All Content Related to Latin America

Latin America

evan — Tue, 15 May 2007 15:36:29 -0400

Introduction

With the exception of Cuba, systematic technical filtering of the Internet has yet to take hold in Latin America. The regulation of Internet content addresses largely the same concerns and strategies seen in North America and Europe, focusing on combating the spread of child pornography and restricting child access to age-inappropriate material. As Internet usage in Latin America increases, so have defamation, hate speech, copyright, and privacy issues.

The judiciary in Latin America has played an important role in shaping and tempering filtering activity, a development common to North America and Europe. At the same time, there has been a wide range of legal and practical responses to regulating Internet activity. Latin American countries have relied primarily upon existing law to craft remedies to these challenges, though a growing number of Internet-specific laws have been debated and implemented in recent years. These issues have been addressed primarily through the application of cease and desist orders in conjunction with requests to have materials removed from search engine results.

Though most Latin American countries have ratified the American Convention on Human Rights,1 a regional treaty that guarantees the freedom of expression, speech continues to be threatened by government authorities, drug cartels, and others. In particular, journalists have long been targets of a range of attempts to obstruct or limit speech, from government threats to withhold publication licenses to outright intimidation and physical violence. In 2006 and 2007 journalists in Argentina, Bolivia, Brazil, Colombia, Ecuador, Guatemala, Guyana, Haiti, Mexico, Nicaragua, Paraguay, Peru, and Venezuela were threatened, physically attacked, or murdered while others disappeared.2 For journalists working in Latin America, death threats were commonplace. In 2006 Mexico surpassed Colombia as Latin America’s deadliest country for journalists (second only to Iraq), while Cuba has the world’s second-biggest prison for journalists.3

The level of openness of the media environment in Latin America is reputed to be subject to considerable self-censorship, particularly in Brazil, Colombia, Mexico, and Venezuela.4 Because of threats from local drug cartels or other gangs and individuals, many journalists practice self-censorship,5 including many in Colombia who avoid reporting on corruption, drug trafficking, or violence by armed groups because of such threats. Drug gangs waging a campaign of intimidation in Mexico not only tack notes to corpses and publish newspaper ads, but have also posted a video on YouTube where an alleged Zeta member (a group of cartel operatives) is tortured and decapitated.6 The few Cubans who gain access are limited by extensive monitoring and excessive penalties for political dissent expressed on the Internet, leading to a climate of self-censorship.

Internet in Latin America

Most countries in Latin America recognize the value of the Internet as an integral part of modern life. For example, numerous groups in Chile have recommended legislation to make access to the Internet a right, alongside access to clean water and shelter.7 However, the high value placed on Internet access has not in fact resulted in uniformly unfettered access. Although the Cuban government declared Internet access a “fundamental right” of the Cuban people,8 all Internet access there requires government authorization and oversight by the Cuban Ministry of Computer Technology and Communications.9

While estimates vary, the regional penetration rate is approximately 12 percent.10 More than half of the Internet users in Latin America are in Brazil and Mexico, though Jamaica, Chile, and Argentina have the highest penetration rates (at 44 percent, 34 percent, and 26 percent, respectively).11 Penetration rates in Argentina, Brazil, and Mexico are clustered close to 17 percent. In Bolivia, only one person in twenty is connected, and in Cuba this is less than one person in fifty.12 In 2004 Cuba had the lowest penetration rate in the region, trailing even Nicaragua (2.3 percent) and Paraguay (2.5 percent).13 Brazil, Mexico, Argentina, and Chile are also the leaders in high-speed Internet access, accounting for 90 percent of all broadband subscribers in 2006 and forming the top four markets for ADSL in the region.14 Despite the region’s low Internet penetration, fixed line and mobile phone subscription continues to grow at an annual rate of 50 percent.15

In countries such as Argentina, Chile, and Colombia the process of deregulation has led to a surge in more affordable and increasingly popular services such as Voice-over Internet Protocol (VoIP). Nominally the Cuban Internet service provider (ISP) market was fully competitive by 2000,16 in contrast to the monopolies in the various telephone, data, and television markets.17 However, all ISPs remain under government control and oversight; of the ISPs, only CENIAI provides personal internet access to Cuban citizens.18

Physical, legal, and economic limits on access to the Internet can constitute the most significant form of governmental control. Not only does the Cuban government strongly restrict private ownership of computer hardware,19 but also many public access points to Cuban intranets.20 In addition to the state prohibition of private computer sales, the Cuban police have also confiscated existing private computers and modems.21 The lack of private resources forces most Cubans to use public access points, which may allow access only to national e-mail and Cuban intranets.22 In Venezuela, Internet use is concentrated among young, male, educated city residents, with more than 60 percent of users coming from Caracas and all but the lowest income sector represented.23 Despite programs promoting Internet use by poor and rural Venezuelans, access for 60 percent of the population remains essentially nonexistent, and basic public education does not incorporate Internet technologies.24

