Digital apologism and civic space: the peruvian case | IGF 2023

Audience

The speakers expressed their gratitude multiple times to convey a deep sense of appreciation towards the recipients. Their repeated expressions of thanks reflected their sincere and profound gratitude. The speakers emphasised the importance of the recipients’ actions through the repetition of “Thank you,” showcasing the significance of their involvement. This repetition also conveyed a sense of urgency and intensity, as the speakers wanted to ensure their gratitude was properly communicated. Additionally, the repeated expressions of thanks affirmed the speakers’ gratitude and validated the positive impact the recipients had on their lives. By consistently expressing their appreciation, the speakers aimed to reinforce their gratitude and leave no doubt in the recipients’ minds about the depth of their thankfulness. In conclusion, the repeated “Thank you’s” highlighted the overwhelming appreciation of the speakers, emphasising the profound impact of the recipients. The repetitive nature of their expressions of gratitude reinforced the sincerity of their thanks, leaving no room for ambiguity.

Dilmar Villena

The Peruvian legislation on terrorism apology is facing criticism due to its failure to comply with human rights standards. One of the main concerns is that the current law does not require actual danger to be present for punishment; potential dangerous behaviour is sufficient for prosecution. This broad definition of what constitutes a threat allows for invasion of privacy and undermines the principles of proportionality and legality.

Furthermore, there is a sense of inequality in the criminalisation of the same action whether it occurs online or offline. This creates a discrepancy and can lead to unfair treatment and discrimination.

The lack of judicial reasoning in the prosecution of ICT (Information and Communication Technology) terrorism apology crimes is another significant issue. Insufficient steps are taken to verify account ownership during prosecution, and individuals can be punished even if they simply share or repost violent content without actually endorsing or supporting terrorism. Additionally, civil reparation amounts are standardised, disregarding any analysis of the harm done, further contributing to the perception of injustice.

The legislation’s broad and vague definition of terrorism apology also raises concerns about the potential suppression of freedom of speech. The public has been encouraged to report terrorism apology to a specific email address, which has the potential for misuse and may lead to the labelling of critics or government protesters as terrorists. This can stifle criticism against the government and limit free expression.

It is argued that there is a need for a careful and specific definition of terrorism, especially when it involves freedom of speech. The current situation in Peru demonstrates the potential for the suppression of speech against the government under the guise of counter-terrorism measures.

Overall, there is a concern about the possible dangers of excessive and poorly defined anti-terrorism laws. While legislation and regulation are often seen as solutions to perceived terrorist threats, they should be crafted with caution. The definition of terrorism and terrorism apology should be precise and account for the protection of freedom of speech rights. Striking a balance between counter-terrorism measures and the preservation of fundamental rights is crucial.

Camila

The analysis delves into various aspects of state protection, democracy, freedom of expression, and terrorism in Brazil. It emphasises the need to maintain a delicate balance, considering the unique circumstances of each jurisdiction. One key issue highlighted is the legal uncertainty in cybercrime cases, which arises from the wide range of potential punishments that judges can impose. This ambiguity has implications for fair and consistent application of the law in such cases.

Another significant challenge discussed is the definition and proof of terrorism, especially when examining communications. Brazil has witnessed cases resembling the Capitol invasion in the United States, with individuals being accused of attacks against the democratic state and terrorism. However, accurately determining evidence and establishing proof in such cases is a complex process. This difficulty raises questions about the effectiveness of current methods in defining and proving acts of terrorism based on communication-related evidence.

Furthermore, the analysis examines a proposed platform regulation bill that includes a duty of care provision. This bill addresses issues like content moderation, platform accountability, and transparency. It bears similarities to the Digital Services Act and aims to regulate online platform activities. However, concerns have been raised regarding the platforms’ ability to accurately identify content that constitutes terrorism. This issue raises doubts about the bill’s effectiveness in achieving its objectives and ensuring proper handling of terrorist-related content on digital platforms.

In conclusion, the analysis emphasises the importance of striking a balance between state protection, democracy, and freedom of expression while considering the unique contexts of different jurisdictions. The legal uncertainty surrounding cybercrime cases, the challenges of defining and proving terrorism based on communications, and the potential drawbacks of the proposed platform regulation bill are significant concerns. These observations shed light on the complexities involved and highlight the need for further examination and consideration to develop appropriate and comprehensive solutions.

