Strategic Litigation in LATAM on Gender Digital Violence | IGF 2023

8 Oct 2023 03:00h - 04:00h UTC

Table of contents

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Full session report

Speaker from TEDIC 1

The discussion gravitates towards the pressing issue of online gender-based violence, linking it inextricably with two essential Sustainable Development Goals (SDGs), namely SDG 5 which promotes Gender Equality and SDG 16 focusing on Peace, Justice, and Strong Institutions. It is underscored that this form of violence isn’t confined to just human rights defenders or journalists, emphasising its expansive and pervasive nature.

A key topic in the discussion centres on the crucial need for more robust and proactive regulation of online platforms. The argument asserts that reliance on intermediaries for content removal is inadequate, and instead advocates for the implementation of more dependable tactics. This approach carries a positive sentiment, proposing that platforms should act swiftly, with their community standards being more accessible, to effectively combat online gender-based violence.

Proposing an innovative solution, the importance of a centralised repository for all regional or national strategic litigations pertaining to online gender-based violence is highlighted. Whilst it’s acknowledged that such a mechanism may not fully exist yet, planning is underway for a workshop to engage individuals worldwide involved in some capacity with this issue.

Moreover, the conversation strongly advocates for a collective approach in dealing with this challenge. By forming a global coalition, efforts can be united in defining common ontologies around online gender-based violence. This strategy reiterates the universally inclusive sentiment attached to SDG5, emphasising that working collectively and capitalising on information provided by organisations like the Women’s Rights Online Network could usher in more effective solutions.

In summation, the discussion illuminates the gravity of the problem of online gender-based violence, advocating for more stringent platform regulation, collaborative efforts, and innovative solutions like a centralised location for strategic litigations. The essence captured here is that only through united and focused efforts can this form of pervasive violence be effectively addressed, thereby fostering gender equality and promoting peace and justice.

Lia P. Hernández

The issues of online gender violence and ineffective digital rights regulations create significant stumbling blocks in Panama’s public administration and judicial system. The problem arises from inefficiencies and a lack of necessary understanding about digital rights and gender perspectives within the justice administration, leading to hindrances in processing cases, corroborating claims, and revisiting filed lawsuits. This gap in the system compels a strategic overhaul and reinforcement of the approach towards digital rights.

Existing laws in Panama regarding informatics offences, still in place from 2013, are outdated and inadequate. This inefficiency engenders trouble for victims and judicial employees alike, obstructing their aptitudes for effectively navigating the legal environment. As such, there exists an urgent requirement for updated legal systems capable of responsibly managing cases of online gender violence.

Ipandetec, an organisation focusing on digital rights and technological policy, is actively involved in strategic litigation and providing legal advice for victims of online gender violence. They have worked on and brought forth cases of online harassment, including one involving a young female victim of harassment by an ex-partner. Ipandetec has emerged as a pivotal force in this arena, persistently advocating for a comprehensive upgrade of the digital legal and regulatory framework. This upgrade will not only protect potential future victims of online harassment, but also aid public ministers and judicial employees in discharging their obligations.

When contrasted against regions like the US and EU, content moderation in Central America is notably slower due to the lack of firm data protection legislation. This deficiency results in delays and inefficiencies in responding to requests to remove inappropriate content from social media platforms, exacerbating the problem of online harassment and violence. Based on this shortfall, there are strong recommendations for Latin American countries to adopt and enforce substantial data protection laws in line with the General Data Protection Regulation (GDPR) standards. Such an implementation could create an environment in which victims receive better protection, and digital platforms are held to operate in a responsible manner.

Despite the international use of digital platforms like META and Twitter, it is crucial for these platforms to treat every region equitably. The issue of online gender-based violence is a grave one and highly apparent, particularly in Central America and the Dominican Republic. Establishing strong collaborations with authorities and prosecutors, as seen in Panama, Guatemala, and Costa Rica, can help address this gap continuously.

Significant progress in data protection has been marked, with two guidelines for the use of information in cases of online gender-based violence being introduced recently by the data protection authority in Panama. This signals the crucial role of data protection in curbing online gender violence.

