Publicado originalmente en El Universal, Mexico el 22 de enero de 2024 https://www.eluniversal.com.mx/opinion/eduardo-bertoni/tecnologias-y-derechos-humanos/

Tecnologías y Derechos Humanos

Hace un tiempo relataba ante colegas que las razones personales que causaban mi atracción por el estudio de ciertas tecnologías y cómo ellas podían impactar en nuestra vida cotidiana tal vez se debía por mi fascinación en una serie infantil de finales de los años 60 que conocimos como “Joe 90”. La serie mostraba una enorme máquina que permitía a Joe, un niño, incorporar rápidamente los conocimientos que necesitaba para realizar distintas misiones como espía. Si hacía falta que manejara un jet, en pocos minutos y conectado con electrodos en su cabeza, obtenía los conocimientos que se le transferían de un piloto avezado. Esa serie me impactó porque quería esa máquina para saberlo todo y rápidamente. Esa posibilidad tecnológica empieza a dejar de ser un cuento de ciencia ficción. Sin embargo, ello no significa derechamente que nos encontramos desprotegidos jurídicamente a cualquier abuso que las tecnologías puedan causarnos. En otras palabras, no hace falta “crear” nuevos derechos sino conocer y aplicar los que ya tenemos.

Una reciente sentencia de la Corte Suprema de Chile (Girardi v/s Emotiv), demuestra que estamos frente a una realidad. Guido Girardi Lavín, un exsenador Chileno, interpuso una acción constitucional de protección de derechos fundamentales en contra de la empresa Emotiv Inc., en razón de la venta y comercialización en Chile del dispositivo “Insight”. En la sentencia se puede leer que Insight consiste en un dispositivo inalámbrico que funciona como una vincha con sensores que recaban información sobre la actividad eléctrica del cerebro, obteniendo datos sobre gestos, movimientos, preferencias, tiempos de reacción y actividad cognitiva de quien lo usa.

Es justamente lo que decide la Corte en ese caso lo que habilita a mi segunda afirmación inicial en cuanto a que sí tenemos derechos que nos protegen del uso de estas tecnologías.

Además de la cita al derecho chileno, la decisión haciendo lugar al pedido del señor Girardi, se funda afirmando específicamente que “existen diversos instrumentos internacionales que reconocen la relación entre ciencia y Derechos Humanos.” Y entre esos instrumentos señala el Pacto Internacional de Derechos Económicos, Sociales y Culturales, la Declaración sobre la Ciencia y el Uso del Saber Científico y Programa en Pro de la Ciencia de la UNESCO, la Declaración Universal de Derechos Humanos, la Declaración Universal sobre el Genoma Humano y los Derechos Humanos, y la Declaración Universal sobre Bioética y Derechos Humanos también de la UNESCO.

Citados esos documentos, parecería errado afirmar que necesitamos crear nuevos derechos como impulsan algunos sectores bajo el nombre de “neuroderechos”, insinuando que incluso habría que ampliar el catálogo de derechos humanos porque no estarían protegidos. Aún más: pregonar que nuestros derechos humanos no están protegidos frente a las tecnologías que intervienen sobre nosotros como seres humanos, puede ser la razón de lo que está impulsando a un patrón de reformas legislativas, como en Mexico, Chile o Brasil, que dudosamente sean necesarias y que pueden contribuir a desdibujar y deslegitimar la protección que brindan los actuales estándares de derechos humanos.

