure adequate regulatory environments to protect human rights from the interventions of technological giants, while respecting international human rights standards.
The gatekeeper role of these companies requires that democratic societies set limits on such powers to ensure the effectiveness of historically recognized rights and freedoms, as well as the predominance of the general and public interest.
However, the proposals are not intended to cover all Internet intermediaries. Rather, they are limited to certain types of platforms and applications whose main purpose is to enable or facilitate access to information on the Internet and/or to provide support for expressions, communications and exchanges of content among its users (including social networks, search engines and video sharing platforms, but not messaging services).
A principle of “progressive regulation” is proposed based on the impact that the measures taken by intermediaries have on the exercise of fundamental rights on the Internet, in particular freedom of expression. That is, regulations should be stricter for major platforms that, for its size and reach, have become public spaces of deliberation and/or are the main entry routes for access to information, and which have an excessive level of concentration.
In view of these special characteristics, the aim is to create a regulatory environment that is appropriate for the functioning and characteristics of the Internet and that includes mechanisms of self-regulation, co-regulation and public regulation. This with the understanding that the challenges presented by the new digital scenario (including the speed and volume of information) do not allow for the application of unique and equal solutions as in other support systems for information and communication.
The document does not propose legislation that determines which content can be disseminated on the Internet. Nor does it require that platforms moderate their content. However, if they decide to do so, a series of conditions should be established so that their users’ fundamental rights are not violated. Thus, proposals are included on what are the limits for content moderation that these platforms already implement, so that their terms of services, criteria and procedures are compatible with international human rights standards, taking specially into account the protection of minorities and vulnerable groups.
A democratic and balanced regulatory system should also protect platforms from the illegitimate pressures of governments and other stakeholders. As intermediaries, they are key to facilitating the exercise of these rights, and therefore the proposals include recommendations so that the regulatory frameworks allow such platforms to fulfill that role in an appropriate manner: no legal responsibility for third-party content or prohibition of obliging them to undertake generic monitoring or supervision of contents represent some of these recommendations.
Private regulation of the Internet is produced and aggravated by a context of the robust concentration of power among a small handful of international corporations. Public regulation of the activities of these platforms should adopt anti-monopoly measures to counter such an environment of concentration and the absence of competition, but such proposals are not included in this document. Nevertheless, the simple fact that the main public spaces for the circulation of information and opinions can all be controlled by just one company, should oblige the antitrust bodies of the United States and other countries to act.
Neither have we included in this proposal important issues such as mechanisms to guarantee pluralism and diversity on the Internet or the tax issue. Rather, the document focuses on issues related to content moderation, offering principles that can be generally applied. Moreover, the specificities of certain services justify specific approaches. For example, for cultural services, positive obligations for the protection and promotion of cultural diversity should be adopted in line with the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
Lastly, any norms and institutional designs that are adopted must be adequately developed. This should take into account the needs of market regulations subject to continuous development, the specific characteristics of the digital environment in each country, and the unique requirements of Latin America within the context of international human rights standards.
The document is organized in the following chapters:
1 Joint Declaration: Challenges to freedom of expression in the next decade of the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression; the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media; the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, 2019
2 Including the Santa Clara Principles
3 Internet Content Regulation, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 2018
4 Freedom of Expression and the Internet, IACHR Special Rapporteur for Freedom of Expression 2013, Paragraph 111
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