During the discussions at the U.N’s cybercrime convention, issues related to child and woman protections online held the spotlight. While it was acknowledged that numerous cases exist, there is a tangible lack of proper regulations for ensuring protection. This consensus on the urgent need for protective regulations reiterates the global integrated endeavours required to plug the gaps in digital rights and online protection.

Audience

The analysis reveals several pressing concerns related to online gender violence, comprehension of technology, and the legal perspective on gender equality. There is a prevailing lack of knowledge and understanding of technological operations and gender violence approach amongst judges and attorneys within Latin America. This deficiency not only stymies the effective litigation of online gender-based cases, but also hampers the prospects for gender equality. Such infringements could be mitigated to a certain extent through comprehensive legal reforms. These alterations would necessitate judges possessing an in-depth understanding of technology and applying a gender-based perspective in administering justice.

The prevalence of online gender violence is exacerbated by instances multiplying during the COVID-19 pandemic, particularly in Indonesia. To combat this growing humanitarian issue, it’s been suggested that efforts should concentrate on securing the removal of online content that infringes upon human rights.

However, cultivating gender sensitivity in legal systems isn’t straightforward, even when supporting legislation exists. Despite the recent passage of an anti-sexual violence law in Indonesia, a shortfall of gender perspective amongst judges, police, and prosecutors lingers. This gap highlights the necessity of not only enacting supportive legislation but ensuring its appropriate application on all legal levels.

Another complication in the fight against online gender-based violence is the lack of easy access to and organisation of resources related to past litigation cases. Enacting measures such as better documentation and storage of these resources could greatly enhance efforts to combat online gender violence.

The potential establishment of data protection commissions or government regulators could also offer a significant solution, though the feasibility of this approach appears to differ greatly among distinct national contexts. Nonetheless, the exploration of such protection methods marks a crucial step towards tackling online gender-based violence.

Moreover, the analysis emphasises the importance of developing effective strategies to counter online gender-based violence. Prominent resources recommended include ‘La Violencia Digital’ Israel website and the Web Foundation’s ‘Women’s Rights Online’ Network. These offer crucial strategic litigation information in the fight against online gender violence. In line with this focus, Brazil’s law, ‘Marcos Civil of Internet’, was praised for its usefulness concerning the responsibility and accountability of online content. Internet providers aren’t held accountable for uploaded content until they’re notified of harmful material. The providers could potentially be held responsible for indemnification should they fail to react to the notification, consequently leading to a reduction in irresponsible online content.

In summary, multicultural action across various sectors will be necessary to tackle the complex issue of online gender violence and its underlying causes. However, through carefully structured judicial and technological education, stricter legislation, better access to litigation resources, and the implementation of effective strategies both nationally and globally, significant strides can be made towards addressing this pressing issue.

Hiperderecho

Hiperderecho, a pioneering legal organisation, emphasises the urgent need for authorities, including judges and solicitors, to enhance their knowledge of technology, digital rights, and gender perspectives. This thrust stems from the severe challenges victims and organisations encounter in seeking justice for online gender violence cases, which is largely due to the pervasive lack of technological knowledge and antiquated regulations pertaining to informatics crimes among current justice system operators.

Importantly, Hiperderecho believes the solution lies beyond simply employing full-time solicitors or instituting legal reforms. Instead, they propose a comprehensive approach combining law enforcement and education. This approach necessitates authorities to amplify their understanding of how technology operates, coupled with an application of a more nuanced gender-based perspective on justice. Key action items include updating outdated regulations to reflect contemporary digital realities and incorporating a gender-based perspective within judicial practices.

In line with this initiative, Hiperderecho has strategically partnered with Meta, providing them with the ability to facilitate the removal of harmful content from all of Meta’s online platforms. This initiative is a notable front in combating online gender-based violence, although the task of completely eradicating such content from the broader cyberspace remains a significant challenge.