Es posible sostener, en cambio, que los derechos humanos que impactan las tecnologías que trabajan sobre la actividad neuronal pueden estar vinculados con, por ejemplo, el derecho a la privacidad de la información producida por la actividad cerebral, a la cual es posible acceder a través de ciertas tecnologías. También se relacionan con el derecho a la identidad personal y la autodeterminación dado que la tecnología puede abrir la posibilidad para anular o alterar la identidad de las personas. Asimismo, se vinculan con el derecho a la igualdad frente al aumento de capacidad cerebral dado que algunos podrán acceder a estas tecnologías y otros no. Y, finalmente, y con el seguro riesgo de dejar otros derechos humanos involucrados, se vinculan también con el derecho a formar y mantener una opinión propia. Sobre esto último, es importante recordar lo que establece el art. 19.1 del Pacto Internacional de Derechos Civiles y Políticos, tratado de derechos humanos de obligatorio cumplimiento para todos los que lo han firmado: “Nadie podrá ser molestado a causa de sus opiniones.”

Incluso en marzo de 2023, el Comité Jurídico Interamericano -CJI- aprobó una “Declaración de Principios interamericanos en materia de Neurociencias, Neurotecnologías y Derechos Humanos”. Es claro que para este órgano de la Organización de los Estados Americanos -OEA- hay protección al uso de los “datos neuronales” cuando sin titubeos afirma en el principio 3 que esos datos son “datos personales”. En otras palabras, toda la normativa que protege y regula el tratamiento de datos personales, debería aplicarse también a lo que llama datos neuronales.

Asimismo es necesario advertir que en estos ámbitos debe avanzarse con cuidado: no es lo mismo regular las tecnologías invasivas, de las que no lo son. Otro ejemplo sobre particularidades a tener en cuenta: tampoco es lo mismo regular la tecnología que eventualmente permite recoger actividad neuronal de aquélla que eventualmente pueda modificarla. Y, finalmente, tampoco es lo mismo desde la mirada regulatoria, la regulación de tecnologías que puedan recoger o modificar actividad neuronal en el sistema nervioso central o en el sistema periférico.

Para terminar, y volviendo al comienzo con el relato de mi experiencia personal de cuando era un niño: la máquina que utilizaba Joe en la serie de hace cincuenta años hoy ya es parte de la realidad. En buena hora y oportuna la Sentencia de la Corte Suprema de Chile y los documentos que provienen del CJI que nos permiten concluir, como decía al comienzo, que no hacen falta “crear” nuevos derechos sino conocer y aplicar los que ya tenemos.

Derechos Humanos y Metaverso

Publicado en el diario La Nación de Costa Rica el 1 de junio de 2023

 

Convention 108 and the GDPR: Trends and perspectives in Latin America

 https://doi.org/10.1016/j.clsr.2020.105516

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Over1,2 the past twenty years, several countries in Latin America have enacted their own data protection laws.3 In many cases, these laws have followed standards that were and still are being developed in the European Union. In spite of that, only a few of those countries -namely, Uruguay, Argentina and Mexico- have acceded to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (hereinafter Convention 108), an international commitment approved by the Council of Europe in 1981 and has recently been modernized (hereinafter Convention 108+).4 Moreover, fewer countries -only Uruguay and Argentina- have been granted by “adequacy decisions” which are regularly determined by the European Commission and approved by the European Union. The benefits for those who obtained these decisions, are, among others, that enable free data flows between the EU and those countries in accordance to the Data Protection Directive 95/46/EC (hereinafter Directive).5

It may not be a coincidence that two of the three countries that have ratified the treaty (Convention 108) have also been considered adequate by the European Union. This is not only theoretically but practically relevant, because both Argentina and Uruguay are currently undergoing a new adequacy revision process under Regulation (EU) 2016/679 (hereinafter General Data Protection Regulation or GDPR), which may come to an end during 2020.6 In this sense, it might be important to analyse whether Convention 108 and the GDPR are intertwined. What are precisely the links between these two regulations? Could the accession to Convention 108 influence an adequacy decision by the European Commission?

