The fragile protection of freedom of expression in Paraguay and its limited development on the internet is just another indication of how slow the consolidation process is in the transition toward a democracy that is respectful of human rights and a State that guarantees digital justice among its residents.

By Yeny Villalba, with the cooperation of Natalia Enciso

In other words, while this premise is not new, the more the internet and potential social infrastructures develop for the full enjoyment and exercise of freedom of expression without discrimination –together with other recognized rights–, the greater the possibility of a social rule of law; of a country founded on democratic values that extend beyond dogma and propaganda and where obstacles are prevented –including those arising from “indirect means” for violating rights, such as a lack of infrastructure for a free and neutral internet, and any element that reveals or “blocks” the quality of the democratic model being sought.

Transition toward democracy with a transition toward digital justice?

Paraguay has been undergoing a long transition toward democracy (1989- 2014) that has extended almost as long as its prior dictatorship (Alfredo Stroessner 1954-1989), in a scenario in which the internal debate focuses on other priorities (such as current levels of social inequality, poverty, extreme poverty, and tributary injustice, among other things) and the issue of digital justice is relegated to a small corner in the shadows of Paraguayan democracy.

This is not only because Paraguay still lacks specific legislation for protecting digital justice and opening its channels for exercising the right to access public information, but also because of the permanent criminalization of activists that mobilize freedom of expression and public interest on issues that supplement the digital agenda. In this context, digital law is practically excluded from reality and public debate. Paraguay is the country with the lowest alternation of government in the region and whose standards are so minimal that it differentiates itself from all other Latin American countries. Another differentiating factor is its limited number of actors, which hinders a mature discussion on internet rights or the digital agenda in government programs, without losing sight of the comprehensive nature of the human rights that make up the fragile social reality of Paraguay.

In order to speak of a digital transition in the Paraguayan scenario from a digital rights-centered point of view, it is convenient to first relate and contextualize the last elections that took place in April 2013, which were characterized by cases of criminalization and tension revolving around lack of transparency. Meanwhile, the public interest debate occurred through limited tools that are available online. The fact is that citizens who are using technology are openly expressing their views online and are demanding transparency and effective management of public assets, while focusing their criticism –as can be expected during electoral campaigns– on candidate profiles. In a participative and plural democracy, all this should simply be part of ordinary life, people should be able to express their thoughts without drawing attention to themselves or taking risks or extraordinary measures, but that is not the case in Paraguay.

The country’s weakened democracy has created a hostile scenario for an angry public, where electoral candidates have generated negative precedents when trying to “make examples” out of certain cases and preach the importance of “keeping quiet,” turning anything that is said against them into a case of “defamation and libel” through a weak legal interpretation that is particularly dangerous in electoral times.

There were no “politicians” in the April 2013 elections in Paraguay whose proposed government programs focused on the debate or the insertion of standards for accessibility, technical development, diversity and increasing capacities for the exercise of all rights, nor focusing on respecting freedom of expression, privacy or other issues in the global digital rights agenda. That is why I am using this election, the importance of which exceeds the change in government administration, as a segment in the history of Paraguay that illustrates and links freedom of expression to the digital agenda; as it has even led the Inter-American Court of Human Rights to sanction Paraguay for criminalizing activists and subtly “blocking” their liberties.

In the electoral context, third-party accusations should have led candidates to seek transparency and clarity and to expose the truth in the public arena, taking advantage of the political game to bring out the best in each candidate; however, the possibility of pressing criminal charges for libel and defamation proved to be too strong a temptation and, in addition to serving as a form of intimidation, this recourse to judicial remedies exposes and reveals the harsh reality perceived in the collective imagination: that one must be afraid to speak up, write notes, post or tweet without “sufficient proof.”

Long before the last general elections in Paraguay, in the 1993 elections –where candidates included the future first president since the dictatorship, representing the usual political party (i.e. Asociación Nacional Republicana – Partido Colorado) versus Civil Engineer Juan Carlos Wasmosy (now lifetime senator)– the first case was filed before the Inter-American Court of Human Rights against Paraguay for allowing a candidate to undergo criminal charges after the elections for his statements regarding public interest issues. This case was preliminarily analyzed in relation to freedom of expression, and once accusations were confirmed, the Court decided against Paraguay on the basis of proven violations to the American Convention on Human Rights; this decision issued on August 31, 2004 in “Ricardo Canese vs. Paraguay,” marks the first international precedent focusing on transparency in the electoral race, the right to freedom of expression and truth as a public interest.

However, throughout 2013, there have been situations that affected freedom of expression and Paraguay is still at risk of new sanctions like those in the Canese Case. Lower profile precedents than those in the Canese case reveal that the defense of the legitimacy of internet rights and liberties urgently needs to find its way into the social agenda.

Leaked Reports that Serve as “Examples”

With lack of specific norms constituting the perfect excuse to limit access to public information that could result in “evidence” and information that is almost always followed by denouncements and the full exercise of the right to freedom of expression, and given that what is at stake are public interest issues based on general principles of civil and criminal law that are more evident during elections, local media have leaked information on congressional candidates who indirectly hinted that they will take the time and trouble to identify individuals that leave messages in public interaction forums. A controversial example of this is the complaint filed against a politician from an opposing party in an electoral area of the interior of the country who was ultimately subject to conviction.

According to reports leaked by the local media (here and here, also), “… senator Juan Darío Monges (ANR) filed a complaint against the liberal lawmaker, and former mayoral candidate, Jacinta Barreto, of Sapucái, Monges’s birth city. In his complaint, the senator claimed that Barreto had allegedly accused him of “being a petty thief” [abigeo] on Facebook during a political campaign where she was running for mayor of Sapucái in February of that year.