In their relentless battle against online gender violence, Hiperderecho deploys dedicated legal teams. These professionals specialise in strategic litigation, tirelessly advocating and propelling forward cases in support of victims who typically lack the financial capacity to independently seek justice.

However, Hiperderecho admits that there are opportunities to augment their processes within their operation. Specifically, they acknowledge that the creation of a litigation case repository could augment efficiency within their operations. As it stands, all their decisions and cases are only accessible via their website.

Moreover, while Hiperderecho has yet to engage with data protection authorities concerning online gender violence cases, they recognise the potential benefits of doing so. They are interested in exploring this approach, acknowledging its prospective role in protecting victims of online gender violence.

In summary, Hiperderecho’s work underlines the intersectionality of technology, law, and gender violence, reinforcing the necessity of multidisciplinary approaches in seeking justice. They remain committed to championing the rights of victims of online gender violence, bridging the knowledge gap within the legal sector, advancing regulatory updates, and exploring innovative strategies, such as content regulation and engagement with data protection authorities, to alter the landscape of online safety.

Session transcript

Lia P. Hernández:
If I need to speak in English, I can’t speak in English well. My name is Leigh Hernandez. I am a member of the advisory board of Ipandetec. Ipandetec is a digital rights organization based in Panama City, but working digital rights advocacy research in Central America and Dominican Republic. I’m going to talk about our experience on strategic litigation on cases of online gender violence based in Panama, especially. We have presented two cases in Panama in the framework of our project Seguras en Línea. Seguras en Línea is a gender perspective project. In the second part of the project, we started a special phase of initial legal advising in Central America. We are helping two people in Panama to present it to the public minister like a claim because they have been victim of online harassment. The third case is about an influencer. This is a very famous influencer in Panama. She was victim of online harassment for the girl from the diverse community. So we presented in the public minister of Panama a claim because she was being victim of online gender violence. But the public minister of Panama said that that is not online gender violence because the gender violence is only when a guy, so a man, is attacking a girl or when a girl is attacking a man. In the case of the people from the diversity community, doesn’t exist that case. So, we started a new claim against their privacy, their intimacy, and their honor, and the prosecutor accepted this claim. But the problem is that the public administration and the administration of justice in Panama, as most of our countries in Central America, they are not very efficient. They don’t know about this topic, they don’t know about digital rights, they don’t know about gender perspectives, so it was very difficult for us. We were trying to push the case, presenting proof, going to the private psychologists to analyze her, that she was a victim of online gender-based violence, she had anxiety, and all these documents, we presented this document to the prosecutor, and he said that in their opinion, it wasn’t a proper case of privacy, intimacy, or crime against her honor. So, they filed the case, and now we are trying to reopen the case, because we think that the only way to generate precedence in our countries is still struggling against the system. Unfortunately, we don’t have proper legislation about informatics crimes, informatics law. Panama is the second country in Latin America that signed the Budapest Convention, but our regulations have been upgraded since 2013, so we have three years trying to upgrade the informatics crimes regulations in the country. So it’s a problem, because it’s not just a problem for the victims, it’s also a problem for the public minister, it’s also a problem for the judicial employees, because they don’t have the resources. to follow the crimes, that is their main function as a public and justice employees. So we still continue working in this kind of process in the countries and we have another case, the case this with another organization in Panama and it’s a case of a girl that she was victim of online harassment, the part of her former partner and her former partner was blackmailing her to publish or posting their pictures on social media. Actually, he sent her pictures in a WhatsApp and Telegram group and we still with this process, we are helping her with some funds from our project to support the case and I hope that in the next month or maybe in the next year, we can see one of you in some of this kind of event and tell you that we have won the case but this is something is very difficult for the civil society organization also for the victims because if we don’t have the legal resources, if we don’t have like very strong law or like a legal and regulation framework upgraded, updating regulation is very difficult. So for that reason, we request to the authorities, we request to the congresswoman and congressman in our country that is very necessary to upgrade the our digital legal and regulatory framework because now this influencer and this girl was victim of online harassment but maybe tomorrow, your sister, your daughter, your mother or your friend could be the next victim. So thank you so much and if you have any question, I will be here till the end of the session. dialogue and conversation and this is a part of the conversation so a lot of telling stories and a lot of truth in public and private glory.