In this essay, we will attempt to approximate to these questions by establishing: (i) the connections between GDPR and Convention 108; and (ii) how those connections might have an impact on adequacy decisions in light of recent and undergoing experiences in Latin America. Considering that most adequacy decisions under the GDPR -except for Japan7- are pending, some of our findings may be provisional or speculative and should be read as such. Nonetheless, these insights might be a starting point to examine in more detail the relationship between the most important multilateral treaty on data protection so far and the GDPR, which seems to have become not only a global model, but also a standard of standards, a rule of recognition to identify what is -and what may not be- an appropriate data protection law.

The links between convention 108 and GDPR

Regulation (EU) 2016/679, better known as the General Data Protection Regulation or GDPR, was issued in April 2016 and became implemented two years later, in May 2018. This regulation superseded the Data Protection Directive 95/46/EC and incorporated new features such as the extraterritorial scope, the privacy impact assessment, the data protection officer, the accountability principle, the right to data portability and the right to object. However, adequacy decisions were maintained in the new regulation as the primary mechanism to enable free data flows between the members of the European Union and foreign countries. It should be remembered that an adequacy decision -both under the old Directive and the GDPR- is determined by the European Commission after establishing, through a consultative process, that a non-European country has laws, practices and institutions that ensure that personal data of European citizens will be duly protected.8

Because it implied such a paradigm shift, GDPR also established in its Article 97 that adequacy decisions taken so far under the Directive would be reviewed according to the new stricter regulation. In effect, that Article says that

1

By 25 May 2020 and every four years thereafter, the Commission shall submit a report on the evaluation and review of this Regulation to the European Parliament and to the Council. The reports shall be made public.

2

In the context of the evaluations and reviews referred to in paragraph 1, the Commission shall examine, in particular, the application and functioning of:

Chapter V on the transfer of personal data to third countries or international organisations with particular regard to decisions adopted pursuant to Article 45(3) of this Regulation and decisions adopted on the basis of Article 25(6) of Directive 95/46/EC;

Pursuant to Article 45(2) of the GDPR, when assessing the level of protection of a non-European country the European Commission shall take account of the following elements: (a) rule of law, protection of human rights and specific data protection rules, provided by law and jurisprudence; (b) the existence of an independent data protection authority that ensures the rights of the data subjects and enforces compliance; and (c) international commitments, in particular related to the protection of personal data.9 Regarding this last point, Recital 105 of the GDPR further notes that

Apart from the international commitments the third country or international organisation has entered into, [when assessing the level of protection of a third country] the Commission should take account of obligations arising from the third country's or international organisation's participation in multilateral or regional systems in particular in relation to the protection of personal data, as well as the implementation of such obligations. In particular, the third country's accession to the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to the Automatic Processing of Personal Data and its Additional Protocol should be taken into account.

As it is widely known, the Convention 108, is a treaty enacted by the Council of Europe in 1981 and the only comprehensive and binding data protection framework at international level. It has been amended three times: the first time in 1999, by an Amendment that allowed European Communities to join the treaty; the second time in 2001, by an Additional Protocol that incorporated new obligations related to the existence of supervisory authorities and transborder data flow; and the third time on May 2018, a few days before the GDPR was implemented, by an Amending Protocol that revised the text integrally.10 This new version of the treaty is regarded as a “modernization” and has been labelled “Convention 108+”.

It is certainly not a coincidence that Convention 108+ was born alongside the GDPR. The Explanatory Report11 of Convention 108+ clarifies that “[t]he modernization work was carried out in the broader context of various parallel reforms of international data protection instruments [including the GDPR]” (2018, p. 15). It further notes that

With regard to the EU data protection reform package in particular, the works ran in parallel and utmost care was taken to ensure consistency between both legal frameworks. The EU data protection framework [i.e. GDPR] gives substance and amplifies the principles of Convention 108 and takes into account accession to Convention 108, notably with regard to international transfers (2018, p. 15).