At the same time, many governments in Latin America have committed to investing in expanded public access points and creating community telecenters such as cybercafés, where most users in the region access the Internet.25 In countries such as Honduras, cybercafés and these public access centers have become the local “telephone booth,” providing cheaper and more readily available Internet telephony.26 Though VoIP is available throughout the region, the regulatory landscape is still evolving, with sometimes contradictory reports on the legality of the service. VoIP is illegal in Cuba, but it is offered in countries with more stringent restrictions such as Guyana, Paraguay, and Costa Rica. Licensing requirements also legally restrict which operators can offer VoIP in Bolivia,27 Mexico, Venezuela, Colombia, Ecuador, Peru, and the Dominican Republic, though these restrictions are not enforced in many countries.28 In Chile and Brazil, the VoIP markets operate as if unregulated, but they are also evolving.29 In October 2006, even after deregulation, Telefónica Chile was fined nearly USD1 million for antitrust violations in blocking VoIP calls.30

As with the immense popularity of social networking sites such as Orkut in Brazil, which in 2006 was host to eleven million of Orkut's more than fifteen million users,31 the introduction of Internet services in Latin America has offered citizens opportunities to affect their social and political landscape. For example, bloggers in Mexico inaugurated their coverage of elections in the 2006 presidential campaigns.

Social content

The protection of children is a widely used rationale for filtering the Internet in Latin America. Despite the generally sparse extent of Internet regulation, countries throughout the region have focused on making the access and provision of pornographic material illegal online.

The bulk of the regulatory responsibility for filtering has been delegated to ISPs and public Internet access points such as cybercafés. For example, in 2006 the Venezuelan National Assembly passed a law to safeguard children from illicit content on the Internet, requiring ISPs both to limit content on their servers and to provide free filtering software to users in order to promote self-regulation.32 Examples of similar mechanisms include the 2002 Argentinean Internet Providers Law, which requires all ISPs to provide filtering software to users upon request,33 and a Colombian law demanding that ISPs monitor their content and report any illegal activity to the government.34 Colombia’s “Internet Sano” (healthy Internet) campaign calls for public education on “decent” ways of using the Internet as well as penalties for improper usage.35 In Peru it is mandatory for all such businesses to have filters installed in all computers designated for use by children.36 In Buenos Aires businesses offering Internet services that fail to install pornography filters on computers for use by children are subject to fines or temporary closures.37 Definitions of pornographic content are not always clear; Argentinean ISPs expressed concern that the instruction to filter “specific sites” was not adequately concise.38

Regulation of child pornography is steadily being expanded to include the Internet. In 2003 Brazil made child pornography illegal in any medium, explicitly including the Internet.39 Similar laws have been approved and implemented in Buenos Aires40 and Colombia.41 In Argentina’s proposed draft law on cybercrimes, child pornography is criminalized in “any medium of communication.”42

In addition to efforts at protecting children from explicit online content, other social content deemed offensive has occasionally come under fire.

Since the 1997 presidential declaration regarding “Free Speech on the Internet” that guaranteed Internet content the same constitutional protections for freedom of expression, Argentina has become a haven for neo-Nazi and race-hate groups around the region.43 In 2000 an Argentine appellate court affirmed a lower court’s dismissal of a claim that a Yahoo! site selling Nazi memorabilia violated Argentina’s anti-discrimination law (no. 23.592),44 holding that the equivalent restrictions of non-Internet speech would be unacceptable.

A recent case involving a social networking site illustrates some of the tensions between law enforcement needs and individuals’ right to privacy. In 2005 the Brazilian government took issue with Google’s social networking site, Orkut, when it became evident that it was being used for the sale of illegal drugs45 and child pornography, and had also become a domain for racist speech.46 The National Reporting Center of Cyber Crimes, which operates in partnership with the Ministério Público Federal, brought civil and criminal court lawsuits against Google’s Brazilian unit alleging failure to stop the spread of child pornography and hate speech.47 In 2006 Google agreed to comply with the Brazilian government’s request that they track all users and hand over the identities of users involved in these and other illegal activities.48

Defamation

The bulk of filtering in the Latin American region arises from court order. Conceptually, defamation covers a broad swath of unlawful acts in the region, primarily distinguished by the status of the person(s) harmed. In addition to defamation of individuals and antidiscrimination laws banning hate speech (group defamation), the majority of countries in Latin America have laws against desacato (disrespect or insult against public figures).49

Hate speech is regulated by some Latin American countries. In Brazil, the Criminal Code includes the crime of prejudice on the basis of race, color, religion, ethnic background, or national origin.50 The Brazilian Constitution, where racism is a crime not entitled to bail or statutes of limitation, has been used as the legal basis for search engine takedowns.51 In Argentina’s antidiscrimination law a crime is aggravated if racism is involved.52

In Argentina the defendant in the case Jujuy.com v. Omar Lozano was found liable for publishing slanderous content on his Web site after imputing adulterous conduct to a couple and failing to remove the content promptly. An injunction was imposed and damages were set at USD40,000.53 In a defamation of the “public image” case, the Brazilian court ordered the seven largest ISPs to block the Web site of a travel company based in the United States called “Tours Gone Wild,” (which reportedly sells and promotes sexual tourism packages to Rio). A Brazilian citizen had sued the Web site claiming photos were used on the Web site without permission.54 These judicial strategies may be indicative of future legislative moves made by the Brazilian government or other Latin American countries.

