IFEX’s Americas Editor provides the context for key developments in relation to freedom of expression and information witnessed in Latin America and the Caribbean in the first half of 2021.
Keywords: Right to information; Safety and justice; Civic space; Online expression; Diversity, equity and inclusion.
Overview
While the region is moving, albeit slowly, to confront the COVID-19 pandemic, and the prospects of a ‘return to normality’ emerge, economic and political crises are forming on the horizon.
This region has seen a decline in its historical progress towards recognizing the right to information – despite an important new regional treaty in the area. A shortage of credible information in relation to critical issues, including the fight against COVID, sits in contrast to the abundance of disinformation and misinformation that has submerged the region, not only in relation to the disease and its treatment, but also about broader political issues, in particular electoral processes.
Dissatisfaction with governments’ performance in combatting the pandemic, as well as with long-standing structural issues that preceded COVID-19, is starting to renew protests across the region – protests that had been halted by the emergence of the health crisis in early 2020. The violence deployed by police forces against protesters has also been observed against media covering these events.
Violence also takes place outside of the context of public demonstrations. Stigmatizing speech and verbal attacks against the press increasingly come from high public officials in different countries. At least four journalists have been murdered since January 2021. While impunity in cases of violence against journalists has consistently been a characteristic of the region, three cases showed important developments during the period that bring some hope that national and regional legal systems will deliver accountability and provide redress to victims and their families.
Civic space shows signs of closing in a number of countries, with a couple of hot spots worth watching where democratic institutions seem to be in direct and imminent threat.
The COVID pandemic fostered and accelerated the digitalization of different aspects of our lives. Civil society groups in Latin America have been working to ensure that the expanded use of applications to confront challenges imposed by the pandemic will not negatively impact the human rights of users, including in relation to the protection of privacy and personal data.
Securing the right to information
Back in 2002, Mexico and Panama passed the first Right to Information Laws in Latin America. Since then, the region has seen much progress, not only in relation to the number of countries that have adopted dedicated legislation in this area (23 in Latin America and the Caribbean), but also by building a robust body of national case law, as well as regional legal standards and jurisprudence. One of the latest developments in the OAS (Organization of American States) context was the launching of the updated Model Access to Information Law in 2020.
In February 2021, the Bolivian Minister for Justice presented a draft Access to Public Information bill that is currently being reviewed by the National Council Against Corruption (Consejo Nacional de Lucha Contra la Corrupción). Bolivia, along with Venezuela, is one of the last two countries without a national freedom of information law in Latin America.
On 22 April 2021, a new regional treaty on access to environmental information entered into force – the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean – better known as the Escazú Agreement. It is the only binding agreement coming out of the United Nations Conference on Sustainable Development (Rio+20). It builds on Principle 10 of the Rio Declaration, which set up the so-called ‘access rights’, referring to the rights to access to information, participation, and justice on environmental matters.
Escazu is the first regional environmental agreement in Latin America and the Caribbean – and the first in the world to contain specific provisions on human rights defenders in environmental matters.
The State of the World’s Forests Report indicates that there are “8 million forest-dependent people in Latin America, which represents about 82 percent of the region’s rural extreme poor.”
Many of these communities have mobilized to protect their land and the environment. But being an environmental defender is a risky business in the region. In 2018, half of the environmentalists killed in the world were killed in Latin America. Murders, intimidation, and attacks against environmental defenders have become increasingly common, as these crimes are often not properly investigated and perpetrators rarely brought to justice. The Escazú Agreement requires states to prevent and investigate attacks against those who protect and defend environmental rights. The agreement acknowledges the significance of the work carried out by environmental defenders and obliges states to establish guidelines on appropriate and effective measures to ensure their safety.
Experts in the region expect the agreement will also provide important tools to retrieve critical information and data that will support the work of such defenders and other civil society actors to mobilize and take action in areas such as climate change, deforestation, and biodiversity. The agreement foresees, for example, putting in place up-to-date systems to allow citizens to more easily find documents such as government reports, lists of polluted areas, and the text of environmental laws and regulations. It also requires that countries publish nontechnical summaries of environmental projects.
While welcoming the new agreement, many fear it will be yet another ‘paper commitment’. Political will is needed to secure its actual implementation, moving from words on paper to reality on the ground.