Interestingly, Article 14 of Convention 108+ specifies that being a party to Convention 108+ does not automatically enable free flows of data between non-European countries and the members of the European Union, because “[a] Party may [restrict international transfers of personal data], if bound by harmonised rules of protection shared by States belonging to a regional international organisation”. This restriction to the free flows of data that should otherwise arise between the parties of Convention 108+ seems like a tailor-made exception for the European Union, since, to date, the GDPR is the most important and well known example of “harmonised rules of protection shared by States belonging to a regional international organisation”. However, the Explanatory Report further clarifies that

a third country's accession to Convention 108 and its implementation will be an important factor when applying the EU's international transfer regime, in particular when assessing whether the third country offers an adequate level of protection (which in turn allows the free flow of personal data) (2018, p. 27).

In effect, even if Convention 108+ does not cover all the innovations that the GDPR brought along, such as the data protection officer, the privacy impact assessment or the principle of accountability of data controllers, it is consistent with most of the GDPR requirements. In this sense and noting the similarities, but also the differences, between the two regulations, Greenleaf (2018) has pointed out that

Because 108+ includes most important GDPR innovations (in less prescriptive form), accession to 108+, coupled with proper enforcement should indicate that most aspects of the GDPR requirements are met. However, 108+ does not include all GDPR innovations, and it is as yet uncertain how EU institutions will interpret the adequacy provisions of the GDPR. It is possible that GDPR ‘adequacy’ will not require any of these elements not found in 108+, but on the other hand some might be required or strongly desirable. ‘Adequate’ did not mean ‘identical’ under the Directive, and will not under the GDPR. It is therefore uncertain, but possible, that compliance with the standards found in 108+ may also in practice approximate what it meant by ‘adequate’ under the GDPR. If so, the 108+ standards (which we can call ‘GDPR Lite’) may become the new global standard by 2023 (p. 3).12

In summary, there are enough links between the modernized Convention 108 and the GDPR to consider that these two instruments are close-knit and that the accession to the former should have an important weight in the adequacy to the latter. On one hand, from the standpoint of non-European countries, Convention 108 could be seen as an efficient mechanism to achieve or at least facilitate a favourable adequacy decision. On the other hand, from the standpoint of the members of the European Union, Convention 108 could be conceived as a means to ensure the globalization of most of GDPR rules and, thus, a sufficient level of protection to allow free data flows. Both sides of the coin are certainly connected.

As we will see in the next section, Latin American countries became notably more interested in Convention 108 once the GDPR was launched in May 2018.

The data protection scene in Latin America

The first Latin American country that acceded to the original Convention 108 and its first Additional Protocol was Uruguay in April 2013. Uruguay had requested an invitation to accede in 2011 and the Council of Europe granted such invitation the same year. Mexico followed in June 2018 and Argentina a bit later, in February 2019. Both Mexico and Argentina had requested an invitation to accede in 2017, which is only one year after the GDPR had been issued.13 It is indeed likely that the reform of the European data protection framework motivated the governments of these countries to become parties to the treaty in order to preserve -in the case of Argentina- or obtain -in the case of Mexico- the status of “adequate” under the GDPR.

When Convention 108+ came along, Uruguay and Argentina signed it very quickly. The former in 2018 and the latter in 2019.14 At the time, both countries were undergoing the adequacy revision process that is enshrined in Article 97 of the GDPR and the signature of the modernized treaty might have been conceived as a strategic move to preserve adequacy and get aligned with the new regulation. This revision process has recently come to a formal end on 25 May 2020 and soon enough we will learn if the signature of Convention 108+ and the approval of old Convention 108 has had any weight in the decisions of the European Commission.