Although many countries have declared desacato laws unconstitutional,55 others—such as Panama56 and Venezuela57—are increasing restrictions on press freedom through such defamation laws. A 1999 desacato case in Costa Rica, where the journalist Mauricio Herrera Ulloa published accounts of the illegal acts of a public official, led to a judicial order to remove the name of the plaintiff from a newspaper Web site and to criminal convictions against Herrera Ulloa.58 However, the Inter American Court of Human Rights ruled that the conviction of Herrera Ulloa was a violation of his right to freedom of expression in the American Convention on Human Rights.59

In 2006 a Brazil court extended the 1967 Press Law60 to apply to Internet publications and fined a magazine, Veja Online, for defaming an ex-official in an article published online.61 The 2006 elections in Brazil provide a prominent example of desacato being brought into cyberspace, as well as the self-regulating stance taken by Brazilian ISPs. Senate candidate (and former President) Jose Sarney sued and won his case in the electoral court (which exists in part to “ensure that all candidates are fairly represented in the media,” though this court does “not generally cover defamation”)62 against a blogger who posted a cartoon of Sarney. Even after Alcilene Cavalcante deleted the cartoon as requested by the court, the ISP that hosted her blog (uol.com.br) proceeded to remove it without a court directive to do so. Sarney also filed to sue Alcilene’s sister Alcineia, who divulged details of the case on her blog. Again, without any court order, the ISP also removed Alcieia’s blog.63

Privacy and confidentiality

The judiciary also continues to play an active role in parsing the scope of privacy rights and confidentiality of data by experimenting with filtering orders. For example, in 2005 a court in Brazil ordered the daily newspaper Folha Online to remove from its Web site 165 URLs that detailed how Brasil Telecom allegedly used a Canadian consulting company to spy on its competitor Telecom Italia. On trial for the abuses alleged in these articles, Brasil Telecom requested that the judge issue a writ against Folha Online. The articles were published in print a year before the takedown write was issued, but the Web site was held to have violated the confidentiality of a judicial investigation.64 However, after protests, the judge reduced the number of pages to be blocked the next day.65

The Brazilian judiciary has also engaged with Google over the privacy sexual content that appeared on its video-sharing site YouTube.com in 2005. After a Brazilian television personality and her boyfriend sued YouTube for posting a sexually explicit video they claimed violated their right to privacy, Google complied by taking down the video, but it continued to be put back online by users. In January 2007 a São Paulo judge ordered telecommunications companies to block YouTube until the video was removed from the Web site and several ISPs, including Brasil Telecom, announced their intention to comply with the court ruling.66 Days later, the judge revoked his order and lifted the ban on the entire site.67

Security and political speech

With the exception of Cuba, there has been no reported technical filtering of content relating to security or political speech. Since it established the first full-time Internet connection in 1996,68 the Cuban government has combined access restrictions with severe penalties for illegal uses—including violations such as counter-revolutionary writing69—to deter free expression online.70 Regulation outlaws use “in violation of Cuban society’s moral principles or the country’s laws,” as well as e-mail messages that “jeopardize national security.”71 Moreover, the government restricts Internet use by having all legal Cuban Internet traffic pass through state-run ISPs (which use software to detect politically dissident information) and requires ID and registration for Internet use.72 This filtering includes monitoring e-mail messages prior to their being sent or received.73

Copyright

Many countries in Latin America, including Argentina and Brazil, have attempted to shore up intellectual property rights (IPR) protections by drafting and updating laws and ratifying international agreements such as the WIPO Copyright Treaty. Other countries, such as Chile and Mexico, have been criticized for having antiquated or weak laws that fail to meet international threshold requirements set by the UN and the World Intellectual Property Organization (WIPO).74 Uneven regulation of IPR is often coupled with a level of enforcement characterized as insufficient or anemic.75 For example, one of the objectives of the U.S. government in signing a free trade agreement with Chile was to improve protection U.S. copyright and trademark holders against piracy.76 As a proposed replacement for the North American Free Trade Agreement, the Free Trade Agreements of the Americas (FTAA) would include every country in Central America, South America, and the Caribbean (except Cuba). Although the United States was pushing for greater intellectual property protections, negotiations have been stalled since 2005.77

At the same time, the drive for enhanced IPR regimes, often led by the United States, has been controversial for a range of reasons, from lack of public support to the nature of the civil law system in many countries.78 For example, these international “individualistic” and “exclusionary” frameworks have been criticized as alien to many of the unique cultures of the region, indigenous rights, and traditions of collective rights. Panama’s IP laws recognize indigenous folklore and knowledge, and in 2000 it became the first country in the world to conceive of a sui generis IP system for the protection of indigenous crafts and knowledge.79

Other factors

In Latin America economic factors can have a significant impact on citizens’ access. In Cuba a combination of Cuban government policy, the U.S. trade embargo, and personal economic limitations prevents the vast majority of Cuban citizens from accessing the Internet. Access is likely restricted even further by the U.S. government’s sponsorship of reverse filtering, which encourages Web sites to prevent access from Cuba and other countries.

In Venezuela, President Hugo Chávez’s announcement on January 8, 2007, of re-nationalization plans for the telecom CANTV80 has heightened fears of expanded regulation and content restrictions as the government assumes greater control of Internet media. A recent article notes that CANTV has held 83 percent of the Internet market since the market’s privatization,81 so any changes in filtering through a nationalized CANTV will have a strong impact on Internet users.

Conclusion

Governments and especially courts in Latin America are engaged in an adaptive process of regulating online activity and content. Only Cuba employs systematic technical filtering, but in many countries the responsibility for filtering content unsuitable for minors has been delegated to ISPs. In addition, a wide range of actors—including government officials, telecom companies, individuals, and judges—have attempted to induce or enforce filtering on a case-by-case basis, often with negotiated and shifting results. The ad hoc approaches that have been applied thus far suggest that efforts to control Internet content in Latin America are still unsettled and contested; this promises to be an area of considerable change in the coming years.

