This letter is also available in Spanish.
Karen Abudinen Abuchaibe
Minister of the Colombian Ministry of Information Technologies and Communications
Juan Diego Gómez Jiménez
President of the Senate
President of the Chamber of Representatives
Victor Manuel Muñoz Rodríguez and Clara Elana Parra Beltrán
Advisors to President Iván Duque Márquez
Dear Minister, Mr. President, Mme. President, and Office of the Presidency,
I am writing on behalf of the Global Network Initiative (GNI) to express concern about the recently introduced draft law 600 of 2021, otherwise known as the childhood protection law (“draft law”).
The protection of the rights of children and adolescents are important and admirable aims, which GNI fully supports. We appreciate the commitments stated in the draft law to the principles of due process, freedom of expression, and the prohibition on censorship. We are nevertheless concerned that, as written, the draft law poses significant risks for the rights to freedom of expression and privacy.
GNI is the preeminent, international multistakeholder organization working in support of freedom of expression and privacy in the information and communications technology (ICT) sector, bringing together academics, civil society, ICT companies, and investors from around the world. Last fall, GNI published a policy brief analyzing two dozen recent government initiatives that aim to address online harms, using the international human rights framework to identify good practices and make concrete recommendations.
Drawing from this policy brief and its recommendations, as well as the broad experience and expertise of our diverse members, GNI has undertaken a high-level review of the draft law approved by first debate of the first commission of the Chamber of Representatives (“the Cámara”) and shared by the Ministry of Information Technologies and Communications (MinTIC). We find the draft reflects a number of concerning elements we have seen in other forms of content regulation around the world.
GNI encourages the Cámara and the Senate to withdraw the current draft as proposed, and to undergo further open consultation on regulatory approaches that protect the rights of children and adolescents, while upholding Colombia’s obligation to protect freedom of expression and privacy.
Some stakeholders in Colombia have expressed concern about the lack of public notice for the draft prior to this first debate, and the lack of clarity on subsequent procedural steps afterward.
We join others in expressing alarm that this law appears to be undergoing “ordinary” legislative procedures, as opposed to the more robust debate and public input typically required for “statutory” legislation that can affect constitutionally protected rights in Colombia. Consistent with the international human right to freedom of expression and the specific principle of “legality,” when States consider particular forms of online content sufficiently harmful as to require regulation, they should be deliberated upon openly and debated thoroughly, consistent with domestic law.
Committee of Experts
The approved text would create a new body to oversee implementation of the law, composed of public officials otherwise responsible for children’s rights, criminal matters, and communications technologies, known as the Committee of Experts. The Committee of Experts would be tasked, among other responsibilities, with:
- Proposing technical or administrative initiatives about parental control and filtering; and
- Creating a content catalogue, which will allow for the classification of content as harmful to children and adolescents, with requirements for Internet service providers (ISPs) to implement the proposed measures for addressing this content.
In our policy brief we note that delegating the administrative authority to define and restrict specific forms of otherwise-protected speech to public bodies, without sufficient safeguards, accountability, and independent oversight, may create the potential for democratic decision-making processes and methods of accountability to be circumvented. Proposed changes to take the power to define “harmful” content away from the proposed Committee of Experts are therefore welcome.
In any further revisions, we encourage lawmakers to create robust oversight and accountability mechanisms ensuring the Committee of Experts or any similar public body is acting in the public interest, and providing opportunities for redress for individuals affected by decisions of the body. Future proposals should also further spell out any related public body’s commitments to freedom of expression and privacy.
Obligations for Intermediaries
The law includes obligations for media outlets to issue codes of conduct in accordance with guidance issued by the Colombian Family Welfare Institute (ICBF) and the MinTIC. Media outlets are vaguely defined as “anyone who transmits or publishes information and content, through the use of the radioelectric spectrum, regardless of the technology used for that purpose.” Another version of the text shared by MinTIC implies this definition may be narrowed further. However, in the text as approved in the first congressional debate, this definition could capture a broad set of potential companies and even individuals as in scope. In any case, media outlets must disclose these codes of conduct on their website, issue reports to the MinTIC for verification, and uphold an “ethical responsibility” in the defense of protection of the rights of children and adolescents.