Dilmar Villena:
expression of internet, taking into account the Peruvian case. Right now, well, like from four or five years ago, we have political unrest. And this is due to have some issues with freedom of speech on the internet. And we are going to be talking about the prosecutor of the crime of terrorism apology through ICT in Peru, in this case. I think that we need a little of historical context when we are going to be talking about this. During the 1980s, Peru experienced an internal armed conflict, primarily instigated by the terrorist group called Shining Path, but also involving the revolutionary movement known as Tupac Amaru. This group, Shining Path, initiated an armed uprisings against the Peruvian state, with the aim of overthrowing the existing legal and constitutional order at that time. Shining Path, this terrorist group, had a defined ideology, identifying themselves as Marxist, Leninist, Maoist. And their leader, Abimael Guzman, considered himself the fourth sword of Marxism, adding the Gonzalo thought to these three ideologies. But in reality, far from bringing a guerrilla movement seeking to promote a proletarian revolution, this indeed was a terrorist group. And this group committed numerous human rights violations and attacks, not only against Peruvian state, but also against unarmed civilian populations. They particularly targeted indigenous and native communities. Shining Path had a deeply racist ideology and aimed to exterminate the Andean and Amazonian indigenous people, viewing them as obstacles to Peru’s historical development. Throughout this internal conflict experienced by the Peruvian state, there were numerous human rights violations, not only done by this terrorist movement called Shining Path, but also done by the Peruvian government itself. Ayacucho was the region that suffered the most and was the most affected by this terrorist group, and also by this violence caused by the Peruvian state. Example of this includes the Lucanamarca and Soras massacres perpetrated by Shining Path, but also a Comarca massacre carried out by Peruvian state. The truth is that this period in Peruvian history led to a significant loss of life and led to a loss of thousands of lives that we haven’t seen in recent history nowadays. In order to combat these terrorist actions in Peru, our criminal code typified these type of crimes. And when we talk about terrorist offenses in Peru, it has four elements. One, it requires that anyone who incites, creates, or maintains a step of anxiety, alarm, or fear in the population. Two, engages in acts against life, body, health, personal freedom, and security, public building, roads, all of that. Three, it needs to be used firearms, material, explosive device, and any other means. And four, it needs to be capable of causing havoc or serious disruption of public peace or affect international relationships. But recently, in 2017, the crime of terrorism apology was recently put in our criminal code. And it said that if the exaltation, justification, or clarification is made for the crime of terrorism or any form or anyone that has been convicted by final judgment as author or participant of this crime, it says that the person should be punished with no less than four years or eight years in prison. But when this exaltation, justification, or clarification is done through ICTs, like we can say Facebook, Twitter, I don’t know, SMS, or anything that comes through technology, the penalty shall be no less than eight years, no more than 15 years. So we can see here that if you commit the crime of terrorist apology through ICT, your punishment will be far big than the one if you do it like a norm in a public square. In the first case, you’re going to have a penalty of no less than eight years. And in the second case, you’re going to have only a penalty of four years. So when we talk about terrorist apology and all the crimes related to freedom of speech, there are some jurisprudential and human rights criteria developed by our Inter-American Commission of Human Rights that is needed to be taken into account when we talk about terrorism apology. Indeed, in the report on human rights made by the Inter-American Commission on Human Rights, it says that for this offense to be compatible with freedom of expression in the Inter-American system, it must, at minimum, incite violence or similar actions and to have a likelihood of success. So it’s not accorded to our Inter-American Convention to punish terrorist apology just only by saying so. But you must incite violence. And also, this incitation needs to be a likelihood to succeed. And also, it establishes a set of criteria in order to apply the penalties for the offense. When the judge is applying this penalty, it needs to take into account some certain kinds of criteria. For example, the context of the situation. If it’s done through the middle of the conflict, also it needs to take into account the position of the individuals that make the expression and their labor or influence in society. It’s not the same common civil doing committing this crime or is being doing by a politician or maybe for a military chief. It’s also needed to be taken into account the harm caused or that could be caused. And it comes together with the minimum sets explained before. In order to sanction this crime, you need to incite violence and a likelihood of success. And when this happens, you have to take into account how many harm this caused. Another criteria is the utility of the information given. It’s not the same like, I don’t know, viva Presidente Gonzalo, that giving some information exactly about what did he done, what have he done, or what all the shining parts have done, and the type of communication medium used. But in the case of Peru, the Peruvian constitutional court, when have taken into its court a case related to terrorism apology, it said that the medium used