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Draft law against election campaign flights on the Internet

A senator of the progressive government coalition is sounding the alarm: Uruguay is also affected by fake news campaigns by so-called bots. The deliberate spreading of lies in the country since the end of the dictatorship has been a crime.

Uruguay’s ruling party, the Frente Amplio (FA – Breite Front), is responding to the partly robotised lie campaigns on the electoral influence network. Democracy and the rule of law are in acute danger, warn FA representatives. Currently, candidates with radical neoliberal ideologies are coming to power on the American continent in this way, and right-wing extremist forces have been able to strengthen their social influence.

Journalists in Rio de Janeiro watch a Facebook live of Jair Bolsonaro. The right-wing presidential candidate uses the social media to create a mood against his left-wing rival Fernando Haddad.

Marcos Otheguy, Senator of the Frente Amplio, recently presented a bill against fake campaigns in elections. In his draft, he calls for a prison sentence of two to four years for this electoral crime. The new paragraphs are to be integrated into the existing electoral law. The offence covers any kind of fake news, be it written, songs, symbols, images, recordings or videos that deliberately mislead users.

The fear of lying campaigns in elections and the concern for democracy are certainly justified. Former President Barack Obama is said to have used these methods as early as 2012 before the runoff election. In 2016, the British company “Cambridge Analytica” stole personal data from 83 million Facebook accounts for Donald Trump’s campaign.

During the referendum on the peace treaty in Colombia in the same year, two marketing companies worked with false reports for the “No”. The opposition also successfully used the method in the election in Ecuador in 2017. In Chile, it contributed to President Sebastian Piñera’s election victory in 2017, and in Brazil, massive lie campaigns recently put racist Jairo Bolsonaro at the helm.

Senator Marcos Otheguy warns that the foundations of democracy are in danger. “In our opinion, there is currently no more relevant task than to engage in the defence of politics and democracy: It is clear that both in the region and in the world are under threat,” the left-wing senator told the press.

Even in ancient Greece, the right to speak in public was recognised as the basis of democracy. But the duty to tell the truth is also inseparable, as is the courage to expose the lie, argued Otheguy in his article in La Diaria on 22 November.

After the end of the dictatorship in Uruguay: ban on media lies

Shortly after the end of the dictatorship, a law was passed in the small country in 1989 that forbids the deliberate spreading of lies in writing, sound and images. The effect of controlled false reports in the media, with which the regime justified brutal repressive measures, had been understood as a central element of a dictatorship and its criminality.

This is what the representative of the people refers to. His initiative would not shake the previously valid media law, as it would concentrate on the new developments in the digital field, which were unthinkable at the time. The new technologies, the Internet, have opened up a dimension that could massively manipulate people’s perception of reality.

Dependence on the smartphone

A new generation of voters has grown up, who primarily draw their political views from short messages and video clips on Facebook, WhatsApp and Twitter. It almost looks like an addiction when, for example, 80 percent of Uruguayan public transport users are constantly looking at their smartphones. The impression is also repeated in the street scene.

Otheguy argues to the press:

Representatives of international institutions, Internet platforms, experts from the technical community and journalism, and many civil society organizations agree that false information is a major problem, especially in the area of election processes. They threaten the functioning of democracy and the rule of law.

The Uruguayan Regulatory Authority for Communications Services (URSEC) will now be given special responsibility for monitoring and controlling the digital Internet platforms of global communications.

Opposition calls for non-party ethics pact

The criticism of the senator’s proposal came immediately. The opposition National Party spoke of censorship. Their deputy Rodrigo Goñi presented a counter-proposal. According to his ideas there should be a “Digital Ethics Pact between all parties” to fight lying news and confusion campaigns. The step of the colleague from the ruling party was defeated:

It is an undemocratic initiative that restricts freedom of expression because it creates a criminal offence for citizens. This leads to censorship or self-censorship

In Goñi’s opinion, the fake news should be tackled with a broad approach: self-regulation should take precedence, citizens’ awareness should be sharpened, punishment not feasible. Experience has shown that medicine is worse than disease.

The Inter-American Court of Human Rights demands legal definitions

The author of the new text of the law opposes this. The Inter-American Court of Human Rights has clearly stated (according to Opinion No. 5/85) that any preventive measure or “censorship in advance” has the effect of violating freedom of expression.

At the same time, however, it established criteria for validly establishing a criminal offence in this area. According to the court, several requirements had to be met:

  • a. that the reasons for liability have been clearly defined beforehand,
  • b. that they are laid down by law,
  • c. that the objectives to be achieved by such a norm are legitimate (e.g. correct elections); and
  • d. that the grounds for liability are ‘necessary in order to achieve the (legitimate) objectives mentioned’.

According to Otheguy’s project, no prohibition should take place in the run-up to an information or representation of opinion, but only afterwards, with “conscious, accomplished action”, as it is also handled in the sense of the previous media law (No. 16.099) in Uruguay. His text was constitutionally correct and in accordance with the Inter-American Declaration of Human Rights of 1969.

According to the law, media lies are a criminal offence in Uruguay.

In addition, the Law on Freedom of the Press and Freedom of Opinion already states that the deliberate dissemination of false information which leads to a serious breach of public peace or to serious damage to the economic interests of the State or to its reputation abroad is a criminal offence. He shall be liable to a prison sentence of between three months and two years. To date, no one has spoken out against the law. Nor has anyone complained that it would restrict freedom of opinion and thought.

Thirdly, the new law creates a more precise standard, since the punishable behaviour must be intentional. In addition, it is now additionally necessary that the incriminated means are functional for the purpose (e.g. manipulations to change election results). Only then would they be classified as a criminal offence.

As a fourth point, the senator states that the offence can only be committed if digital Internet platforms of global communication are used, or with the help of a computer system or data transmission technologies. Offences in the area of classical media would continue to be dealt with by the Media Act.