This is a concern experts have raised in relation to all freedom of information legal standards in the region. “Implementation is not a straightforward process”, affirms a recent report by Alianza Regional para la Libertad de Expresión. According to Alianza Regional (a network of NGOs operating on freedom of expression and information issues), recent years have also “shown setbacks, such as the dismantling of the ATI regime in Nicaragua, the approval of legislation in direct conflict with access to information, for example the Public Documents Classification Law in Honduras, or simply changes in government that lead to greater opacity and less commitment with the right to information, as happened in Brazil, El Salvador and Mexico.” Countries such as Argentina, Colombia, Ecuador, Guatemala, Honduras, Paraguay and Uruguay currently face significant yet varied challenges, while Costa Rica is still in the process of adopting an ATI Law, although it has in place a regulatory framework that enables the exercise of the right to information.
Since the onset of the global pandemic in 2020, regional organizations have pointed to decreased levels of transparency in relation to health related information, including in relation to epidemiological data, vaccine doses and vaccination calendars, availability of hospital beds, investments in the expansion of public health facilities, and the overall situation of medical personnel.
In Brazil, according to a May 2021 survey by Abraji carried out with journalists from across the country, most respondents reported that difficulties to access public information had increased with the pandemic. The pandemic has also been used as a justification by public bodies – currently the most common justification – for denials and delays in responses to information requests over the past year.
Another study, released in May by Artigo 19 Brazil, reports on a significant circulation of contradictory information coming from public authorities about the pandemic, including some that is considered intentionally false or misleading, alongside significant gaps in information that would be crucial for the health of the population.
The lack of proper data on the extension of the pandemic is particularly grave in relation to indigenous peoples. In Brazil, given this information gap and poor communication strategies by authorities charged with raising awareness among indigenous groups of the importance of vaccination and prevention measures, indigenous leaders and communities mobilized and organized the campaign #VacinaParente (‘parente’, meaning ‘relative’ in Portuguese, is used by indigenous peoples to refer to other indigenous groups and individuals). Another initiative – an alliance of regional radio stations, backed by Peruvian investigative network OjoPúblico – has launched an unprecedented effort to fight COVID-related disinformation in Indigenous languages for people living in the Andean and Amazonian regions.
Other examples of community driven communication campaigns and projects were seen in many under-resourced communities. These were crucial to provide targeted and curated information to address specific barriers experienced by vulnerable groups to learning more about COVID-19, as well as to provide counter speech and content against health-related disinformation.
Information integrity
According to UNESCO, a lack of trust in governments is driving misinformation about COVID-19 in Latin America.
But in addition to (or in conjunction with) information integrity issues concerning COVID-19, disinformation has also been considerable in the run-up to elections in different countries. The use of bots, in particular, has been adopted by numerous political campaigns in the fight for public opinion in the digital space.
That was the case in Venezuela. In December 2020, disinformation concerning electoral issues and the electoral process was widely circulated – even by governmental bodies. The Consejo Nacional Electoral, for example, made assurances via Twitter that the elections were being supervised by international observers, including from the United States, information that was denied by the US mission to the OAS.
In Mexico, ‘fake news’ about candidates, parties, and institutions circulated abundantly on social networks before the polls. According to researchers, a lack of concrete proposals coming from candidates combined with an increase in manipulation and false news; the vacuum of real in-depth political debate opened up space for the dissemination of disinformation about candidates and the electoral process. Experts pointed to a complex system deployed in disinformation campaigns: four main actors orchestrate the strategies in the networks: the ‘masters of ceremony’, who introduce the narrative; automated accounts (or bots) that amplify it; ‘trolls’ that attack specific targets; and the ‘fans’, ordinary people who make the trends, by thoughtlessly replicating content.
In Peru’s June elections, misinformation circulated both online and offline in relation to the electoral procedures; much of it, as seen in other countries, trying to undermine confidence in electoral authorities. In addition to false information, real information was manipulated for political purposes. An example was news that referred to the registry of voters, indicating that the official lists included the names of deceased individuals – but omitting information on the timing and procedure to correct and finalize the lists of voters before the elections.
In response to information integrity issues, a new fact-checking network was created in Peru, in January 2021, to combat false information during the electoral campaign. The initiative was called Ama Llulla [“don’t lie” in Quechua], and its goal was both to provide translations of checked information in indigenous languages and to take down barriers impeding the political participation of vulnerable groups.
Beyond COVID-19 and elections, we saw disinformation in Latin America in relation to other events, such as the demonstrations in Colombia. Local sources reported that hundreds of videos, audio recordings and images were circulating online about the Paro Nacional, many with lies or information taken out of context, significantly impacting the narrative about what was actually taking place on the streets.
Street protests
In most countries across the Americas, public protests stopped in early to mid 2020, probably due to the restrictions imposed to restrain COVID-19 infections. A notable exception were the demonstrations ignited in the US by the killing of George Floyd in May 2020.