Authors: Jehae Kim, Patricio Rojas, Joanna Huey, Kathleen Connors, Stephanie Wang

NOTES

1. Article 13, American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted at http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm.
2. Committee to Protect Journalists, Americas, http://www.cpj.org/regions_06/americas_06/americas_06.html and http://www.cpj.org/regions_07/americas_07/americas_07.html ; World Association of Newspapers, “Media employees killed in 2006,” http://www.wan-press.org/rubrique.php3?id_rubrique=863 ; and World Association of Newspapers, “Killing the messenger: Report of the global inquiry by the International News Safety Institute into the protection of journalists,” March 2007, http://www.wan-press.org/IMG/pdf/REPORT_FINAL.pdf.
3. World Association of Newspapers, “Press freedom, world review, November 2005–May 2006,” June 3, 2006, http://www.wan-press.org/print.php3?id_article=12552.
4. See http://www.cpj.org/attacks05/americas05/americas05.html.
5. Inter American Press Association, “IAPA conclusions on Press Freedom in the Americas,” March 19, 2007, http://www.sipiapa.org/espanol/pressreleases/chronologicaldetail.cfm?Pre....
6. Julie Watson, “Mexican drug gangs spread fear through Internet, newspaper ads, messages tacked to dead,” Associated Press, April 12, 2007.
7. See the Banda Ancha campaign of Atina Chile (http://www.atinachile.cl/taxonomy/term/150); the Metropolitan Technological University (http://www.utem.cl/cyt/derecho/gobierno.html); and the Center for Informational Rights of the University of Chile (http://www.cedi.uchile.cl/); as well as its book listing (http://www.cedi.uchile.cl/catalogo/derechoinformatico/index.html).
8. Patrick Symmes, “Che is dead,” Wired, February 1998, http://www.wired.com/wired/archive/6.02/cuba.html.
9. Reporters Without Borders, “Going online in Cuba: Internet under surveillance,” October 2006, http://www.rsf.org/IMG/pdf/rapport_gb_md_1.pdf.
10. World Bank Group, World Development Indicators Database, April 2006 (data are from 2005), Latin America & Caribbean Data Profile, http://devdata.worldbank.org/external/CPProfile.asp?PTYPE=CP&CCODE=LAC.
11. Paul Budde Communication Pty Ltd., Regional: Internet: The Americas – 2006, p. 27.
12. International Telecommunications Union, ITU ICT Eye, Cuba, at http://www.itu.int/ITU-D/icteye/DisplayCountry.aspx?countryId=63.
13. Paul Budde Communication Pty Ltd., Regional: Internet: The Americas – 2006, p. 27.
14. Paul Budde Communication Pty Ltd., Regional: Internet: The Americas – 2006, p. 28.
15. World Bank Group, World Development Indicators Database, April 2006 (data are from 2005), Latin America & Caribbean Data Profile, http://devdata.worldbank.org/external/CPProfile.asp?PTYPE=CP&CCODE=LAC.
16. International Telecommunication Union, Trends in Telecommunication Reform 2000–2001, p. 193, http://www.ituarabic.org/arabbook/2004/GTTR-2000.pdf ; see also http://www.cuba.cu/sitios.php?idrcategoria=8&base=0 (listing Cuban internet providers).
17. International Telecommunication Union, Trends in Telecommunication Reform 2000–2001, p. 193, http://www.ituarabic.org/arabbook/2004/GTTR-2000.pdf.
18. Dana Bomkamp and Maria Soler, Information Technology in Cuba, http://www.american.edu/carmel/ms4917a/Internet%20Diffusion.htm.
19. Patrick Symmes, “Che is dead,” Wired, February 1998, http://www.wired.com/wired/archive/6.02/cuba.html.
20. Reporters Without Borders, “Going online in Cuba: Internet under surveillance,” October 2006, http://www.rsf.org/IMG/pdf/rapport_gb_md_1.pdf.
21. Patrick Symmes, “Che is dead,” Wired, February 1998, http://www.wired.com/wired/archive/6.02/cuba.htm.
22. Reporters Without Borders, Mexico: Annual Report 2007, http://www.rsf.org/article.php3?id_article=20539 ; Reporters Without Borders, Cuba:Annual Report 2007, http://www.rsf.org/article.php3?id_article=20534.
23. Global Competitiveness Report 2001–2002, Harvard Center for International Development, http://www.cid.harvard.edu/cr/profiles/Venezuela.pdf.
24. Global Competitiveness Report 2001–2002, Harvard Center for International Development, http://www.cid.harvard.edu/cr/profiles/Venezuela.pdf.
25. Paul Budde Communication Pty Ltd., Regional: Internet: The Americas – 2006, p. 27.
26. Paul Budde Communication Pty Ltd., Regional: Infrastructure: VoIP NGNs in the Americas – 2005, December 31, 2006, p. 36.
27. In Bolivia, however, there is virtually no enforcement of this law. There is private use of VoIP, and most Internet cafés provide a VoIP service. E-mail to ONI April 2, 2007.
28. International Telecommunication Union, The Future of Voice: Ruling Voice over IP: Challenges for Regulators in Latin America, June 16, 2006, http://www.itu.int/osg/spu/ni/voice/documents/Background/VoIP_LatinAmeri....
29. Paul Budde Communication Pty Ltd., Regional: Infrastructure: VoIP NGNs in the Americas – 2005, December 31, 2006, pp. 32–3.
30. International Telecommunication Union, REGULATORY Newslog, VoIP Regulation due early 2007, January 4, 2007, http://www.itu.int/ituweblogs/treg/default,date,2007-01-09.aspx.
31. The New York Times, “A website born in U.S. finds fans in Brazil,” April 10, 2006, http://www.nytimes.com/2006/04/10/technology/10orkut.html?ex=1302321600&....
32. Law no. 38.529, Asamblea Nacional de la Republica Bolivariana de Venezeula, “Ley de Protección de Niños, Niñas y Adolescentes en salas de uso de Internet, Vídeo Juegos y otros Multimedia” (in Spanish), November 5, 2006, http://www.asambleanacional.gov.ve/ns2/leyes.asp?id=741&dis=1.