GNI has observed that in order to uphold the principles of necessity and proportionality, which according to international law must be met by any restrictions on freedom of expression, laws should target regulations to services, scenarios, and types of content that pose the greatest risk to users. It is unclear what rationale guides the current approach in the draft law, which seems to target a vague set of communications providers, many of which are not well positioned to proportionately address instances of problematic content. In particular, we note that many of the obligations targeting internet service providers (ISPs) could create an expectation that ISPs would block or filter individual pieces of content in ways that are not technically feasible, and may contribute to disproportionate blocking of entire websites or URLs. Furthermore, it may undermine commitments in the American Convention on Human Rights, including those regarding censorship via indirect methods or means.
Article 14 of the draft law prohibits ISPs from hosting text, documents, audiovisual files, or even links to material that directly or indirectly violate the morals or mental or physical integrity of children, childhood, and adolescence, incite violence, advocacy for criminal acts (apología), or contain discriminatory messages against this sector of the population. In addition, Articles 15 and 16 place further requirements for ISPs to stop material that is potentially harmful to children and adolescents from circulating, and to establish technical measures for doing so, with authority vested in the Committee of Experts to determine both the measures and pertinent categories of content.
It is critical that any regulation addressing content online, in line with the principle of legality, provides significant clarity both for individual speakers to regulate their conduct in accordance with the law, as well as to any actors tasked with enforcing the law to be able to clearly ascertain what sorts of expression are properly prohibited, and which are not. As GNI has noted, the use of vague definitions is likely to incentivize over-removal and be difficult to enforce in a manner that is perceived as fair and non-discriminatory, even more so when it is ICT companies, as opposed to independent adjudicators or judicial authorities, that are tasked with enforcement. The extremely broad requirements in the draft law are likely to be impossible to fully comply with, and any efforts to do so would require extensive, technology-dependent, proactive monitoring and filtering of user data and content, which would seriously jeopardize the privacy and freedom of expression rights of Colombian internet users. Furthermore, it is not clear that this approach is most effective for addressing the stated concerns about the rights of children and adolescents.
Sanctions and Enforcement
These potential risks to human rights related to the broad scope and significant obligations for intermediaries are exacerbated by the potential for significant sanction. Articles 18 and 19 detail potential sanction(s) for hosting violative material or for failing to adopt a code of good practices, with sanctions including the suspension of services for up to two months and fines equivalent to 2,000 times the statutory monthly minimum wage for individuals, and 15,000 times the statutory monthly minimum wage for companies and organizations.
Ultimately, the vaguely defined and stringent obligations for intermediaries, paired with significant potential sanctions, heighten the risk of proactive monitoring of users, a priori censorship, and excessive removal of otherwise protected speech, posing significant risks for freedom of expression and privacy. It is important to note that this can also negatively impact the fundamental rights of infants, children, and adolescents, such as autonomy, access to information, freedom of expression and free personal development.
GNI recognizes and appreciates the significant progress Colombia has made addressing and protecting children’s rights, including in international fora and through law 1098 of 2006. We also acknowledge the worthwhile aims of the Cámara and Senate in considering how to further protect the rights of children and adolescents, as well as their stated commitments to international human rights obligations. However, as currently presented, the draft law ultimately places undue pressures on the rights to privacy and freedom of opinion and expression, including access to information, in Colombia. We therefore encourage Congress, the MinTIC, and the office of the President to undertake further multistakeholder and expert consultation, including adoption of usual procedure for consideration of statutory legislation, and to consider more targeted, proportionate, balanced, and fit-for-purpose approaches to protecting the rights of children and adolescents online.
GNI reiterates its willingness to engage in future dialogue to discuss possible recommendations and guidance informed by our multistakeholder expertise on the matter. We fully support the adoption of measures that protect vulnerable populations from possible threats, while avoiding unintended consequences in detriment of freedom of expression and privacy.