The following are the outputs of the captioning taken during an IGF intervention. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid, but should not be treated as an authoritative record.
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>> Taking into its court related to a recent apology, it says that medium used must be capable of preliminarily spreading praise to a.m. in of people and also the more democratic principles of and the search of consensus. But and this is very important, the constitutional courts say that it is not needed to an actual danger, per revenue van constitutional court interpreted that in order to punish this crime and what it seeks this crime seeks is the potential dangerous behavior, that rather than a specific harm or interest. So in the Peruvian case there is no need to apologize the crime but be able to cause actual damage needed to, I don't know, just to say to praise the terrorist person and you will be punished by doing that. And also others is the need to develop criminal police policy in response to our reality. So there is in the per revenue van case we have like these two difference. In the American commission says in order for this crime to be compatible with the human rights, it needs to have potential and actual danger to human life 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 when we talk about freedom of speech the per revenue van parameters are not in accordance and also when we talk about freedom of speech parameters human rights parameters in general media in digital age of 2018, especially freedom of expression and, it say that States must refrain from enacting disproportionately lost or penalized compared to equivalent. It means that when the states criminalize some action just because it's done online to have more strict penalties or higher penalties rather than I don't know in real life we could say. So we can say here that also Peruvian regulation is not in accordance to these parameters because it say like if you do apology of terrorism in street you'll only be sanctioned for years but if you do it through Internet you're going to have eight years of penalty. We tell taking into account any specific feature that could have been in this situation, no. So what we see some applications with terrorism through ICT establish in our criminal code. Third it can violate the right to equality. Why? Because if someone committed this crime in public square he will be punished with four years in prison but if I do the same through Internet, I don't know, through I have an Instagram with one follower and no one sees, I do the 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 have been first problem here of equality. Same actions are not treated the same. Even though 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 ‑‑ what we understand as ICT, it could be SMS, it could be an e‑mail, it could be what's app, it could be telegram. So in order to persecute these type of crimes, we could say that police or prosecutors will be entitled to access, to private communications only because this terrorist is owned through ICT and at this point we can have a reflection about if I ‑‑ I don't know, if I have a private communication with a friend, and I don't know we are talking about it and my friend it's ‑‑ I don't know, supports what should be done, as long as he supports what path has done and does it through What's App messaging or through SMS, it will be possible to be punished with ‑‑ through the prosecutor. So there's also a problem he related to privacy in the communications. And also this type of crime doesn't take into account the diversity of platforms that we have right now Internet because it's not the same publishing or sharing some information on Linked In or on Facebook or on Twitter or on Instagram or whether we have public account or more private account. So this is a big problem here. Also, because it doesn't take into account that platforms themselves, it has 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 is related to some kind of violence or terrorist group, the Facebook moderation system take us 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 also led the prosecutor to some terrorism apology that haven't took anyone to know what we're talking about it. So this is like the general legal potential meanings we have about this crime. So how the crime has been pursued in practice. We have done some research about how actual prosecutors and how actual judges were judging these type of crimes, terrorism apology through ICT here we have a study of the number of ICT terrorism apology filed to the public prosecutor's office. We can see that from 2019 to 2022 it doubled by a lot. The account of reports of ICT terrorism filed to the public prosecutor and for 2023 on June, it was around 100 reports. Also the prosecutor of this crime as you know on December of past year we have social unrest in Peru. This led to the ministry of interior to have this ‑‑ to pause this on social media, telling people to report if they see like some kind of terrorism policy through Internet, they tell people to report and they say that you could report these type of crimes to specific e‑mail account. And this e‑mail account that people could report, terrorism apology was this, the one we find here. And what happened? We asked information about this e‑mail account and the account and the number of reports that we received. 96 percent were dismissed. Actual cases that prosecutors have in their desk are like 2 percent of the cases. And why is this ‑‑ when we ask why did ministry of interior wanted to prosecute more these 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 terrorist and without being actually terrorist there were people that were protesting but government said they were terrorist and what's happening is everybody that was against the program government was marked a terrorist and were prosecute. In this case, we have one case study. Quickly we're going to tell the person that was with committee 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 resolution, we can say that ‑‑ we can see that his Facebook account, actually it's accessible and anybody could get this Facebook account. What we could see is that this person that has been committed with this crime, he was on the far ‑‑ he was a far right person militant. So all of his posts was related to far right or right idealogy. 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 imprisonment. And what the prosecutor did in order to ensure that he was the one that actually have 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 one that is seated here in the court is the same, we can say that he committed the crime. That was the firm 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 Banderoja we can say. He didn't write the post himself, the account shared that information. We can say that, yeah, it's committing apology of the terrorist group and the terrorist person Abel Gusman but the difference is said that he didn't post it and we can ask why did attorney or prosecutor didn't judge or didn't seek or didn't make taking to trial the ‑‑ or try to investigate who was behind this Facebook page if he didn't do it. So even though we having all this information, this lack of judicial reason, we have this verdict of eight years of effective prison. So right now we don't know effectively is this person indeed committed the crime but right now he's in prison for eight years.