33. Law no. 25.690. See InfoLeg, Centro de documentacion e informacion del Ministerio de Economia, “Establécese que las empresas ISP (Internet Service Provider) tendrán la obligación de ofrecer software de protección que impida al acceso a sitios específicos” (in Spanish), November 28, 2002, http://infoleg.mecon.gov.ar/infolegInternet/anexos/80000-84999/81031/nor....
34. Privacy International, Silenced: Latin America Profile, January 1, 2003, http://www.privacyinternational.org/article.shtml?cmd%5B347%5D=x-347-103....
35. Ministerio de Comunicaciones, “Que Es Internet Sano: Idea de la Campana” (in Spanish), http://www.internetsano.gov.co/que_es.htm.
36. El Congreso De La Republica, Ha dado la Ley siguiente: Ley que Establece la Obligacion de Filtros Antipornograficos en Instituciones Educativ as y Bibliotecas que Bridnen Acceso a Internet (in Spanish), http://www2.congreso.gob.pe/Sicr/RelatAgenda/proapro.nsf/ProyectosAprobadosPortal/E72D2E5A68F3267E0525715400031C02/$FILE/12756Filtrosantipornograficos.pdf.
37. Law no. 863, La Legislatura de la Ciudad Autonoma de Buenos Aires, “Sanciona con fuerza de Ley,” (in Spanish) August 15, 2002, http://www.cedom.gov.ar/es/legislacion/normas/leyes/html/ley863.html.
38. The “protection software that impedes access to specific sites” is for the protection of children, but the vague terms of the law make companies confused about the requirements for the filtering software. Lanacion, “Las proveedoras denuncian censura en Internet,” (in Spanish), January 12, 2003, http://www.lanacion.com.ar/Archivo/nota.asp?nota_id=465416.
39. Privacy International, Silenced: Latin America Profile, January 21, 2003, http://www.privacyinternational.org/article.shtml?cmd%5B347%5D=x-347-103....
40. Law no. 863, La Legislatura de la Ciudad Autonoma de Buenos Aires, “Sanciona con fuerza de Ley,” (in Spanish) August 15, 2002, http://www.cedom.gov.ar/es/legislacion/normas/leyes/html/ley863.html.
41. Ministerio de Comunicaciones, Law no. 679 of 2001, http://www.internetsano.gov.co/ley679.htm.
42. Draft Law on Cybercrimes, Article 15, Argentina Association for Internet Security, http://www.asira.org.ar/07bas_del_proycomision.htm.
43. Colin Barraclough, “Race-hate groups find virtual haven in Argentina,” August 23, 2002, http://www.csmonitor.com/2002/0823/p07s02-woam.htm ; Decreto 1279/97, Declárase comprendido en la garantía constitucional que ampara la libertad de expresión al servicio de INTERNET (in Spanish), http://mepriv.mecon.gov.ar/Normas/1279-97.htm.
44. Privacy International, Silenced: Argentina, January 21, 2003, http://www.privacyinternational.org/article.shtml?cmd%5B347%5D=x-347-103... ; Legal mania, “La Libertad de Expresion y la Difusion de sumbolos Nazis” (in Spanish), June 12, 2000, http://www.legalmania.com/actualidad_general/simbolos_nazis.htm.
45. BBC News, “Google site ‘used by drug gang,’” July 22, 2005, http://news.bbc.co.uk/2/hi/technology/4706489.stm.
46. The New York Times, “A website born in U.S. finds fans in Brazil,” April 10, 2006, http://www.nytimes.com/2006/04/10/technology/10orkut.html?ex=1302321600&....
47. SaferNet Brasil, “Crimes on Orkut: Understand the chronological evolution of the case that defies the institutions of the democratic judicial state in Brazil,” September 14, 2006, http://www.denunciar.org.br/twiki/bin/view/SaferNet/CrimesOrkutEn.
48. Ellen Nakashima, “Google to give data to Brazilian court,” Washington Post, September 2, 2006; Richard Waters, “Brazil lawyers lean on Google,” Financial Times, August 2, 2006, http://www.ft.com/cms/s/d2420942-32f9-11db-87ac-0000779e2340.html.
49. Organization of American States, 6, Chapter V, “ ‘Desacato’ Laws and Criminal Defamation,” 2004, http://www.cidh.org/Relatoria/showarticle.asp?artID=310&lID=1.
50. Law no. 7716, 1997, http://www.cejamericas.org/doc/proyectos/raz-sistema-jud-racismo2.pdf.
51. See Chilling Effects database, http://chillingeffects.org/international/notice.cgi?NoticeID=6673.
52. Law no. 23.592.
53. The defendant was found liable under Article 1113, 2, of the Civil Code. Alfredo M. O'Farrell, lawyer at Marval, O’Farrell & Mairal, e-mail to ONI contact, November 14, 2006.
54. Opovo, “TJ manda Bloquear site por favorecer turismo sexual,” February 7, 2007, http://www.opovo.com.br/opovo/brasil/668706.html.
55. Argentina, Costa Rica, Paraguay, Preu, Guatemala, Honduras, Chile, and Mexico have declared desacato laws to be unconstitutional. See Organization of American States, “The office of the Special Rapparteur for Freedom of Expression of the IACHR Expresses its Satisfaction with Decisions in Guatemala and Honduras Declaring Desacato Laws Unconstitutional,” July 5, 2005, http://www.oas.org/OASpage/press_releases/press_release.asp?sCodigo=PREN... ; Committee to Protect Journalists, “Attacks on the press in 2005, Americas,” 2005, http://www.cpj.org/attacks05/americas05/snaps_americas_05.html ; and International Freedom of Expression Exchange, “Venezuela: Government Tightens ‘desacato’ laws,” 2005, http://www.ifex.org/en/content/view/full/65788/.
56. This new law “makes it a crime to publish information received … concerning a third party … without express permission of that third party, if the individual concerned claims that the publication would cause him or her prejudice.” Panama: Proposed Criminal Code Severely Restricts Freedom of Expression and Information, Article 19, February 22, 2007, http://www.article19.org/pdfs/press/panama-criminal-code.pdf ; and International Freedom of Expression Exchange, “President signs into law penal code amendments that threaten press freedom,” March 27, 2007, http://www.ifex.org/en/content/view/full/82026. Though Panama had made moves in 2005 to improve press freedoms, desacato is still legally valid. Committee to Protect Journalists, “Attacks on the press in 2005: Americas,” http://www.cpj.org/attacks05/americas05/panama_05.html.