Both Uruguay and Argentina have also done regulatory efforts to modernize their general data protection frameworks in order to match the new international standards set by the GDPR. In 2019, through Law No. 19.670, Uruguay introduced the following modifications to its general data protection law: (i) it establishes an obligation to designate a DPO whenever the main business of the controller involves the processing of data on a large scale, or the processing of sensitive data; (ii) the scope of application of the data protection law has been extended to controllers who are outside of Uruguay whenever their processing activities are related to the offering of goods or services to individuals in Uruguay; (iii) the notification of data breaches to the data subject as well as to the data protection authority is now mandatory; (iv) the accountability principle has been expressly acknowledged in the law.15

In Argentina perhaps the most important legislative change was the creation of its new national data protection authority, the Access to Public Information Agency (“AAIP”), which enjoys a substantial higher degree of independence than its predecessor. Other important efforts to modernize its legal framework include (i) the Draft Bill sent to Congress by Argentina's Executive Branch on September 2018, which contained a comprehensive reform to the current general data protection law, and (ii) AAIP's Resolution No. 4/2019 which sets forth a definition of biometric data and also recognizes the possibility of data subjects to request information on the logic applied on decisions based on automated data processing.16 It is worth noting that, despite the fact that in March 2020 the Draft Bill lost its status as such, it proposed a series of changes that were certainly influenced by the GDPR, among other modern data protection legislations in the world.

It should also be noted that Brazil, recently passed a new data protection law (the “LGPD”) that took inspiration from the GDPR and joined the Consultative Committee of Convention 108 as an observer in October 2018.17 Brazil's LGDP, in force as of February 2020, reproduces most of the GDPR's rules and structure very closely: the extraterritorial scope of application of the law, the requirement of a legal basis to process personal data and to allow international transfers, the penalties system, the obligation to designate a data protection officer, and the duty to notify data breaches, among others.18 This may anticipate Brazil's wish both to accede to the treaty and to be declared adequate by the European Commission in the near future.

In August 2019, Colombia also initiated “discussions about the possibilities of joining the Committee of Convention 108 as observers, as a first step into Convention 108+”.19 Additionally, in 2018, during a recent meeting of data protection authorities belonging to the organisation of American States, the President of Costa Rica “stated that [the country] had a strong commitment with the [data protection] issue and announced his willingness to have Costa Rica adopt Convention 108 of the Council of Europe in the near future”.20

In 2018, Chile's Constitution was amended in order to include data protection as a fundamental right, whose exercise will be regulated by law.21 Another news that clearly shows the direction Chile is taking in data protection matters is the fact that in July 2019, its Ministers of Finance and of Justice and Human Rights issued a joint press statement with Commissioner Věra Jourová on data protection cooperation, where they agreed to “work towards global solutions to digital challenges and further facilitate mutual data flows, including the possibility of exploring the use of all available instruments, such as adequacy”, and where Commissioner Jourová welcomed the decision of Chile to join the Convention 108 as an observer.22

It is important to highlight that both Europe and Latin America -as whole regions- seem to be engaged in mutual efforts to get closer to each other with respect to data protection. As a matter of fact, the Consultative Committee of Convention 108 is a member of the Ibero-American Data Protection Network,23 an international data protection platform that integrates many Latin American countries together with Spain and Portugal since 2003. This Network has made important contributions to spread the European view of data protection. In its agenda for the period of 2015–2018, the Network sought explicitly to promote the European data privacy rules in Ibero-American countries, noting “the benefits that such adoption would bring to Spanish companies that desire to transfer an increasing volume of personal data with such countries.”24

Additionally, in June 2017, after the GDPR had been issued, the Network published the Standards for Data Protection for the Ibero-American States, aligning itself with the new European rules and explicitly taking inspiration not only from the GDPR, but also from Convention 108.25 Since participation in multilateral or regional systems related to the protection of personal data is a relevant factor in adequacy decisions, the Standards for Data Protection for the Ibero-American States could be regarded as an additional move of the Latin American region to approximate to the GDPR, but also as a move of the European Union –represented in the Network by the Consultative Committee of Convention 108, Spain and Portugal- to globalize its own data protection standards.

Conclusion

This brief description of the links between Convention 108 and the GDPR and their impact on the Latin American scene allow us to affirm that both instruments have had a great deal of influence in the region and that this influence might increase in the near future, since adequacy standards have changed with the emergence of GDPR and Convention 108+ and these two regulations are closely related to each other.