In 2021, people began taking to the streets again throughout Latin America and the Caribbean. In January, anger over inadequate resourcing of hospitals, underinvestment in vaccines, an ineffectual government response, misinformation and denialism being spread by President Bolsonaro led to demonstrations in different regions of Brazil. In February, protests erupted in Haiti, fueled by concerns over entrenchment of the Moïse government, lack of elections, systemic corruption, and economic deterioration. In March, three ministers resigned in Paraguay after protests claiming corruption in the public health system and an ineffectual response to the coronavirus pandemic. Also in March, demonstrations began in Bolivia over the arrest of former interim president Jeanine Añez and other leaders of the political opposition accused of committing crimes related to what the current government claims to have been a coup.
But the most massive and sustained protests were seen in Colombia, beginning in April. The ‘Paro Nacional’, as it came to be called, began after the government introduced a proposal to raise tax rates and eliminate exemptions. This sparked a call for protests and strikes by the country’s main labor unions. Behind the demonstrations, however, were far deeper frustrations – with ongoing economic insecurity, a declining security situation, and pervasive inequality.
At least 42 people have died, according to the Public Defender’s Office. Thousands have been injured. Hundreds of others went missing for days. The country witnessed repeated episodes of police brutality, broadcast live.
Afro-Colombian organizations presented a dossier to the Inter-American Commission on Human Rights affirming that violence and harassment disproportionately affected afro-descendent and indigenous protesters. By 21 May, the Public Defender’s Office already had a record 106 reports of gender-based violence against women and people with diverse sexual orientation and gender identity. Of these 106 cases, 23 corresponded to acts of sexual violence during social protest.
According to FLIP, 257 attacks against the press were documented during their coverage of the protests. By late June, the Colombian authorities were seeking to revise the concept of peaceful protests in Colombian law via an Executive order; this could jeopardize the right to assembly of Colombians and could facilitate the criminalization of protesters.
Despite their diverse origins and dynamics, protests in the region share some common traits: the violence with which they have been repressed; police and armed forces’ poor adherence to rules of engagement and behaviour protocols; a lack of accountability; and a serious disrespect for international human rights standards.
Improving safety and achieving justice
Attacks against the press took place in the context of protests and beyond, in the first half of 2021.
In Mexico, journalists Benjamín Morales Hernández, Gustavo Sánchez Cabrera, Enrique García and Saúl Tijerina were murdered. Regional human rights authorities have called on the Mexican state to investigate the cases and to strengthen measures to protect the press.
Many of the journalists killed in past years in Mexico were under a protection plan (Protection Mechanism) put in place by the federal government. IFEX members CPJ, RSF and ARTICLE 19 Mexico have affirmed that the killings result from the lack of a comprehensive public policy of protection; they have also urged the state to further invest in the Protection Mechanism and called for a thorough review of the implementation of risk analyses and emergency measures.
In February, the IACHR Special Rapporteur on freedom of expression expressed concern at the persistent harassment not only of journalists, but of artists and human rights defenders exercising their freedom of expression in Cuba.
Attacks against the press have also been a constant in Brazil under Bolsonaro, mainly through stigmatizing and threatening speech. During the first months of 2021, the president repeatedly attacked journalists when questioned during interviews. In June, for example, when asked about why he was not wearing a mask in a public space, despite local regulations, the president told the journalist to shut up, and said she and her outlet were scoundrels. A study by Reporters Without Borders (RSF) reported 580 attacks on the Brazilian press that were directly promoted by Bolsonaro and his closest allies in 2020, and this trend is continuing in 2021. Abraji reported 54 attacks against the press between 1 January and 11 March. Of these, 22 were carried out by public officials, 11 by the president himself. Many of these targeted women journalists.
Much of the violence directed against women journalists continues to take place online. A study launched by UNESCO in 2021 conducted more than 900 surveys of women journalists from 125 countries. Most of the journalists contacted said they had received online attacks based on disinformation that sought to discredit them personally and professionally. The attacks were often sexually-oriented false narratives. In terms of racial and ethnic identity, the study noted that attacks occur in greater numbers against women journalists who identified themselves as Indigenous (86%) and Black (81%), compared to 64 percent of attacks received by white women journalists.