57. Human Rights Watch, “Venezuela: Curbs on free expression tightened,” March 24, 2005, http://hrw.org/english/docs/2005/03/24/venezu10368.htm.
58. For more details on the case, see Article 19, Global Campaign for Free Expression, amicus curiae brief on Inter-American Court of Human Rights Case No. 12. 367 “La Nacion,” Defamation Law as Restriction on Freedom of Expression, http://www.article19.org/pdfs/cases/costa-rica-written-comments-in-ulloa....
59. Inter-American Court of Human Rights, Case of Herrera-Ulloa v. Costa Rica Judgment of July 2, 2004, http://www.corteidh.or.cr/docs/casos/articulos/seriec_107_ing.pdf.
60. See Reporters Without Borders, Brazil: Annual Report 2006, http://www.rsf.org/article.php3?id_article=17415, stating that the 1967 press law has never been repealed. In this law, “insults” and “libel” are crimes whose sentences can be increased if a public official has been targeted. See also Press Law no. 5.250/67, Article 75, http://www.sipiapa.com/projects/laws-bra7.cfm.
61. Knight Center for Journalism in the Americas, University of Texas at Austin, http://knightcenter.utexas.edu/newsmonitor_article.php?page=6913 ; and Consultor Jurídico, “Comunicação na rede Para Justiça, Internet está sujeita à Lei de Imprensa,” (in Portuguese) November 22, 2006, http://conjur.estadao.com.br/static/text/50369,1.
62. Reporters Without Borders, “Electoral court censors blog that posted cartoon of senatorial candidate,” September 8, 2006, at http://www.rsf.org/article.php3?id_article=18801.
63. Global Voices Online, “Election and censorship dialectics in the Brazilian blogosphere,” September 1, 2006, http://www.globalvoicesonline.org/2006/09/01/election-and-censorship-dia....
64. Reporters Without Borders, “Judge cuts back censorship order, allowing websites to reinstate banned pages,” December 16, 2005, http://www.rsf.org/article.php3?id_article=15908.
65. Ibid.
66. Reuters, “Phone companies in Brazil blocking YouTube,” January 9, 2007, http://www.reuters.com/article/oddlyEnoughNews/idUSN0841810920070109.
67. Reporters Without Borders, “Judge lifts blocking order on YouTube,” January 9, 2007, http://www.rsf.org/article.php3?id_article=20342.
68. Patrick Symmes, “Che is dead,” Wired, February 1998, http://www.wired.com/wired/archive/6.02/cuba.html.
69. The government “concedes that some sites are blocked, but say these are ‘terrorist, xenophobic, or pornographic.’ Websites based in the US which publish articles by dissidents from within Cuba are generally inaccessible.” BBC News, “Web censorship: Correspondent reports: Cuba: Stephen Gibbs, Havana,” May 29, 2006, http://news.bbc.co.uk/2/hi/technology/5024874.stm.
70. Reporters Without Borders, “Going online in Cuba: Internet under surveillance,” October 2006, http://www.rsf.org/IMG/pdf/rapport_gb_md_1.pdf.
71. 1996 Decree-Law 209; see Reporters Without Borders, “Going online in Cuba: Internet under surveillance,” October 2006, http://www.rsf.org/IMG/pdf/rapport_gb_md_1.pdf.
72. Ibid.
73. Reporters Without Borders, “Going online in Cuba: Internet under surveillance,” October 2006, http://www.rsf.org/IMG/pdf/rapport_gb_md_1.pdf.
74. See R. Craig Woods, “Comment and Casenote: The United States-Chile free trade agreement: Will it stop intellectual property piracy or will American producers be forced to walk the plank?” Law and Business Review of the Americas, Spring 2004 (10): 425.
75. Marcos J. Basso and Adriana C.K. Vianna, “The Internet in Latin America: Barriers to intellectual property protection: Intellectual property rights and the digital era: Argentina and Brazil,” Sypmosium article, The University of Miami Inter-American Law Review, Spring 2003 (34): 277. See also James F. Smith, Katherine C. Pearson, and Michael L. Rustad, Book Review: “Why Mexico? Why Mexican Law? Why Now? 1A Review Essay of Mexican Law,” by Stephen Zamora, Jose Ramon Cossio, Leonel Pereznieto, Jose Roldan-Xopa, and David Lopez, Penn State International Law Review, Fall 2005 (24): 412.
76. See R. Craig Woods, “Comment and Casenote: The United States-Chile free trade agreement: Will it stop intellectual property piracy or will American producers be forced to walk the plank?” Law and Business Review of the Americas, Spring 2004 (10): 425.
77. Caribbean Media Corporation, “CARICOM still holding out FTAA hope,” December 8, 2006, reprinted by BBC Monitoring International Reports.
78. See Guillermo Cabanellas, The Internet in Latin America: Barriers to Intellectual Property Protection: Law of the Internet in Argentina,” Symposium article. The University of Miami Inter-American Law Review, Spring 2003 (34): 247. See also Irma De Obaldia, “Note: Western intellectual property and indigenous cultures: The case of the Panamanian indigenous intellectual property law,” Boston University International Law Journal, Fall 2005 (23): 337.
79. See Irma De Obaldia, “Note: Western intellectual property and indigenous cultures: The case of the Panamanian indigenous intellectual property law,” Boston University International Law Journal, Fall 2005 (23): 337.
80. http://www.cnn.com/2007/WORLD/americas/01/08/chavez.media.ap/index.html.
81. http://www.lared.com.ve/archivo/telco12-01-07.html.