1

I thank Mauro Meloni and Juan Agustin Otero who assisted me in writing this article. They did part of the research and drafted some parts of the article under my supervision. Meloni and Otero obtained their Law degree from Universidad de San Andrés School of Law, Argentina. They are currently Legal Advisors at the Access to Public Information Agency, the Data Protection Authority in Argentina.

2

Eduardo Bertoni (Phd, Buenos Aires University; MIPP, George Washington University) became the first Director of the Access to Public Information Agency (AAIP), a Secretary-level position after passing an open and transparent selection process that included a public hearing. Previously, he was the Director of the former National Data Protection Authority. He is the founder and was the first director of the Center for Studies on Freedom of Expression and Access to Information (CELE) at Palermo University School of Law, Argentina. He was the Executive Director of the Due Process of Law Foundation (DPLF) in Washington, D.C. (2005–2009) and the Special Rapporteur for Freedom of Expression of the Inter-American Commission of Human Rights at the Organization of American States (2002-2005).Bertoni currently teaches at Buenos Aires University School of Law and New York University School of Law (Global Clinical Professor). He published several opinion pieces on democracy, human rights, freedom of expression, and data protection in leading newspapers in the Americas and has written several publications on judicial reform, international criminal law, and human rights & the Internet.

3

See for example Law N° 25.326 (Argentina); Law N° 18.331 (Uruguay); Law N° 13.709/18 (Brazil); Federal Data Protection Law 05-07-2010 (Mexico); Law N° 1581/2012 (Colombia); Law N° 29.733 (Peru).

4

See the chart of signatures and ratifications of Convention 108 in: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/108/signatures?p_auth=O1ZGs4lK.

5

See the European Commission list of adequate countries regarding data protection in: https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/adequacy-decisions_en#documents.

6

See Article 97 of the GDPR.

7

See the European Commission Implementing Decision (EU) 2019/419 of 23 January 2019 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate protection of personal data by Japan under the Act on the Protection of Personal Information, available in: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019D0419&from=EN.

8

See Article 25(6) of the Directive and Article 45 of the GDPR.

9

This is a simplified paraphrasis of the complete text of Article 45(2) of the GDPR.

10

See the list of amendments in: https://www.coe.int/es/web/data-protection/legal-instruments.

11

See the Explanatory Report in: https://rm.coe.int/16808ac91a.

12

Graham Greenleaf, ‘Modernised’ Data Protection Convention 108 and the GDPR (2018) 154 Privacy Laws & Business International Report 22-3 (2018). UNSW Law Research Paper No. 19-3

13

See the chart of signatures and ratifications of Convention 108 in: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/108/signatures?p_auth=O1ZGs4lK. Also see opinions by the European Council on the requests for accession by Argentina, Uruguay and Mexico in: https://www.coe.int/es/web/data-protection/convention108/parties.

14

See the chart of signatures and ratifications of Convention 108+ in: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/223/signatures

15

See the modifications to Uruguay's data protection law introduced by Law No. 19.670 in: https://www.gub.uy/unidad-reguladora-control-datos-personales/comunicacion/publicaciones/cambios-recientes-legislacion-sobre-proteccion-de-datos-personales-en

16

See the complete text of Resolution AAIP No. 4/2019 in: https://www.boletinoficial.gob.ar/detalleAviso/primera/200224/20190116

17

See list of observers of Convention 108 in: https://rm.coe.int/list-of-observers-nov-2018-en/1680938538. Also see the Council of Europe news about Brazil joining the Consultative Committee as an observer: https://www.coe.int/en/web/data-protection/-/brazil-and-the-data-protection-commission-of-gabon-to-join-the-committee-of-convention-108-as-observers-.