Impunity in relation to attacks against journalists also continues to plague the region. Three years ago – in April 2018 – Ecuador’s President Lenín Moreno confirmed the death of Javier Ortega, Paúl Rivas and Efraín Segarra, a journalistic team from El Comercio newspaper. The three were kidnapped in the town of Mataje, close to the Colombia border, when covering the presence in the area of the Frente Oliver Sinisterra – a breakaway faction of FARC (Fuerzas Armadas Revolucionarias de Colombia). On the anniversary of their deaths, in April 2021, IFEX-ALC members lamented that Colombian and Ecuadorian authorities had failed the families of the victims. For FLIP, “truth, justice and reparation are absent in this case”. The investigations show no significant progress, and there has been only one conviction against those responsible. In March 2021, the Andean Foundation for Media Observation and Monitoring (Fundamedios), called for a hearing at the Inter-American Commission on Human Rights, during its 179th period of sessions, where it also flagged a lack of cooperation by the Ecuadorian state to declassify the information around the abduction and murder of Javier, Paúl Rivas and Efraín.
We have seen some progress, however, in three important cases concerning violence against journalists and human rights defenders: Berta Caceres (Honduras), Jineth Bedoya (Colombia), and Alex Silveira (Brasil). In a region known for impunity in similar cases, good news must be celebrated. Berta and Jineth’s cases, beyond highlighting the issue of impunity, raise the issue of gendered violence and challenges that women journalists and defenders face.
Five years after the assassination of Honduran rights defender Berta Cáceres, the trial of the mastermind behind her murder finally began, in June 2021. David Roberto Castillo Mejía, ex-military officer and president of dam company Desa, was charged.
In March, the Inter American Court of Human Rights held a landmark hearing in the case of Colombian journalist Jineth Bedoya. The process, which has been bumpy, is still underway. It seeks to determine the Colombian state’s responsibility for the threats, abduction, torture and sexual violence faced by the journalist over 20 years ago – in 2000. After the opening of the hearing, however, the Colombian National Legal Defense Agency alleged lack of impartiality of most of the judges and the president of the IACHR, citing solidarity they showed towards Jineth after her testimony. The state then announced its decision to withdraw from the hearing. The Court then issued a resolution which “presented that the specific case at hand [involving gender-based violence] required both freedom of expression on behalf of the judges as well as the elimination of spaces of re-victimization” of Bedoya; a second resolution was also released, to resume the proceedings.
After much pressure from civil society and international actors, Colombia agreed to rejoin the proceedings. On 24 March, the Court ordered the Colombian state to immediately implement provisional measures to protect Jineth’s life and personal integrity. The Legal Defense Agency accepted “the international responsibility for the failings of the judicial system [and] for the non-fulfillment of the duty of due diligence in the investigation of threats” made against Bedoya and asked her “for forgiveness for these acts and for the damage they caused” and recognized that “these omissions violated her rights to dignity, to a life plan, to personal integrity, to legal guarantees and legal protection.”
In June, the Brazilian Supreme Court reviewed the case of journalist Alex Silveira, who lost sight in his left eye after being injured by a rubber bullet fired by the São Paulo Military Police during a protest in May 2000. Previous court decisions had taken the position that Alex had put himself at risk by covering the protests, and refused to consider the Military Police responsible.
The Supreme Court ruled that the state should be held responsible for journalists injured by police during protests, unless the “press worker disregards clear and ostensible warnings regarding access to limited areas where there is a serious risk to his/her physical integrity”.
Press freedom groups welcomed the decision as an important precedent for the region, considering the high number of similar cases involving both media and protesters.
Curtailing civic space
According to the CIVICUS Civic Space Tracking Monitor (2020), civic space has dropped in 22 of 32 countries in Latin America and the Caribbean, and has been obstructed or closed in eight of them.
Since 2020 and into 2021, the COVID-19 context has “set the conditions so that the governing elites could expand their panoply of tools to confront the pandemic, but at the same time these tools run the risk of being instrumentalized to advance agendas that predate the pandemic, contributing to the corrosion and contraction of regional civic space.”
In Nicaragua, since April 2018 the international community has noted a climate of hostility to the exercise of freedom of expression in the country, marked by the criminalization of protest, arbitrary arrests, the confiscation and closure of independent media, and the persecution and harassment of independent journalists, human rights defenders, and opponents. “To date, the prohibition of any type of public demonstration, assembly, or mobilization is upheld, and these are repressed by heavily armed police, who use canine and paramilitary techniques, sowing fear, self-censorship, and greater levels of citizen insecurity.”.
Several journalists are facing legal proceedings and media outlets and NGO assets have been confiscated; the legal registration of some NGOs was withdrawn. According to Human Rights Watch, the Ortega government is intensifying “a campaign of violence and repression against the opposition and civil society” ahead of national elections scheduled for November 2021.
