On February 8th, Senator Ricardo Monreal presented a draft bill to regulate social media in Mexico. It was a 52-page document seeking to reform the Federal Telecommunications and Broadcasting Act.
The next day, after receiving criticism and questioning, he asked the public via a post on Twitter to inform themselves, participate, and send him comments to help improve it. He’s going to wait three weeks to gather all the opinions and present a new bill.
The deadline is coming up soon. There are different positions and questions on the subject, starting with the suspicion that controversial accounts or people will be censored or that the government will want to limit users’ freedom of speech.
Therefore, Tec Review consulted experts on the subject to answer our questions.
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Can social media be regulated in Mexico?
“Can it be regulated? Yes, it can. That’s a fact,” says Ruben Vázquez Romero, professor at the National Autonomous University of Mexico (UNAM). “If a government decides to limit or control a type of information service, of course it can.”
The communications and social media researcher says that the scope of these possible modifications is difficult to see because they’re connected to fundamental rights, such as freedom of speech and access to information. Therefore, a debate on the subject isn’t only necessary, but urgent.
The first thing to understand is that regulation of social media, for example in the United States, has been controversial because of the way that Section 230 of the U.S. Communications Decency Act gives some immunity to telecommunications services with respect to what users do on their platforms.
“This article declares that platforms such as social media and many others are not really responsible for the content of their users, that they’re not publishers or creators, but are simply service providers,” explains the expert.
And while it’s true that the European Parliament, the United States, and other nations have opted to regulate these platforms, the reality is that it hasn’t been an easy task.
In the final months of Donald Trump’s presidency, the issue once again came up in the public sphere when it was noted that Section 230 of the Decency Act has a loophole.
“(Trump) asked that if social networks defined themselves as telecommunications platforms and not as publishers, then why did they label his content as potentially false? Or why did they censor him and remove content from him or some of his followers?” recalls Vázquez Romero.
What does this mean? It means that they’re effectively editing posts, and therefore they can’t be treated as companies that offer only one service. They also provide content.
Turkey, a case in point
The debate over regulation of social media is nothing new. Laws on this issue have been debated and approved in different countries, such as Turkey.
In July 2020, the Turkish Parliament passed a law tightening government control over social media.
Among other things, the legislation passed requires platforms to maintain their servers physically inside Turkish territory.
It’s also necessary for those companies wanting to have a presence in this country to have a representative of Turkish nationality. The third element, the one that generates the greatest concern, is that servers must be made available to the Turkish government.
“This is extreme because basically the Turkish government is going to decide what can and can’t be expressed, and that’s just one of the things we shouldn’t allow,” warns researcher Vazquez.
So, when discussing the regulation of social media, one of the points we shouldn’t lose sight of is that doing so would open the door to censorship, of any kind, because existing laws could be misrepresented or modified so that any inconvenient content could be taken down.
Another thing that can’t be ignored is that, under the idea that social media companies are only providers of telecommunications services, platforms have “washed their hands” arguing that they let their users post whatever they want, a statement that isn’t entirely true since they themselves have taken down content that wasn’t hate speech and that went beyond other community rules they adopted.
“This makes us think that social media companies shouldn’t decide either who can and who can’t post because while they’re private companies, it’s also true that they’re a space that’s become a fundamental element for democracy,” the researcher stresses.
“These kinds of digital public spaces are very important. Although they do have owners, they also provide a greater good to public debate: the right to access information and freedom of speech. “Social networks have a social commitment they haven’t wanted to accept.”
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So who should be the referee?
If the state shouldn’t be allowed to decide what can and can’t be published on social media, and it shouldn’t be the platforms either, what can be done?
“What would need to be done is what we call a ‘metaregulation’, that is, a regulation to create regulations,” considers Vázquez Romero.
This means having a minimum level of fundamental rights for social media users, which would allow nations and platforms themselves to create their community standards.
“Thus, rather than regulating content, there need to be fundamental digital rights, something that should be supranational, i.e. it wouldn’t belong to a single state,” adds the academic.