must be capable of achieving publicity, spreading praise to an undetermined number of people, and also that the exaltation affects the democratic principles of plurality, tolerance, and the search of consensus. And this is very important. The Peruvian constitutional court says that it is not needed to have an actual danger. The Peruvian constitutional court interprets that in order to punish this crime, what this crime seeks is the potential dangerous behavior, rather than a specific harm or legal interest. So in the Peruvian case, there is no need to do to apologize the terrorist crime, but and be able to cause actual damage. Only it’s needed to, I don’t know, just to say to praise the terrorist person, and you will be punished by doing that. And also addresses the need to develop criminal policy in response to our reality. So there is, in the Peruvian case, we have these two differences. The Inter-American Commission says that in order for this crime to be compatible with the Inter-American Human Rights Convention, it needs to have potential and actual danger to human lives or public goods. But for the constitutional court, it is not needed, because it only punishes a general potential danger behavior, not the danger itself. So here we have our first, we can find on the Peruvian legislation that when we talk about freedom of speech, like the Peruvian parameters are not in accordance with the Inter-American parameters in this matter. And also, when we talk about freedom of speech parameters or human rights parameters in general, we have the Joint Declaration on Independence and Diversity of Media in the Digital Age of 2018, issued by the Special Reportees on Freedom of Expression. And what did it state? It said that states must refrain from enacting unnecessary or disproportionate laws that penalize or impose harsher sanctions on online expression compared to its offline equivalent. It means that when states criminalize some action, they must avoid, just because it’s done online, to have more strict penalties or higher penalties, rather than it’s done, I don’t know, in real life, we could say. So we can say here that also, Peruvian legislation is not in accordance to these human rights parameters. Because it’s like, if you do an apology of terrorism in a street or in a public square, you’ll only be sanctioned for four years. But if you do it through internet, you’re going to have eight years of penalty without taking into account any specific feature that could happen in this situation. So what do we see? That there are some issues with application of terrorism apology through ICT established in our criminal code. First, it can violate the right to equality. Why? Because if someone commits this crime in a public square, he will be punished with four years of prison. But if I do the same through internet, I don’t know, I have an Instagram account with one follower, and no one sees, I do the terrorism apology, I will be punished for eight years. So is this difference on the treatment of this crime reasonable? Why is this done? So there’s a first problem here of equality. Same actions are not treated the same, even though it isn’t taking into account how this could damage effectively. Also, the broad definition of what constitutes ICT is also a very big problem. Why? Because ICT can be committed to what we understand as ICT. It could be SMS. It could be an email. It could be WhatsApp. It could be telegram. So in order to prosecute this type of crimes, we could say that police or prosecutors will be entitled to access to private communications only because this terrorism apology is done through ICT. And at this point, we can have a reflection about if I have a private communication with a friend, and we are talking about it, and my friend supports what ShinyPath has done, as long as he supports what ShinyPath has done and he does it through WhatsApp messaging or through SMS, it will be possible to be punished through the prosecutor. So there’s also an issue, a very big problem here, related to privacy and in the communications. And also, this type of crime doesn’t take into account the diversity of platforms that we have right now on internet, because it’s not the same publishing or sharing some information on LinkedIn, or on Facebook, or on Twitter, or on Instagram, or whether we have a public account or more a private account. So this is a big problem here. Also, because it doesn’t take into account that platforms themselves have moderation systems that could lead to take down content before it spreads all around. For example, let’s say that someone committed the crime of apology through Facebook, and because it’s related to some kind of violence or terrorist group, the Facebook moderation system takes it down, takes that content down. So here, we are going to be having trouble. Prosecutors will be able to punish these type of actions, even though the content didn’t get to anybody because Facebook took it down. So this broad definition could also lead the prosecutor to punish some terrorism apology that haven’t took anyone to know what was talking about it. So this is the general legal and jurisprudential meanings we have about this crime. So how has the crime has been perceived in practice? At Diperderecho, we have done some research about how actual prosecutors and how actual judges were judging this type of crimes, terrorism apology through ICT. Here, we have a study of how the number of reports of ICT terrorism apology failed to be recognized by the U.S. Supreme Court. So here, we have a study of how the number of reports of ICT terrorism apology failed to be recognized by the U.S. Supreme Court. to the public prosecutor’s office. We can see that from 2019 to 2022, it doubled by a lot the count of reports of ICT terrorism fielded to the public prosecutor. And for 2023, on June, it was around 100 reports. What is also worrying about the prosecutor of this crime is, as you know, on December of past year, we have social unrest in Peru. This led to the Ministry of Interior to post this on its social media, telling people to report if they see some kind of terrorism apology through internet. They tell people to report, and they say that you could report these type of crimes to a specific email account. And this email account that people could report this terrorism apology was this, the one we can find here. And what happened? We asked for information about this email account and the number of reports that it received. 