Hiperderecho:
Thank you very much, Lucia, and thank you to all of you for being here. I would like to start by saying that we have a lot of problems in Latin America region, what do we have is a lack of knowledge on how technology works and also a lack of knowledge on gender violence approach when authorities like judges or attorneys check these cases. So what I can think of our project is not only having a group of full-time judges and attorneys applying the technical laws, and implementing legitimate reform , our criminal jars or our criminal codes in our legal jars. So we have to be able to establish on how technology works and also able to apply gender-based perspective on justice. So maybe I would like to ask Leah here , what else will be desired or maybe in our panel, what else will be desired? To be able to have the digital violence, gender-based digital violence. Anyone?

Audience:
Thank you. Hola, buenas tardes, soy Damar de Indonesia. I can’t speak Spanish much, but learning from what happened in Indonesia, we have a lot of online gender-based violence cases during the COVID-19. And many of the victims, it’s actually not so much into the litigation process, but they’re asking more on the takedown, the content from the platforms. So I’m going to ask the experience from Latin America, is there any effort to doing this conversation or process with the platform to take down the content? Because that’s the hardest part. Other thing than that in Indonesia, we are so lucky because we are already past the anti-sexual violence last year, because the existing regulatory frameworks before didn’t accommodate the victims of gender-based violence, but lucky that we already have the law now. But I’m agree with Dean, the law itself didn’t solve the problems because judges, police, and prosecutors, they didn’t have the gender perspective. So they didn’t understand that they can use this anti-sexual violence to accommodate the needs from the victims. So that’s learning from Indonesia. And I hope probably you can answer the first questions regarding that. the platform, thank you.

Hiperderecho:
Well, thank you, at least in the case of Peru, we have a partnership with Meta, that when we speak these images that can go through these all Meta platforms, we can send and have a takedown from this kind of, when we have, we take into account that some kind of these images are, you know, on its platform, but it’s a very big problem when we talk about internet, because once the image, or I don’t know, the video is there, taking absolutely it down is almost, I don’t know, we will say impossible, because it can be anywhere in any website, so it’s important, I think, to have these connections with platform and other website that comply with some regulations, but I think it’s a very, very big gap with some organizations here that we can directly speak with another platforms to take down this type of content. I’m thinking about, I don’t know, content or material, explicit material that can be uploaded to OnlyFans or other similar webpages, but it’s a very big, big task we have here.

Lia P. Hernández:
Well, in the case of Panama, mainly in the case of Central America, this is one of our main concern, because we have a very close relationship with the platform representative for the region, from Central America, actually from Facebook, well, Meta and Twitter, they are based in Mexico City, but we have contact of offline, but the problem is that there is time to response of our request. are not the same, their time of response of the European Union or United States. So, for example, in the Data Protection Agency in Spain, they have a special project that the Data Protection Agency is in communication with META for asking them to take down information from the social media. But we don’t have that kind of project with our other protection authorities in Latin America. So maybe it’s a good opportunity to copy, to replicate the best practice of other countries in the world. But it’s also a case about our regulation, because we don’t have very strong regulation like in the European Union. You know, we don’t have the GDPR. Most of the countries in Latin America, well, at least in Central America, they don’t have a data protection law. So they try to, but they are not working the proper work in our region, because they don’t have like a regulation that they enforce them to act immediately. So let’s see if the thing change in the next years, but I think that it’s very important that the META, Twitter, or the digital platform, they can’t, they shouldn’t make a difference between our regions and other regions in the world. Probably it’s the same in Indonesia. I don’t know. My main recommendation is still in contact with the social media. If you have like a friend or a partner in the social media companies, in the big tech companies, have a contact with them. Actually we have one that we all the time send him to his Instagram, like a screenshot of the post, a publication, a tweet to him. But unfortunately he was victim of the layoff in the last March, so we don’t have this contact anymore in META. And that’s it.