Interviewed separately, Axel González Ortiz, Professor of Constitutional Law at the UNAM, agrees that, beyond promoting regulation for any one country, the first thing to do is to achieve this minimum level of fundamental digital rights.
However, he adds that there should be regulation which allows for punishment when these rights are violated.
“The state may recognize certain inalienable digital rights. When these are violated, the next step would be to take legal or administrative action through a state institution to restore an individual’s infringed rights. That means the existing bill of rights isn’t enough, but some state protection would also be needed (…) I know this generates a lot of controversy or conflict, but there would need to be some regulation and penalties,” explains the teacher.
The right to obtain free and non-coerced information from third parties, not to receive fake news, to express oneself freely within the parameters that are created and that exclude hate speech, threats, etc. could be some of the fundamental digital rights that would then allow for regulation of social media in each country.
“You can’t regulate the digital world by just thinking locally, so it needs to be a supranational task,” says Vázquez Romero.
Fraud and other risks
When it comes to regulating social media, one of the first issues of concern is the existing, and reasonable, fear that political power looks to censor and control the content in cyberspace, says González Ortiz, but also that people’s freedom of speech can be restricted, violated, and infringed upon by private companies in order to benefit their advertising policies.
However, the professor asks us not to lose sight of activities that the law, in general, isn’t ready for, such as cyber fraud.
“Freedom of speech is one concern, but the crimes that can be committed in cyberspace are other concerns, where there are gaps in many of the laws of different countries. The law doesn’t know how to act on criminal conduct that’s committed in cyberspace or on social media.”
Experts recommend a serious and informed debate, as well as not limiting it to Twitter and Facebook.
A first step could be for Mexico to join the Forum on Information and Democracy, an organization based in Europe that 40 countries from around the world collaborate in, which is concerned with what happens on social media, specifically the so-called infodemic and fake news.
“It’s very interesting that Mexico isn’t (in this organization), and I think this has to do with a lack of knowledge and polarization in the way social media works because everyone, especially the political class, complains mainly about Twitter, which isn’t a widely used platform in Mexico, except by them,” says UNAM professor Ruben Vázquez Romero.
In Mexico, Twitter is the least used social media network, with about 9.4 million users to Facebook’s 84 million, for example.
In addition, there needs to be an open debate in which different ideas and positions prevail and are nurtured. They warn that not doing so could result in extreme legislation such as what was passed in Turkey.
“The important thing is to do something. I’m sure that in the future we’ll reach an agreement among nations for a minimum bill of digital rights. I think it’s inevitable, and I think it would even be the best way forward,” concludes González Ortiz.
The essence of Ricardo Monreal’s draft bill
Reform the Federal Telecommunications and Broadcasting Act to lay the foundations and general principles for protection of freedom of speech on social media.
Provide the Federal Telecommunications Institute with the necessary powers to ensure the exercise of freedom of speech in cyberspace.
Set clear limits on social network owners regarding account suspension and deletion.
Define social networks as:
“The service provided over the Internet whose main functionality is to disseminate within the platform information generated by its own users such as text, data, voice, images, videos, music, sounds, or a combination of the above, in order to inform, entertain, or educate. This definition is intended to identify the specific activity that needs to be regulated.”
It also includes the definition of “large social networks”:
“Those with one million or more subscribers or users, which is why this type of social media is able to generate a greater impact on social communication processes and in the legal sphere for the public.”
Create an authorized status for social media services.
Establish various requirements which shall include the terms and conditions of service to be issued by those authorized They shall include an expedited mechanism to receive challenges from users against the suspension of accounts or profiles, the deletion of content, or the final cancelation of accounts or profiles, as well as requiring the reason, under the terms of the provisions of Articles 6 and 7 of the Mexican Constitution.
Establish the general basis for the abbreviated procedure by which the Institute will address complaints made by users who do not obtain a resolution from the social network, or which is not favorable to them.
At first, allow for the possibility that it is the owners of social networks together with their users who may resolve any issue related to the suspension or cancelation of accounts and removal of content.
Penalties ranging from 1 Unit of Measurement and Update (UMA) to 100 UMAs depending on the severity of the violation of the human right to freedom of speech.