96% were dismissed. Actual cases that prosecutors have in their desk are like 2% of the cases. And why is this worrying? One will ask, why the Ministry of Interior wanted to prosecute more this crime through internet? And what happened on December of the past year, on January, most of the people that were protesting were marked by the government as terrorists. And without being actually terrorists, there were just people that were protesting, but government said that they were terrorists. And what happened is that everybody that was against the Peruvian government was marked a terrorist and were prosecuted. In this case, we have one case study. We were going to tell the person that was committed with this crime, Rodolfo. He was a student, 22 years old. What happened in this case is very important. Why? Because when we read the judge’s resolution, we can see that his Facebook account is actually accessible. Anybody could get this Facebook account. And what we could see is that this person that is being committed with this crime, he was a far-right person, a militant. So all of his posts was related to far-right or right ideology. And in his defense, he said that his account has been hacked, that he didn’t actually post the publication that has led him to have eight years of effective imprisonment. And what the prosecutor did in order to ensure that he was the one that actually had done this kind of post, he did some anthropology research and said that as long as the one that appears in the Facebook profile, the Facebook photo profile, is the same as the one that is seated here in the court, is the same, we can say that he committed the crime. That was the form that the prosecutor said that he indeed committed the crime. And after all of that, the verdict was that he received eight years of effective imprisonment and like $2,000 in civil reparations. We can see here that this was the post that was shared by this person in his account. And what we can see is he shared information about a Facebook page that is called Bandera Roja, we can say. He didn’t write the post himself, the account shared that information. That we can say that, yeah, he’s committing apology of the terrorist group and the terrorist person, Vimel Guzman. But the defense said that he didn’t post it. And we can ask why the attorney or the prosecutor didn’t judge or didn’t seek or didn’t take into trial or try to investigate who was behind this Facebook page, Bandera Roja. He didn’t do it. So even though we’re having all this information, this lack of judicial reason, we have this verdict of eight years of effective prison. Right now, we don’t know effectively if this person indeed committed the crime, but right now he’s in prison for eight years. When we talk digital apology, so how is the judicial reasoning here? There is a lack of account ownership verification in this process. The unlawful conduct that is being sanctioned here is the praising terrorist leaders and questioning and criticizing their trials. What left this person and what this post says is that that criticize the trial that come into account for Vimel Guzman. If it’s done through social media, simply posting or sharing content is an effective way to spread praise. Doesn’t matter if you indeed wrote it or you just share it. Maybe you could share it not on purpose, by mistake. It will also be prosecuted by this crime. And when we talk about civil reparation, we’ve reviewed four or five judges in this case, judicial cases. There was the same amount in all these five sentences. The amount was the same. Approximately $2,000. But there is no further analysis is conducted beyond confirming non-material harm. So why do ask for $2,000 civil reparation without analyzing if, I don’t know, the post on Facebook caused more harm through, or caused more harm rather than posting it on Instagram or posting it through X? We don’t know. In all the cases, it had $2,000 reparation without taking into account these specific matters. So at this point, we ask, are we against a persecution of dissent and infringement on freedom of expression of internet? We know because of the social unrest that happened in Peru on December or January, President Boluarte said that the people that were protesting were marked as terrorists. Also, one of the most influential congressmen said that all the people that are protesting are terrorists. So we have this problem here. If you say that everyone that is protesting against the government is called terrorist, and also anyone can report any type of criticism through the government done by social media, and you can report it to this specific email, well, what we are going to have is people no more is going to criticize the government through internet. So we can see what police indeed investigates in these cases. And it’s the problem that we have. At Diperderecho, we have fun here. Actual legislation that we have on terrorism apology doesn’t respect human rights standards. And it’s so wide open that everyone could be prosecuted by this crime. And it instigates to people that can never to not be more critical about Peruvian government no more. So that’s what I want to share with you. Here, Camila is going to have some comments about what is happening in Brazil, what we can take into account when we talk about terrorism on ICT.

