A study led by Héctor Huici and Roberto H. Iglesias suggests that preserving freedom of expression and avoiding any type of censorship, especially in the field of politics and ideas, should be the argument against Internet blocks in Latin American and the Caribbean.
Líderes is a LACNIC initiative created to provide funding and mentoring to research projects related to Internet Governance.*
Blocked. It is increasingly common for individuals and governments to attempt to block access to online content they consider illegal by using technical means, said Iglesias.
Both researchers studied cases of website blocking in Uruguay, Argentina, and Venezuela. Based on the scenarios they analyzed, the rationale behind these blocks in Argentina is essentially the protection of third-party rights. Blocks are decided by the courts, except in cases of “manifest illegality” (material involving child sexual abuse, advocating in favor of genocide, etc.) that may result in intermediary liability if the content is not removed or blocked by the site itself or at the request of the interested party or even of a third party.
In Uruguay, URSEC, the regulatory authority, has the power to administratively enforce Internet blocks, yet it has only used this power in cases of infringement of the television rights of football matches. The procedure is subject to subsequent judicial review, but even so it has been the target of criticism by the Internet community, who believe that this guarantee is not sufficient and that this methodology might be extended to other types of content.
According to Iglesias, Venezuela had the largest number of persistent blocks, which always targeted news and political content, and almost always affected the right to freedom of expression and information. The study showed that, in Venezuela, blocks are implemented through administrative orders, often without a clear or identifiable legal basis.
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Technical complexity. The authors highlighted that blocks often appear to be ineffective from a technical point of view. This is due to how easily they can be circumvented by the authors of the blocked content (by changing their location, IP address, format, etc.) as well as by the users who wish to access the content (by changing the configuration of their devices, using circumvention tools, anonymizers, etc.).
Meanwhile, from the perspective of freedom of expression, Internet blocks are often considered a violation of the Universal Declaration of Human Rights (1948) or the Pact of San José de Costa Rica (1969). However, both declarations and other international agreements, depending on the case, prohibit advocating for genocide or war, inciting to violence, and child pornography, and they enshrine the right to private life as well as to “honor and reputation.”
Assuming that blocking is the last resort to enforce these principles, it is important to stress the idea that what is illegal offline must also be illegal online. Despite this, Iglesias noted that it is not clear that what is considered illegal in the real world is illegal in the virtual world.
Technical complexity. The authors highlighted that blocks often appear to be ineffective from a technical point of view. This is due to how easily they can be circumvented by the authors of the blocked content (by changing their location, IP address, format, etc.) as well as by the users who wish to access the content (by changing the configuration of their devices, using circumvention tools, anonymizers, etc.).
Meanwhile, from the perspective of freedom of expression, Internet blocks are often considered a violation of the Universal Declaration of Human Rights (1948) or the Pact of San José de Costa Rica (1969). However, both declarations and other international agreements, depending on the case, prohibit advocating for genocide or war, inciting to violence, and child pornography, and they enshrine the right to private life as well as to “honor and reputation.”
Assuming that blocking is the last resort to enforce these principles, it is important to stress the idea that what is illegal offline must also be illegal online. Despite this, Iglesias noted that it is not clear that what is considered illegal in the real world is illegal in the virtual world.
To conclude, the authors shared a series of legal and technical recommendations in case of proceeding with the blocks.
Legal
• It is important to maintain the non-responsibility of intermediaries (except in case of willful or negligent actions). This will preserve an open and integrated Internet.
• Violations of intellectual property rights have originated a large part of the jurisprudence on Internet blocks, as well as novel solutions such as “dynamic” precautionary measures.
• Judicial intervention appears to be a guarantee of due process. This is preferable to a simple administrative order.
• Equally agile procedures for those who may feel their rights affected are considered necessary.
• “Dynamic” precautionary measures should be supervised by the courts at all times.
• The party requesting the block should be held responsible for any harmful consequences that their actions may cause in case of errors.
• The blocking order —where appropriate and with precautions to ensure due process— should be addressed to all ISPs in the corresponding jurisdiction.
• ISPs should have the power not to implement blocks which, due to errors, may cause legal content to be blocked. ISPs should not be held liable if they act in good faith and based on reasonable evidence, and if their actions are immediately notified to whoever ordered and requested the block, including the reasons for the action.
• An easily accessible public registry may help solve the issues by alerting the ISPs and platforms who hold the intellectual property rights.
• Any proposal to implement a block based on open figures such as “facts that may cause public unrest” should be rejected.Authoritarian governments rely on this type of descriptions to block Internet content that is contrary to their policies, thus affecting freedom of expression.
Technical
• In no case should a block proceed if it places Internet stability at risk.
• An option would be to voluntarily promote or legally establish that websites operating in one jurisdiction but not authorized to operate (or subject to restrictions) in others must include a geolocation mechanism, from gambling websites to sites that offer audiovisual content with rights that are limited to certain countries or regions.
• Internet blocks must be implemented with the greatest precision and minimized as much as possible, both in geographical terms (limited to the most local level possible) as well as in terms of the networks they affect (avoid applying them to clouds, entire domains, general platforms, etc.).
• Internet blocks must always be temporary and removed as soon as the cause that motivated them disappears.
• Intentional Internet “blackouts” are always unacceptable. This means completely depriving the entire population of a country, region or city of a service that is essential in today’s society, as well as generally and indiscriminately affecting the right to freedom of expression and information.
We invite you to click here to read the complete study.
*The initiatives are selected by a committee that is independent of LACNIC. The conclusions of each study reflect the views of their authors, not necessarily those of LACNIC.
