https://www.accessnow.org:443/chilean-judge-rules-parody-twitter-account-not-a-criminal-offense/

Chilean judge rules parody Twitter account not a criminal offense

Last month, a Chilean criminal court dismissed all charges against Rodrigo Ferrari, who was charged in February with the criminal offense of “identity usurpation,” for allegedly authoring the twitter accounts @losluksic, @luksicandronico, and @andronicoluksic, Twitter accounts that parodied the activities of the Luksic family, among the wealthiest families in Chile.

From the beginning of his case, Mr. Ferrari maintained that he only authored @losluksic, mocking the family in what constituted a legitimate exercise of his right to freedom of expression; Ferrari denied involvement with the other two Twitter accounts.

In the final court hearing, Ferrari’s lawyer asked for the complete dismissal of the charges against Ferrari, on the basis that the account @losluksic was a parody, and not the usurpation of anyone’s identity. However, the prosecutor made an argument of implied guilt, making a statement to the press that loosely translates to, “we wouldn’t oppose the dismissal if we didn’t see a credible link entailing the publication (on Twitter).” In saying this, the prosecutor effectively demanded Ferrari produce evidence of an absence of involvement with the other Twitter handles in question–effectively denying him the presumption of innocence.

In her decision, the judge ruled that it was evident that the @losluksic Twitter account was clearly a parody, and that such ironic messages do not constitute “identity usurpation,” but rather a legitimate exercise of freedom of expression. The judge further ruled that there was no evidence connecting Ferrari to the other two accounts, and that therefore the case against him could not be sustained. The decision was not appealed by the prosecutor, nor the lawyers of the Luksic family, so the case is now closed.

This decision was a significant step forward for Chilean internet users, reinforcing the argument that there is no substantive difference between the “real world” and the “digital world” when applying the rights of freedom of expression and due process. This is a particularly important precedent when taken in the context of recent moves by different governments in Latin America to limit the exercise of fundamental rights in the digital environment.

As we have written previously, this case also raised the important question of how the US responds to a data request made by other countries through a Mutual Legal Assistance Treaty, even if those countries didn’t follow their internal due process standards, or in cases of minor offenses such as “identity usurpation.” In Ferrari’s case, the request was seemingly made on the erroneous grounds of ‘identity theft,’ which would have required the appropriation of the Luksic identity.

And as we’ve blogged about before, more and more countries are requesting data from ISPs, and with widely divergent standards of due process: Twitter’s semi-annual transparency report shows that only 19% of requests in the US were made using a search warrant. If Mr. Ferrari’s account data had been held in Chile, government authorities there would have had to obtain a search warrant to acquire his information, according to the Chilean Criminal Procedure Code, but his case file fails to reveal any sort of authorization or warrant approved by a judge.

Back in February, when this case was made public, Access filed a Freedom of Information Act request with the US Department of Justice and the Federal Bureau of Investigation to determine how the United States authorities handle requests under Mutual Legal Assistance Treaties. We are still waiting for the requested data. We’ll post an update with the data and their analysis when we hear back. While we wait, though, we celebrate this judicial decision in favor of Mr. Ferrari as a step towards the greater respect for human rights in the digital environment.

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