When we talk about digital apology. How is the judicial reasoning here? There is a lack of account ownership variation 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 criticized the trial that come into account for Gusman. If through social media sharing content is an effective way to spread praise, doesn't matter if you just share it, maybe you could share it not on purpose, by mistake, it will be also be prosecuted by this crime and when we talk about civil reparation, there is ‑‑ would he have 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, like approximately $2,000. But there is no formal analysis is conducted beyond confirming material harm. So why do ask for $2,000 reparation without analyzing if, I don't know, the person Facebook caused more harm through or cause rather than posting on Instagram or posting in 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 the percent execution of dissent, are we against the percent execution of dissent and infringement of freedom of expression on Internet? We know because of the social unrest that happened in Peru, president Boluarte said the people were protesting were marked as terrorist. Also, most of one of the most influential said that all the people that are protested are terrorist. 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 anything, any type of criticism through the government done by social media and you can report it to this specific e‑mail, what we are going to having these people no more is going to criticizing government through Internet. So we can see what police did investigate in these cases and is the problem that we have ‑‑ actual legislation that we have from terrorism policy doesn't respect human rights standards and it's so wide open that everyone could be persecuted by this crime and to people that cannot be more critical about government no more.
That's what I want to share with you and here Camilla is going to have some comments about what is happening in Brazil, what we can take into account when we talk about terrorism among ICT.
>> Camilla: Thank you. 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 like 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 democratic and the democracy, freedom of expression and each jurisdiction has a different way to balance it but it's important it brought some interAmerican parameters to do this. We have some parameters that have to be followed and they are not being followed.
In Brazil we also have these antiterrorism law. It's applied a little different because it's about exposing someone to danger, to the bees, to the public safety but in cyber crimes we don't have a specific amount, don't have a specific sanction for cyber crimes. It's arranged. So you can be convicted for an imprisonment of 12 to 30 years and when it is committed through cyber crime, the judge sees concretely how much is their imprisonment. This brings a challenge to 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 this specific case but it has to be considered. So we have two opposite sides. Too strict on that but also too broad on that. When we are talking about beyond enhancing legislation we also have to think about how we can qualify better the judges applying these kind of law. But to end I would just like to talk acts about the president context because beyond the law we had recently some cases of ‑‑ we had like a capital invasion in Brazil in January. It was eight January and these people are being sued also for attacks against democratic state and also terrorism. We have a challenge on that on how we do that and how also the judges try to make the responsibility 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 in Brazil. It's similar to the DSA which is the digital services act is related to content moderation, to responsiblization 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 eminent danger. The duty of care has to consider, has to make platforms diligent and mitigate elicit practices within the scope of their services, making an effort to improve to combat 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 they might be civil liability when specific case of danger. A bill that we are contributeing digital rights network and it's a challenge. From one side people want to make these people liable for direction but on the other side we cannot be extremely surveillantist. We have to consider the rights and how to balance it. I know it didn't give answers but it's great to hear from the Peruvian reality and to understand how in Brazil and 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 conservation. Thank you for the invitation.
>> Thank you, Camilla and what we can think about is when we talk about terrorism is 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 certain attacks against one politician and these people is a terrorist but it's also needed 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 ‑‑ certain type of speech. And that's it. Thank you very much, Camilla. Thank you very much for being here. So I don't know if you have any questions here? Or because the panelists ending right now if you have any questions we could talk outside and thank you very much for being here.
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