Barreto denies having ever made such an accusation against him. In fact, she issued a public apology –also via Facebook– claiming that “someone else” (such as a hacker, for example) had used her profile to make the accusation.

She also stated that everyone knows she comes from humble beginnings and does not have the necessary financial means to “clear the senator’s image” by paying the fine in question.

On February 16, Héctor Ovidio Cáceres, Darío Monges’s protégé, won the electoral race in Sapucái. Liberal candidate Jacinta Barreto lost by nearly 500 votes…”

Another eloquent case is described in the newspaper ULTIMA HORA DIGITAL “[…] Representative Oscar Tuma requested, via Facebook, information on a person that had published his personal phone number via Twitter last Saturday, sparking controversy throughout social networks. The person who published Tuma’s personal phone number was Male Bogado (Twitter handle @fanquifungus). Below is an excerpt of the article:

Among other things, this former Oveidist tweeted: “Look at public TV… so f*** funny, hahaha, so many clowns talking.” “Now there’s a ridiculous woman on the air. It’s like a sitcom.” “These fools still have no clue what’s going on. Someone should tell them the country has a new administration. They should flee to Cuba.” In addition, he referred to Cristina Fernández de Kirchner, President of Argentina and Dilma Rousseff, President of Brazil, as “hysterical women.”

Male Bogado told ULTIMAHORA.COM that what the Representative said via Twitter was disrespectful. “He expressed himself in a very derogatory way,” he stated.

He questioned whether a public figure and government representative like Tuma could express himself in that way toward his political rivals. When he heard that the senator was trying to find him online via Facebook, Bogado claimed that if they really wanted to reach him, they should have done it privately. “The fact that he’s making it public indicates that he’s not serious,” he stated. Following the strife, Male Bogado made his Twitter profile private so that only his followers can read his tweets. He explained that the reason for this was that Tuma sympathizers would probably follow him, since there were already Facebook users who were expressing ideas in favor and against him.
Bogado’s tweet via @fanquifungus was retweeted several times. This proved, according to him, that there are people out there who “dislike” him. “Many joined the public flogging,” he added. The power of social networks should never be underestimated. However, he claimed it makes him sad to see that Tuma sympathizers “publish inappropriate posts.” He believes that if people wished to behalf violently, they would have done so already or found out his address. Tuma was ultimately able to find @fanquifungus, but has not yet contacted him to date.

For his part, Óscar Tuma believed any kind of argument would be in vein. “No criminal charges have been pressed, but I forwarded the statements that were circulating in social networks to the Ministry of the Interior,” he said to ULTIMAHORA.COM.

Similarly, cases of “content blocking” and “site redirecting” transcended because of their social impact and because they constituted a negative precedent; for example, victorbogado.com and partidocolorado.org were taken down by the governmental communications department known as COPACO and later abc.me users were blocked by the ISPs TIGO and PERSONAL.

Another widely broadcasted case in local Paraguayan media was that involving members of the Association of Internet Users who run the sites victorbogado.com and partidocolorado.org, which are public interest sites that published information on inconsistencies in the Representative’s administration and history during the elections. The day after publishing their posts, the site administrators realized their site had been blocked and users were being redirected. Users noticed it was COPACO that was redirecting them and, after confirming the event, denounced the censorship in every available media.

Similarly, another situation that startled users was when phone companies and ISPs blocked www.abcolor.me; as was pointed out at the time, this violated administrative norms pertaining to concessions for operating internet services established by the State agency Conatel. Both phone companies later issued an apology and stated that they had unblocked the site due to online pressure from users; however, information was later leaked that a third party had filed a complaint against the individuals who had published the post in question.

In Paraguay, the Joint Declaration on Freedom of Expression and the Internet, in relation to filtering and blocking, has not been widely diffused nor referenced by users; however, it has been resorted to for making defenses and filing complaints in some cases, although surrounded by the pressure that is usually implied in expected reactions and by the absolute partiality of ISPs. Let us review section 3 on filtering and blocking; as applicable to the cases mentioned above: “a. Mandatory blocking of entire websites, IP addresses, ports, network protocols or types of uses (such as social networking) is an extreme measure –analogous to banning a newspaper or broadcaster –which can only be justified in accordance with international standards, for example where necessary to protect children against sexual abuse.” And “b. Content filtering systems which are imposed by a government or commercial service provider and which are not end-user controlled are a form of prior censorship and are not justifiable as a restriction on freedom of expression.”

Incorporating the need for recognizing technology as an unlimited resource for social justice through digital rights, as well as the existence of a directly proportional relationship between that need and “letting people do” with minimal standards, constitutes a pillar of digital justice that enables citizens to exercise their freedom of expression. The traditional view “to each his own” must be ensured, but not in a context of hostility between citizens and the authorities.

Open internet and freedom of expression in a framework of digital justice for all without distinction ultimately plays a key role in the political agenda; when absent, democracy is weakened because civil society cannot interact with the State or overcome inertia, thus rendering it impossible to have a dialog with the authorities.

Would demanding a clear agenda and dialog enable us to overcome the precariousness of the current debate and post-dictatorial fear and authoritarianism? How do we overcome the authoritarian and extremely paternalistic tradition, remnant of the dictatorship, while coming out of the darkness and bringing digital justice with us?

There is hope for promoting the digital agenda and strengthening Paraguay’s civil society on public interest issues. To that effect, a Chapter of ISOC was recently created in Paraguay, and there are other organizations that are embracing political ideas aimed at promoting digital rights, digital justice and freedom of expression. However, there is still a long path ahead in terms of negotiations and consolidation, particularly in achieving the technical support and cooperation that is needed to grow in par with other States and to finally overcome Paraguay’s internet “neo feudalism.”

Translated by Paula Arturo