Anti-discrimination and freedom of expression in Argentina

by Digital Rights LAC on August 24, 2015


The “National Law Against Discrimination” project that is being discussed these days in Argentina aims to regulate comments on the internet, among other goals. This project is against the National Constitution and the principles established for the Inter-American Human Rights System.

Valeria Milanés, Association for Civil Rights

On July 14th, ADC was present at the hearing of The Commission of Constitutional Matters and Guarantees from the House of Representatives, where the consensus text from The National Law against Discrimination was treated, a project which aims to consolidate diverse legislative initiatives found in Congress about this subject.

Surprisingly, the time invested debating this project was minimal; from all three hours of the hearing, only fifteen minutes were dedicated to its discussion. The excuse was that it was a text already developed by the advisors and agreed by the consensus of the majority of the members of the commission, therefore the verdict is already favorable. Although it still has to go over other two commissions before reaching the plenum of the Chamber of Deputies, the main endorsement of the ruling party, which is repeated in each Commission, elevates the possibilities of the consensus text to become law.

The project has as main goals to guarantee equality and eliminate discrimination. The problem is that, behind such laudable resolutions, there are a series of irregularities and incompatibilities so offensive that they wreck any good intention from the writers of the project.

As we have shown in a previous document, the project contains regulations that restrict the freedom of expression and are incompatible with the National Constitution.

In the first place, the text violates the principle of legality contained in the Argentine Constitution and enshrined by the Inter-American Human Rights System, since the project uses excessively vague and ambiguous definitions. It establishes the possibility of infringements without guilt and reverses the burden of evidence in cases of expressions or discriminatory behaviors.

Regarding the Freedom of Expression, the project violates the principle of legality that demands the law to establish the restrictions on this guarantee, in both formal and material way, by using precise and clear language. This project does not do that; otherwise, in several opportunities poses that its definitions are not limited.

The project also intends to restrict the expression of citizens on the internet, by labeling this communication form as problematic and requiring a specific regulation. This approach is alarming and unsustainable, since the internet is increasingly becoming the favorite mode of democratic public debate.

The State has the obligation to guarantee a diverse and varied space for deliberation, without wrongful restrictions, as embodied in Law 26.032, which established in a unique but clear article that “the search, reception and dissemination/broadcast of information and ideas of all kinds through the internet service, is considered under the constitutional guarantee that protects freedom of expression”.

The bill tends to restrict this space for at least three reasons. Firstly, because it imposes to those who manage internet web pages where comments are allowed, the responsibility to control the content and publish information they may not agree with, such as the definitions of the project in their appendix II. In the second place, because it forces to establish communication mechanisms with the website’s owner that would imply a violation to the right to anonymous expression, something that is guaranteed by our Constitution. Third, because it forces press media owners, news agencies, online newspapers and online magazines to “take the necessary measures to prevent the broadcasting of discriminatory contents”.

That forces them to monitor the content of the communications directed through their media, which generates incentives to close rather than foment these spaces. Numerous prominent personalities have raised their voices to warn about these risk, such as Beatriz Busaniche from Fundación Vía Libre and Eduardo Bertoni from CELE.

There has been a large global discussion about this subject, particularly about the takedown of contents from those who act like intermediaries in the public discussions on the internet, thus we can mention the Manila Principles, which establish; a) content must not be required to be restricted without an order by a judicial authority; b) requests for restrictions of content must be clear, unambiguous, and follow due process; c) laws, content restriction orders and practices must comply with the tests of necessity and proportionality; d) laws and content restriction orders and practices must respect due process.

The project also contributes to an unjustified limitation of the public discussion. The Inter-American Court of Human Rights has pointed out that the States members of the American Convention of Human Rights are obliged to guarantee and promote a wide scope of debate and public deliberation. This includes the expressions “that offend, annoy, worry, are ungrateful or disturb the State or any sector of the population”.

Although it is ideal that in democracy the public debate occurs without discriminatory expressions of any kind, the only ones that can be forbidden and penalized for the State are those derived from the article 13.5 of the American Convention of Human Rights, that is, those that are “war propaganda” or “any advocacy of national, racial, or religious hatred that constitutes incitement to violence or any other similar illegal action against any person or group of persons.”

That is, just as the interpretation of the article by the bodies of the Inter-American system indicates, it is necessary that hate speech is linked to violence incitement or the perpetration of similar illegal acts (e.g. threats). The broad definitions on the mentioned draft law extend these assumptions and consequently constitute an illegitimate restriction of the freedom of expression.

As a final conclusion about the risk involved in this project against the freedom of expression in Argentina, let’s use the words from the journalist Ariel Torres, whose masterful writing has highlighted that the main mistake underlying the project is that “it confuses discourse with action, and not only are they not the same, but by putting them in an equivalent level creates necessary and sufficient conditions to preliminary censorship and self-censorship (..) But the gravest is that it equates the words with the acts. The interesting thing is that the prior censorship and self-censorship are acts of discrimination by themselves. Prior censorship does not exclude us by our skin color, sexual orientation or creed, but for our ideas and opinions, and it does it with so much rigor that in the end we learn by ourselves what we can or we cannot say; that is self-censorship, a kind of prejudice we apply willingly to ourselves because we are scared. That is terrible.

We are still on time to stop and re-think this proposal, open it to discussion and contribution from the different sectors involved, in order to achieve a quality legal text that will be functional to its goal, and also preserve rights and guarantees granted by our Constitution and the Inter-American Human Rights System. Let us hope this is the next step that our legislators will take.

Image: Carolyn Tiry / Flickr