Speaker from TEDIC 1:
Hi, I’m sort of like part of this panel as well, in a way, I’m also part of TEDIC with my colleague Mari Carmen. And I think that just to add on the reflections of the panel, I think that at the end, we need to push to move forward and not have this model that relies on intermediaries to make sure that content is taken down in issues where a victim is asking for help on cases on online gender-based violence. Because in the example of the trusted partners that is like this model that Meta has been using for the past years, you’re very limited in the type of actor that you can help, right? So the problem is much more bigger than just human rights defenders, or perhaps journalists who are suffering online gender-based violence at different levels. And like the example that Leah is also mentioning, although I must say that it’s probably good to have this model where a data protection agency has a direct link with Meta, the problem of online gender-based violence goes beyond data protection in general and use of non-consensual image dissemination. So I think that we, or as part of the discussions of how to tackle this issue and how to give more redress and access to justice to victims outside of the judicial system in cases where it’s easier to appeal to the platform, is the platform that should be more swiftly and have more accessible community standards that allow for this kind of reporting and act swiftly in taking down the content in an at-scale way, at least. So yeah, that’s it. I think you can use the mic there.

Audience:
Hi, hello, I am Carla, I’m from APC. I live in Mexico, so I can relate to the issue. First of all, thank you very much for all the amazing work that you do in the different organizations. It’s very admirable to have people like you fighting for these issues because I know it can be very frustrating and even, yes, very difficult at some point, right? Because you get to work with the victims and hear their stories and also deal with, you know, psychology issues and how the victims approach. I have two questions. My first question is if there’s any place where you have been documenting the litigation cases that you are following. If we can access them, how can we take a look at this information? How can we use it for cases in other countries? If there is a repository, where can we find it? And if not, how can we create it? This is my first question. And my second question is in the different countries where you are at, how has it been working with the national governments and the ministries? How feasible do you see to have data protection commissions or regulators or, like, how is the situation generally in each of your countries? Because I’m not that familiar, so I would love to know more about that. And what do you think can be done to have these type of institutions? And a third question that just came up to my head, sorry, is what has worked? Because we have been hearing of the complications and the context, but what do you think has really worked, even though if they are, like, small things that have worked? But do you have any, like, type of things that have worked and that you use in your everyday practices that you could share with us? So these are my three questions. Thank you

Hiperderecho:
Thank you very much in in the case of Peru I will start for the third question What we think that work in our strategic litigation is that we have we had? Team a legal team that was all the time behind our legal cases We had Elizabeth that was the lawyer that has the those cases was behind the prosecutors was Calling mailing all the time only because of that our cases could get move forward Because we thought we thought this I think with all prison or our presence in that case The case we have we couldn’t move forward. So what I think that it worked is Is have a team or maybe? people that are Behind that cases that is also is very sad because most of the people that suffer suffers online based gender violence doesn’t have this the money to Hire a lawyer and have this lawyer behind that case is looking for justice So what happened in our case is that? I Think that we don’t have Like a repository on on these decisions and all these materials we have and I think that it could work for us to share our resources and to share all The ruling cases we had in per derecho. We had groundbreaking Judicial decision in a case and it will be very very helpful to share it with us To share with everybody with everybody that case so right now all our decisions our cases are in our webpage it per derecho that or So, yeah, that’s it, and the second question was about, well, I don’t remember, ah, in relation with data protection authorities. In the case of gender violence, we didn’t use, like, or contact data protection authorities, so we have some kind of relation, but for other, for other issues. I think, in our case, we haven’t tried to get to data protection authorities to seek justice for these cases, but it’s also, we can explore that scenario to use data protection authority, and I think that we could have our legislation could make a legal framework in order to protect victims, but in our case, we haven’t explored it.

