Why does Bolivia want to regulate social media and ban anonymity online?

After a referendum to keep the ruling government in power failed, Bolivia explores a social media crackdown

There’s a new proposal in Bolivia to regulate social media, and it has digital rights activists up in arms (see conversations on Twitter with the hashtag: #RedesLibresBo). It hasn’t yet been publicly released, but it is being publicly discussed. Based on the details that are available, the new law would ban anonymity online, punish people who commit libel against public officials, and create a way for the government to monitor social networks for offenses.

It’s a broadside attack on the fundamental right to free expression in Bolivia, and it puts the democratic process there in jeopardy.

Why is this happening? Not long ago, Bolivia’s current president, Evo Morales, was accused of trading-in-influence to benefit a Chinese company that employed an ex-girlfriend. Shortly thereafter, a public referendum was advanced to reform Bolivia’s constitution to allow President Morales to run for a fourth term. The majority of the people voted against the reform, rejecting the possibility of reelection.

The ruling party evidently attributed this political defeat to the accusations of corruption, and to what they saw as a campaign of discredit and hate against President Morales that — according to their interpretation — was carried out using social networks, sometimes anonymously.

That’s when two members of the legislative assembly began to talk to the press about regulating the use of social networks in Bolivia, “to punish the defamation of public or private figures” and other crimes such as illegally collecting and processing personal information.

It doesn’t look good, does it?

What we know about the bill

As we note above, the text is not yet public, but Bolivian lawmakers Victor Borda and Leonardo Loza have shared details about the kind of regulation that is being planned. From what we can gather from their public statements, the bill would ban anonymity online; punish online defamation of private citizens or public officials; prohibit collecting and processing personal information without consent; and create a government office specifically to monitor social networks.

This is an omnibus bill created in the aftermath of a major public event — the failure of the referendum to extend the presidential term — and so it mashes together issues that are somewhat, but not entirely, related. Originally, there were likely different intentions and rationales behind each of the elements in the bill. Here’s a closer look at what each of the elements are and what they mean for digital rights in the Bolivian context.

The ban on anonymity

This element of the bill likely reflects the political interests of the governing party. As we noted above, public officials close to President Morales blame anonymous criticism for the defeat of the referendum that would have allowed him to extend his term. So anonymity naturally became a primary cause for concern for the government. Notably, it is also easy to link online anonymity to other crimes, such as fraud, child pornography, and human trafficking.

However, banning online anonymity is clearly an excessive measure that threatens human rights. To ban anonymity is to endanger free expression, since without anonymity many citizens might refrain from expressing their political opinions altogether for fear of retaliation. This and many other considerations with regard to anonymity and free expression have been well established in the first report by David Kaye, the U.N. Special Rapporteur on the Right to Freedom of Expression. It’s also notable that South Korea’s constitutional court affirmed the importance of anonymity in 2012 when it struck down a real name policy.

Criminalizing online defamation of public officials in Bolivia

Respect for the rights and reputation of others is one of the limitations to the freedom of expression, as recognized by several international treaties. It is true that President Morales was accused of corruption — a public embarrassment regardless of whether the accusations are true. Public officials have a right to protect their honor. But the reach of that right is limited for a public official vs. an ordinary citizen. The Inter-American Court on Human Rights therefore set a higher standard of tolerance for expression regarding public officials exercising their duties, since in that context, even slander or defamation can be a form of political expression that is worth protecting.

The Inter-American Commission on Human Rights recommended eliminating the offense of “desacato” (defamation against public officials) from Latin American criminal codes. That’s exactly what the Bolivian constitutional court achieved in a 2012 ruling, which means that the current government proposal is a worrying setback.

Prohibiting unauthorized processing of personal data

Representative Victor Borda says that regulating social networks is necessary to address the illegal collection and processing of personal data. It may be commendable to take action on this issue, but advancing a “one size fits all” bill with other unfortunate elements is not the right way to address Bolivia’s data protection problem. At present, Bolivia recognizes data protection as a constitutional right, and enables the writ of habeas data as a specific remedy, but lacks the comprehensive data protection framework necessary to properly regulate consent and make secure the collection and processing of personal information.

Monitoring social media in Bolivia

Last but not least among our concerns is a possible measure to create a national council to deal with “rights and obligations” online, with the power to “exert control over social networks” and investigate abusive behavior. We don’t have many details about how such a government organ might function, but monitoring social media is inherently a highly intrusive form of surveillance, ripe for abuse. As such, it would at minimum be necessary to apply very strict standards of necessity and proportionality to its activities, and to make these activities transparent. (You can read more about Access Now’s policy position on social media monitoring here and here.)

What can we do about this?

Right now, the most important you can do is spread the news about this proposal, citing your concerns about the human rights at stake. You can do that by sharing this post on Facebook or Twitter, using the hashtag #RedesLibresBo

For those directly involved in the policy debate and deliberations in Bolivia, Access Now has also put together a short policy brief (in Spanish) that details how this kind of legislation would negatively impact free expression, elaborating on the fundamental rights arguments included in this post.

You can also sign-up to receive action alerts on this and other pressing issues in digital rights online.

Read this post in Spanish.