Mexico is heading down an unexplored route. Morena’s bench in the Senate presented this Monday night an initiative to regulate the functioning of social networks. The reform, which still has at least three months left in the parliament, gives an autonomous administrative body, the Federal Telecommunications Institute (IFT), immense power through double control. On the one hand, it will be able to supervise the internal regulations between network users and companies, which must have prior authorization. On the other, it will also develop subsequent supervision, focused on the criteria for the cancellation of accounts related to false news, hateful messages or children’s rights. The new system even requires the creation of specific departments in companies to deal with user complaints, includes fines for technology companies and widens the route to court.
With the recent cancellations of Donald Trump’s accounts in the background and the June midterm elections on the horizon, Mexico has decided to take a step forward in the tense balance between big technology and the ability of states to regulate internet blind spots . The official objective is “the protection of freedom of expression on social networks”, although lawyers and civil society organizations highlight the deficient legal design of an express initiative, without prior debate with specialists and social agents, difficult to apply and that could precisely curtail freedoms in the network.
The reform establishes a first filter when defining the social networks that will fall under the umbrella of regulation: platforms with a million or more subscribers or users, given their ability “to generate a greater impact on social communication processes and on the legal sphere of citizens ”. Large technology companies -Twitter, Facebook, Google- will have to submit their internal regulations with users, the so-called terms and conditions of service, to Mexican legislation in order to pass the prior authorization of the IFT. Specifically, to the laws related to the protection “of the rights of minors, the elimination of the dissemination of hateful messages, the spread of false news and the protection of personal data.”
Fines of up to 80 million pesos
At the same time, the technological ones “must include an expeditious mechanism to receive complaints from users against the suspension of accounts or profiles, the elimination of content or the definitive cancellation”. Mexico thus intends to impose that companies have specific departments to respond to user requests that, in addition, may not be automated “through the use of algorithms or any other technology”, but formed by “individuals duly trained in human rights and freedom of expression ”. If the company has not responded within 24 hours, the user may go to the IFT -with the capacity to sanction with fines of up to 80 million pesos- in a route that reaches the courts.
“It is a very small and totally cyclical initiative that does not take care of the problems that the networks can generate, but rather concentrates on controlling the resolution of conflicts related only to the suspension and cancellation of accounts,” says Javier Martín Reyes, professor of CIDE Legal Studies, which even doubts its constitutionality due to the legal ambiguity and lack of precision of the text: “How do you link and how do you demand compliance with social networks? How can you cancel them, fine them or prosecute them if they don’t have a tax seat in Mexico? “
Mexico faces the same obstacles as the rest of the states that have sought regulation. Technology companies are companies that establish private contracts with users that escape the jurisdictions and laws of each of the countries. The logic used on this occasion has been to equate social networks with traditional media. “The only correct and democratic way to protect freedom of expression in cyberspace is the legislative one, the same for the press, TV, radio and social networks”, defended at the end of this month the leader of Morena in the Senate, Ricardo Monreal, promoter of an initiative that goes into depth to reform the Federal Law on Telecommunications and Broadcasting.
International organizations dedicated to the defense of freedom of expression have already raised their voices when they understand that it is a reform that confuses the role of the State in the exercise of freedom of expression in the digital sphere. “In Mexico, Internet access is a right guaranteed by the Constitution, not a public good under the tutelage of the State. The Internet is not and should not be subject to being colonized by the State, unlike radio and television, where by concessions, collusions and official advertising there is an exercise of control over these traditional media, “the organization said in a statement on Tuesday. Article 19.
Other criticisms even raise the friction that this legislation would cause with the new free trade agreement in the region. “The need to obtain an authorization for the operation of the so-called relevant networks violates the provisions of the T-MEC in terms of national treatment, putting unjustified barriers to digital trade”, points out the Latin American Internet Association (ALAI) in its statement.
Morena’s digital battle
Monreal, the executive arm in Morena’s senate, with a majority in both chambers, has accumulated a series of projects to tie up digital services. Last year it tried to force platforms like Netflix to make at least 30% of their catalog made up of Mexican production. A year before, he promoted a reform to the Federal Law on Personal Data Protection to force platforms to execute the so-called “right to be forgotten”, the total elimination of content when any user requests it. On this occasion, having ruled out the fiscal route, the origin of the initiative comes directly from the presidential chair.
“The Statue of Liberty in New York is turning green with courage, because it does not want to become an empty symbol.” This is how Andrés Manuel López Obrador stated a few days after Twitter definitively canceled Donald Trump’s account -as well as Facebook or YouTube- for “incitement to violence” in the framework of the assault on the Capitol by his more ultras followers. The Mexican president spoke on January 14, and from there the legislative machinery began to get going. Monreal has acknowledged that it has already started conversations with technology companies. “Facebook was comprehensive and flexible and Twitter somewhat less,” he announced in an interview with EL PAÍS last week. At the same time, he has promised to open the debate to experts, academics, specialists and network users.
“The initiative has many inconsistencies and is above all a political message to large companies, an attempt to increase the pressure to cancel accounts in support of Q4 in the face of the June elections,” adds Reyes in the heat of recent Cancellations of accounts of the president’s followers on Twitter. The justification of the company was that it was “Misleading information in the profile of the account to carry out actions of spam, obstruction or harassment ”. López Obrador, for his part, charged the director of the company in Mexico, Hugo Rodríguez, accusing him of having worked for the PAN, the Mexican right.
Morena’s initiative bears some similarities to regulatory attempts in other countries. The US has been trying to adjust its legislation for a long time so that technology companies are responsible for the content published on their platforms. While the European Union, together with the OECD, seeks to impose the known as Google rate, new taxes designed to tax the activity of large digital platforms. “The difference is that the line in the rest of the world is being drawn up large general regulatory frameworks to solve a very complex problem. Morena’s proposal, however, sets super-specific rules to solve the specific problem of account cancellation, ”Reyes adds.
The initiative, which aims to place Mexico as a pioneer in guaranteeing freedom of expression, also contains several paradoxes. Mexico is the world’s deadliest country for journalists, with eight informants killed last year, according to the latest report by Reporters Without Borders. In addition to the serious problems of impunity in a country where 9 out of 10 crimes are not reported and almost a third of the prisoners have not yet been convicted. Another paradox is the shielding of the Federal Telecommunications Institute (IFT), while the executive is increasingly eroding other autonomous bodies, perhaps more suitable to fulfill these new control functions.
“The IFT is a technical body. These functions should be fulfilled by the National Institute for Transparency and Access to Information (INAI), but the trend towards the dismantling of autonomous bodies continues ”, points out Hugo Concha Cantú, researcher at the UNAM Institute of Legal Research. In fact, López Obrador’s plans go through a controversial reform to eliminate and modify some of the transparency institutions that would end up integrating INAI into the federal Cabinet.