Setbacks in democratic institutions have also been seen in El Salvador – and have been increasing since 2020. “The authoritarian practices exerted by the current executive branch support permanent confrontation with legislative and judicial agencies, the office of public prosecution, the independent press, and national and international organizations defending human rights.”. In May, the president and Congress allied to pass a decision to replace all the judges of the Constitutional Court and the independent attorney general.
Lawmakers from New Ideas (the president’s party) alleged the constitutional court was impeding the president’s ability to confront the COVID-19 pandemic. The removed judges have all been replaced by allies of the president, who were accompanied to their new offices by armed guards. According to local observers, “the army and police are following his orders without respect for the law.”
Technology and rights – privacy and data protection
The protection of personal data has been high on the agenda of civil society organizations across the region in the first half of 2021. Concerns have arisen particularly in view of the adoption of technological solutions for challenges associated with the pandemic that took little account of potential risks to the right to privacy.
In Colombia, for example, Fundacion Karisma’s K+LAB assessed vulnerabilities in COVID-related public applications and concluded that not only was there a problem in their design and implementation, there were deeper causes for concern with the manner and methods used by public institutions to develop software and systems. According to Karisma, work is needed to ensure that the development of systems that manage personal data is not taken lightly – quality controls should be strengthened, risk management methodologies adopted, and clear incident response and threat models should be implemented.
Similar concerns were behind the decision by 11 regional digital organizations to launch the Observatorio COVID-19 AlSur in April 2021- to promote the sharing of contextualized information about the uses of personal data and surveillance technologies in different countries from the region. In turn, this should allow the development of joint actions to promote and encourage respect for fundamental rights in the implementation of digital technology.
Unfortunately, dedicated data protection laws are still not a reality throughout Latin America, despite important recent progress. Chile was the first country to adopt such a law in 1999, followed by Argentina in 2000. Several countries have now followed suit: Uruguay (2008), Mexico (2010), Peru (2011), Colombia (2012), Brazil (2018), Barbados (2019), and Panama (2019).
Even with a law in place, implementation is a challenge. In April 2021, for example, the National Register of Mobile Telephony Users was created in Mexico as a mandatory register of mobile phone chips (part of a reform of the Federal Law on Telecommunications and Broadcasting). According to IFEX-ALC member Red de Defensa de los Derechos Digitales – R3D, this register will require mobile phone users to hand over their biometric data, which represents a serious risk to privacy. The Register has been considered a threat by the Mexican data protection authority and is currently under review by the Judiciary.
In March 2021, IFEX-ALC member Derechos Digitales published findings on the implementation of artificial intelligence in public policies in the region. They concluded that there is a silent trend towards the use of technological systems that control access to social protection. Policies are too often subject to (sometimes explicit, others, implicit) conditions for accessing social benefits. In addition, these policies are subject to ‘technological mediation’ – that is, they require biometric systems such as facial recognition or fingerprint collection, web applications or unified digital records. According to Derechos Digitales, these systems can end up deepening inequalities rather than eradicating them.
An example of this is Venezuela. While the country is going through a sustained humanitarian crisis, biometric systems have been implemented to control access to products considered ‘basic needs’, resulting in allegations of discrimination against migrants and transgender people. According to Derechos Digitales, “besides its discriminatory impacts, such initiatives imply legitimizing a differential surveillance towards people who find themselves in severe vulnerability conditions, depending on State assistance.”
Derechos Digitales also reviewed four case studies on the use of artificial intelligence in public functions. Each case provides an overview of the national context; the regulatory and institutional context of implementation; the data infrastructure involved; the decision-making process associated with the implementation; and technological design of the system used is framed.
In Brazil, the use of artificial intelligence in the National Employment System – a system created for the relocation of unemployed professionals in the labour market – was analyzed. In Chile, the investigation focused on the Children’s Alert System, which seeks to estimate and predict the level of risk of children and adolescents from future violations of their rights. In Colombia, the studied case was PretorIA, a draft by the Constitutional Court that seeks to streamline the process of selecting cases of judicial protection of fundamental rights. In Uruguay, Coronavirus UY, a free mobile app, was analyzed.
In some countries, personal data is processed without explicit consent from owners. Gaps in cybersecurity measures to protect data were also verified. In most cases, no prior assessment took place to verify the human rights impacts of the projects before their implementation. Failure to provide external audits were also noted, as well as a lack of proactive transparency tools concerning the decision-making processes applied by the systems, despite the existence of passive transparency tools. In most, no participation took place during the design phase of the systems.
IFEX drives change through a diverse, informed network based on strong organisations, meaningful connections among members, and strategic relationships with external allies. The three pillars of our approach to promoting and defending the right to freedom of expression and information are: securing the right to information, enabling and protecting civic space, and improving safety and justice.