18

See comparison of the GDPR and the LGPD in: https://iapp.org/news/a/gdpr-matchup-brazils-general-data-protection-law/

19

See the Council of Europe news about the discussions held with Colombia's authorities: https://www.coe.int/en/web/data-protection/-/colombia-a-first-step-towards-convention-108-

20

See the Informative Newsletter of the Organisation of American States regarding the Annual Meeting of Data Protection Authorities in 2018: https://www.oas.org/es/sla/ddi/boletines_informativos_DDI_proteccion_datos_personales_Encuentro_Anual_Costa_Rica_2018_Diciembre-2018.html.

21

See more about Chile´s Constitutional amendment in: https://iapp.org/news/a/personal-data-protection-is-a-constitutional-right-in-chile/

22

See Joint press statement by Commissioner Věra Jourová and Felipe Larraín Bascuñán, Minister of Finance, and Hernán Larraín Fernández, Minister of Justice and Human Rights of Chile on cooperation on data protection: https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_19_4029

23

See list of members of the the Ibero-American Data Protection Network in: https://www.redipd.org/es/la-red/entidades-acreditadas

24

Anu Bradford, The Brussels Effect, 153 Nw. U.L. Rev. 1 (2012).

25

See the Standards for Data Protection for the Ibero-American States in: https://www.redipd.org/sites/default/files/inline-files/Estandares_Esp_Con_logo_RIPD.pdf

Finally, Something New Under the Sun! Notes on the Inter-American Court of Human Rights Ruling on the RCTV Case*

The decision of the government of Venezuela not to renew the concession of Radio Caracas Televisión (RCTV) was the subject of interesting discussions on the state of freedom of expression in that nation. The controversy eventually reached the Inter-American Court of Human Rights, which issued a ruling on the case, GRANIER Et Al (RADIO CARACAS TELEVISIÓN) VS. VENEZUELA (the RCTV case), on June 22, 2015. The court ruled against Venezuela, finding that there had been violations of freedom of expression, and ordered the State to return the equipment that had been seized so that the channel could go back on the air until a new license concession process could be conducted. Manuel Ventura Robles, now a former member of the Court, stated in his remarks that this is the most important sentence issued by the body in the field of freedom of expression.

I agree with his statement, though I cannot forget many other cases that had a clear impact on the exercise of this fundamental right on the continent. (For example, I recall cases regarding abuse of laws on insults or criminal defamation, or even prior restraint or violence against journalists.) I do fully agree with Ventura Robles that this sentence makes clear “the Court’s desire to avoid more violations of freedom of expression on our continent, reverse the case law from Mémoli vs. Argentina, and make it clear to the government [of Venezuela] how serious the violation [of freedom of expression] is.” As I will briefly show in the paragraphs that follow, in the ruling on the RCTV case, the Court has given us new standards for the interpretation of Article 13 of the American Convention on Human Rights (ACHR).

Those of us who have had the opportunity to litigate before the Inter-American Court of Human Rights on a regular basis, ask ourselves which elements of evidence are important as part of our efforts to bring allegations of violations of freedom of expression before the court. The RCTV case gives us a very valuable clue for responding to this question. It also offers some unbeatable advice to public officials: be careful what you say, because it can be used against you! It is worth noting that in paragraph 61 of the ruling, for example, the Court states that it had been proved that there was both “an ‘environment of intimidation’ generated by the statements of high-ranking government authorities against independent media outlets” and that, based on such statements, the failure to renew the concession was due to the fact that this outlet held “an anti-government stance.”

In regard to this last point, the defense that the Venezuelan government mounted during the trial and the way that the Court knocked it down are of interest. According to the state (paragraph 187), the decision not to renew the concession was based on “the democratization of the use of the broadcasting medium and plurality of messages and contents.” The Court recognized that guaranteeing pluralism is not only a legitimate end, but also a duty of the state. However, in this case, after analyzing the officials’ statements, the Court determined that there was an unstated end (punishing RCTV for its anti-government editorial line) and that this represented abuse of power by the authorities “given that a power granted to the State was used in order to editorially align the media outlet with the government” (paragraph 197). The ruling also states that “the true purpose was to quiet voices critical of the government, which, along with pluralism, tolerance and the spirit of openness, represent the demands of a democratic debate that freedom of expression seeks to protect” (paragraph 198).