Venezuela

miriam — Wed, 09 May 2007 19:12:21 -0400

Background

The government of Hugo Chávez is in the process of consolidating power after a number of electoral victories and a failed coup in 2002. This process has taken two forms: undermining judicial independence and wresting greater control over the media. Judges on the First and Second Administrative Courts—the courts with jurisdiction over complaints relating to the government’s administrative actions—are kept as provisional appointees. In 2005, six judges and their replacements were fired from the two courts for reportedly not passing performance tests.1 As a result, these judges continue to be unable to pass judgment without fear of government retribution. As to the media, the Chávez government has recently passed two laws meant to restrict freedom of the press and of expression: the Law of Social Responsibility in Radio and Television of 2004 and the Criminal Code Reform Law of 2005. The first law delineates the standards for what is acceptable to be aired on radio and television within the country. Stations are threatened with large fines and broadcasting license suspensions for broadcasts that “condone or incite” public disturbances or carry messages “contrary to the security of the nation.”2

In January 2006, a Venezuelan court accused ten media outlets of “obstruction of justice” and banned them from reporting on the investigation into the murder of Danilo Anderson, the lead prosecutor in the investigation of the failed 2002 coup. The state’s lead witness, a psychiatrist, was labeled an imposter by members of the media.3 The second law, the Criminal Code Reform Law, expanded sections of the criminal code relevant to “disrespect” of the government and increased their penalties. A television journalist critical of Chávez, José Ovidio Rodríguez Cuesta, was prosecuted in February 2006 under these newly expanded statutes. One judge rejected the case, but a Caracas court has since reopened it.4

Internet in Venezuela

Between 1998 and 2002, the number of Internet users in Venezuela grew from 207,000 to 1,585,000, but then decreased to 1,365,000 in 2003 for a current Internet penetration rate of 5.4 percent.5 The vast majority of personal computers are not connected to the Internet.6 The Venezuelan government estimates that 50.4 percent of the population have never used the Internet and would not be interested in doing so, while 28.9 percent are possible future Internet users, primarily young, educated, middle-class individuals.7 Though there are sixty licensed ISPs, CANTV Servicios and Telcel control over 90 percent of the Internet market.8

Internet use is strongly concentrated among young, educated city residents, with 76 percent of users younger than thirty-five,9 67 percent having schooling beyond high school,10 and more than 60 percent of users coming from Caracas.11 Approximately 26.0 percent of Internet users log on daily. These users tend to be upper-class individuals using home connections for educational or work research and downloading. Over half of the population connects between once and five times per week, using cybercafés for e-mailing and chatting. This group is generally male and represents all socioeconomic levels with the exception of the lowest income segment. A smaller portion of users, 16.9 percent, connect between once every other week and once per month. These light users come again from all economic strata except the lowest class, and they almost exclusively use cybercafés for job search purposes.12 Hotmail, Google, and Yahoo are by far the most popular sites, followed by news sites and other search engines.13

Despite programs promoting Internet use by poor and rural Venezuelans, access for this segment of the population, about 60 percent of the total, is essentially nonexistent, and basic public education does not incorporate Internet technologies.14