Camila:
Thank you, Dilmar. Thank you for the invitation. Also, I have read your article about these issues. And it’s important to have this kind of balance of different rights when we are talking about this, because it’s complex. We have to consider the concrete case. And what we see is that we don’t have the silver bullet solution, but what is being applied is definitely not the best option. So we are trying to balance the protection of the state, the democracy, the freedom of expression. And each jurisdiction have a different way to balance it. But it’s important that you brought some inter-American parameters to do this. So we have some parameters that have to be followed, and they are not being followed. In Brazil, we also have this anti-terrorism law. It’s applied a little different, because it’s about exposing someone to a danger, to the peace, to the public safety. But in cybercrimes, we don’t have any specific amount, and you don’t have any specific sanction for cybercrimes. It’s a range. So you can be convicted for an imprisonment of 12 to 30 years. And when it is committed through cybercrime, the judge sees concretely how much is the imprisonment. This brings a challenge of legal uncertainty. So if it’s not in the law, the judge can also apply something that might be not that, not considering that much the specific case, but it has to be considered. So we have two opposite sides, too strict on that, but also too broad on that. So when we are talking about this beyond enhancing legislation, we also have to think on how we can qualify better the judges that are applying this kind of law. But to end, I would just like to talk a little about the Brazilian context, because beyond the law, we had recently some cases of, we had like a capital invasion in Brazil in January. It was 8 January, and these people are being sued also for attacks against the democratic state and also terrorism. We have a challenge on that, on how we deal with that, and how also the judges try to make the responsibilization of these people by assessing their communications. How do they prove that? And this is a challenge. This is one side. In the other side, that is also a consequence of this context, we have a platform regulation bill in Brazil. It’s similar to the DSA, which is the Digital Services Act, is related to content moderation, to responsibilization of platforms, to transparency. But we have two main dispositions that are important. The first one is duty of care, and the second one is the, how can I say, the safety measure when you have an imminent danger. The duty of care has to consider, has to make platforms diligent and mitigate illicit practices within the scope of their services, making an effort to improve, to combat the dissemination of illegal content generated by third parties. And this diligence also includes terrorism. From one side, duty of care is important for platforms. But in the other side, how to do that concretely? Do the platforms have the power to say what is terrorism and what is not? This is one challenge. And the other challenge is that they might be responsibilized, like a civil liability, when there is a specific case of imminent danger. So this is, well, it’s not a law. It’s a bill that we are contributing also in EDAC, in Digital Rights Network in Brazil, Coalizão Direitos na Rede. And it’s a challenge. How can we balance on this? Because from one side, people want to make these people liable for their action. But on the other side, we cannot be extremely surveillance. We cannot have surveillance. We have to consider the rights and how to balance it. I know that I didn’t give answers, but it’s great to hear from the Peruvian reality and also to understand in Brazil how we can compare them both. But it’s a challenge that we have to face in practice. So to be fast, that’s my contribution. Thank you for the invitation.

Dilmar Villena:
Thank you, Camila. And what we can think about is when we talk about terrorism, it’s very dangerous to have a wide definition of it because it can lead us to suppress critical point of views. And when we talk about freedom of expression, we have to be very careful about what type of speech can be suppressed or what kind of speech cannot be suppressed. So in the Peruvian case, we can see that effectively, some kind of speech and the speech against government is being suppressed right now. And what I can say is most of the times, we can think that legislation or regulation is needed because, I don’t know, there is a certain attack against one politician and these people is a terrorist, but it’s also needed a specific definition of what is terrorism. And when we talk about terrorism apology also, it’s needed to, it’s more difficult because we are not talking about actions that constitute terrorism, but kind of certain type of speech. And that’s it. Thank you very much, Camila. Thank you very much for being here. So I don’t know if we have any questions here or, or because the panel is ending right now, if we have any questions, we can talk outside and thank you very much for being here.

Audience:
Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.