Ultimately, the interesting thing is that in order to prove both elements (context of attack on the media outlet based on its editorial line and the decision not to renew the concession), the Court evaluated the statements of the officials. Keep that in mind for the future!

The sentence provides another clue for future litigators. Though it is not surprising but also not unimportant, the Court stated that “the media are true instruments of freedom of expression” (paragraph 148). It is clear that the media are legal entities, and this is the problem that the Court solved in this case: given that, as the court understands it, legal entities cannot be “victims” of a violation of rights based on the American Convention of Human Rights, it must be determined “whether a State action that affected the media outlet as a legal entity also had a certain and substantial negative impact on the freedom of individuals.” To that end, it is necessary to “analyze the role that the presumed victims play within the media outlet and specifically the way that they contributed to the channel’s communications mission” (paragraph 149). In the Court’s decision, it was determined that there were violations of rights of individuals related to the legal entity RCTV.

An innovative question for the Court’s case law (though the OAS Special Rapporteur for Freedom of Expression had anticipated this a few years ago) refers to the broadcasting standards that must be considered in order to provide the freedom of expression guaranteed by the American Convention on Human Rights. The Court refers to this issue broadly for the first time in this ruling.

In paragraph 165, the court recognizes “the authority and need of governments to regulate broadcasting activity… as long as they respect the guidelines imposed by the freedom of expression….” This activity of governments includes the key issue in this case: the decision regarding how concessions or license renewals for broadcasting space use are handled.

To that end, and given that –as the Court notes- the spectrum is very limited, distribution must be handled in a manner that ensures that there are media that represent “a diversity of visions or informative stances or opinions” (paragraph 170). The Court ends the paragraph by stating that “pluralism of ideas in the media cannot be measured based on the number of media outlets. It depends on whether the ideas and information transmitted are actually diverse and are addressed from divergent positions without a single vision or position.”

This must be considered during the processes of granting or renewing broadcasting license concessions. The Court ruled that the limits or restrictions derived from the regulations related to broadcasting must consider the guarantee of pluralism of the media given its importance for the functioning of a democratic society.

In other words, for the Court, the guarantee of pluralism is key for analyzing regulations on concessions and for the renewal of concessions that have already been granted. In regard to the latter, the ruling notes (paragraph 179) that there is no duty to renew broadcasting concessions in international law. On the other hand, based on this sentence it is clear that the Court will interpret concessions processes so that they are compatible with the American Convention on Human Rights. “All of these processes must be handled without discriminatory criteria that seek to limit the granting of concessions and they must be aimed at strengthening informative pluralism and respect for judicial guarantees” (paragraph 394). In the case of RCTV, the Court understood that the Venezuelan government had violated Article 13 of the Convention precisely because the decision not to renew was the result of an abuse of power.

In closing, I began with a mention of the Ventura Robles vote and I will end with a reflection that stems from his statements in this case. His vote is a dissenting one, and it is important to understand why this is the case even though he believes that freedom of expression had been violated by the Venezuelan State. He laments the fact that the Court did not find a violation of other rights, including the guarantee of the independence and impartiality of the Judicial Branch that would explain the violation of the right to ownership. Thirty years ago, when Ventura Robles was the Assistant Secretary of the Court, the body issued its Consultative Opinion No. 5, which taught us that freedom of expression is the cornerstone of democracy. As such, we must all exercise it and also defend it against even the smallest attempts to chip away at it. For that defense, we need a division of powers and especially independent judges. The defense of freedom of expression needs them.

Originally published at Observacom here