In 2000, Venezuela had approximately 240 dot-com businesses, mostly business-to-business rather than business-to-consumer.15 The government has been attempting to automate its processes and put its agencies and services online, assisted by a newly created agency for information technology,16 but these attempts have not been consistent or thorough.17

Legal and regulatory frameworks

Venezuelan President Chávez has decreed the promotion of Internet use as essential to development.18 Correspondingly, the government promotes use of information and communication technologies (ICT) through a regulatory framework designed to promote competition among ICT businesses, but no special programs encourage such businesses directly.19 Personal Internet use appears to be essentially unrestricted by current law and regulation. Despite an erroneous press release listing Venezuela among countries with Internet censorship,20 the U.S. State Department Report on Human Rights in Venezuela states that “there were no government restrictions on the Internet or academic freedom.”21 Individual reports of suspected filtering are not backed by substantial evidence.22

Fear of Internet regulation stems from broader Venezuelan law restricting freedom of press and speech. The Social Responsibility Law opens citizens to punishment for disrespecting authority and endangering children with improper content; these laws have led to censorship in the general news media.23 President Chávez’s announcement on January 8, 2007, of re-nationalization plans for CANTV has heightened fears of expanded regulation and content restrictions as the government assumes more control of Internet media.24 A recent article notes that CANTV has held 83 percent of the Internet market since the market’s privatization,25 so any changes in filtering through a nationalized CANTV will have a strong impact on Internet users.

ONI testing results

Tests of Internet censorship were carried in late 2006 on the two major ISPs in Venezuela. The testing covered a wide range of potentially sensitive content, including sites dedicated to political opposition, freedom of expression, and general anti-Chávez media, as well as sites centered on controversial social issues such as minority religions, indigenous peoples, gambling, and pornography. This assessment turned up no evidence of filtering.

Conclusion

Despite fears to the contrary, ONI results give no indication of Internet censorship. The nationalization of CANTV and past censorship of different media are causes for concern about future filtering. However, current evidence indicates that Venezuelan Internet access is restricted only by initial socioeconomic, cultural, and geographic barriers to entry and not by any subsequent restraints on content once users are online.

NOTES

1. Human Rights Watch, World Report 2007: Venezuela, http://hrw.org/englishwr2k7/docs/2007/01/11/venezu14888.htm.
2. Ibid.
3. Ibid; Reporters Without Borders, Venezuela: Annual Report 2007, http://www.rsf.org/article.php3?id_article=20544&Valider=OK.
4. Human Rights Watch, World Report 2007: Venezuela, http://hrw.org/englishwr2k7/docs/2007/01/11/venezu14888.htm.
5. Cámara Venezolana de Comercio Electronico – Tendencias Digitales, http://www.cnti.gob.ve/cnti_docmgr/sharedfiles/indicadores.penetracion.I....
6. TILAN at the University of Texas’s Latin American Network Information Center, http://lanic.utexas.edu/project/tilan/countries/ven/.
7. Cámara Venezolana de Comercio Electronico – Tendencias Digitales, http://www.cnti.gob.ve/cnti_docmgr/sharedfiles/indicadores.penetracion.I....
8. Global Competitiveness Report 2001–2002, Harvard Center for International Development, http://www.cid.harvard.edu/cr/profiles/Venezuela.pdf.
9. Cámara Venezolana de Comercio Electronico – Tendencias Digitales, http://www.cnti.gob.ve/cnti_docmgr/sharedfiles/indicadores.penetracion.I....
10. Cámara Venezolana de Comercio Electronico – Tendencias Digitales, http://www.cnti.gob.ve/cnti_docmgr/sharedfiles/indicadores.penetracion.I....
11. Global Competitiveness Report 2001–2002, Harvard Center for International Development, http://www.cid.harvard.edu/cr/profiles/Venezuela.pdf.
12. Cámara Venezolana de Comercio Electronico – Tendencias Digitales, http://www.cnti.gob.ve/cnti_docmgr/sharedfiles/indicadores.penetracion.I....
13. http://www.tendenciasdigitales.com/td/indicadores_uso.htm.
14. Global Competitiveness Report 2001–2002, Harvard Center for International Development, http://www.cid.harvard.edu/cr/profiles/Venezuela.pdf.
15. Ibid.
16. http://www.cnti.gob.ve/.
17. Global Competitiveness Report 2001–2002, Harvard Center for International Development, http://www.cid.harvard.edu/cr/profiles/Venezuela.pdf.
18. http://www.cnti.gob.ve/cnti_docmgr/sharedfiles/decreto825.pdf.
19. http://www.cnti.gob.ve/cnti_docmgr/sharedfiles/decreto825.pdf.
20. http://usinfo.state.gov/dhr/Archive/2006/May/23-489666.html.
21. http://www.state.gov/g/drl/rls/hrrpt/2005/61745.htm.
22. See http://www.vcrisis.com/?content=letters/200504261545 for the only example found in preliminary research.
23. See http://hrw.org/english/docs/2005/03/24/venezu10368.htm, http://www.cidh.org/annualrep/2005eng/chap.4d.htm, and http://sipiapa.com/ (search country listings for Venezuela).
24. http://www.cnn.com/2007/WORLD/americas/01/08/chavez.media.ap/index.html.
25. http://www.lared.com.ve/archivo/telco12-01-07.html.