Lia P. Hernández:
Okay, in our case in Panama, I invite all of you to visit our website, segurasenlinea.ca, CA for Central America, and this is the first web page with a lot of info about online gender-based violence in Central America and Dominican Republic. We have some, like, a blog section. We also have, like, info about if you are a victim of online gender violence, right, you can go there to the public minister, to the woman minister, to the, whatever you want, and also, we have more info about the cases there, but it’s anonymous because we are not reflecting the information, personal information about the victims in this website. The second question, the question about the relation with the prosecutor, we, with this project, we have established some relation with the prosecutor, mainly in Costa Rica and Panama, also Guatemala. Actually, We organized Twitter space, well, ex-space, not Twitter space anymore, with the prosecutor of Panama and Costa Rica about these topics. They are very aware that this is an important information that is useful for them as well, not just for the victim or for the population. So we have a very close relationship with them. About the data protection authorities, in Central America, we only have two data protection authorities in Panama and Costa Rica. We also have a very close relation with them. We meet them in some events around the world, especially in data protection events. And the data protection authority in Panama, they recently launched two data protection guidelines for the use of information in case of online gender-based. So it’s very important, these kind of materials, because this is information material funded by the Inter-American Development Bank, was made by the Costa Rican consultant. She reflects all the info about how, in the cases of online gender violence, the authorities in Panama should use the information, the personal information. So I think that is good, very material. You also can find these guidelines in anti.gob.pa. It is the website of the data protection authority in Panama.

Speaker from TEDIC 1:
I think that, because your question also was referring to like a centralized place where all regional or national strategic litigations were centralized. I’m not sure if that exists. We have, regarding the Belen case, The Sahil colleague was mentioning that the league is also a part of. We have the La Violencia Digital Israel website where you can find information on that strategy litigation. It’s in English and in Spanish so you can sort of like access the information not only of how the cases started but also how it has evolved through time both nationally and internationally. So it’s a good resource to have in mind and then also as part of the so the Web Foundation has this network called the Women’s Rights Online Network and we’re currently, we launched it last year, this tech policy design lab resource where there’s a lot of information of online gender-based violence across the world and across all different continents. So that’s a good resource to check as well. I don’t have the URL in my head, but you put tech policy design lab and Web Foundation and you’ll find it and we are currently working in defining common ontologies around online gender-based violence. So that’s something that is also going to be accessible in that website and it’s something that you can use. Yeah, so and actually I have actually a quick announcement of that. We’re currently planning a workshop across the world to engage with people who are involved in some way with working on online gender-based violence. So if you’re interested, please leave me your contacts and then I can put you in a database where I can then do a follow-up and and include you in those workshops and then collectively work in what that definition could potentially look like. So yeah, that’s it.

Audience:
Hi, I’m Luis Fernando Castro. I’m from Brazil and I’m a lawyer and a professor and former board member of CGIBR. I’m not specialized in criminal law, but I would like to say a word about civil law. We have the Marcos Civil of Internet in Brazil and this law it says that are stored in these data in devices, are admired . Primarily the Internet service providers are not responsible for content that people upload, like porn revenge or something like we heard in this session. They are not responsible for the content that people upload. They are not obliged to shut down, take down the content since they are notified. Other less, they will be co-responsibilized as joint responsible for indemnification. And I can tell you that that solution helps a lot because the providers don’t want to spend money to indemnify victims. And somewhat, a lot of that will have a negative impact on human nature. So this was a phenomenal solution to have a very complex district panel in criminal procedure. Thank you.

Lia P. Hernández:
I want to say something about your intervention. Actually, we are participating as well in the cybercrime convention discussion in the U.N., and what’s the point of the convention, the U.N. convention about cybercrime, is that the delegates from all the countries over the world, that they took more time to discuss was the topic about the child and the woman protections online, because it was a bit of difference between the countries from the Middle East, respective countries from Latin America, and some countries like, for example, Rocha, Venezuela, Nicaragua. And they were discussing how they can protect the childhood in this convention. Because there are a lot of cases in our countries, but we don’t have regulation, proper regulation to protect them. So thanks for your participation in our panel. Last question. Anyone? OK, we’re finished.

Audience

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Hiperderecho

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Lia P. Hernández

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Speaker from TEDIC 1

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