Content Moderation, Content Regulation / Censorship, Digital Rights, Intermediary Liability, Licensing / Media Regulation
Gonzalez v. Google (9th Cir. 2021)
Closed Expands Expression
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The Constitutional Court of Colombia declared Legislative Decree No. 540 constitutional. The Decree, signed by the President, was enacted under the powers derived from the previous declaration of the state of emergency in the context of the COVID-19 pandemic. The Decree contains two measures aimed at meeting the increased demand for telecommunications services due to the required isolation and social distancing, which created serious challenges for the satisfaction of, among others, the rights to education, work, freedom of expression and access to information. The Court concluded that by reducing administrative burdens for the provision of telecommunications services, as well as the costs of mobile services for the benefit of those with reduced earning capacity, the Decree alleviates hardships resulting from the crisis and contributes to guaranteeing the exercise of fundamental rights and freedoms.
On March 17, 2020, the Colombian President, in the context of COVID-19 pandemic, issued Decree 417 “whereby a State of Economic, Social and Ecological Emergency is declared throughout the National territory.” The Decree empowers the presidency to issue legislative decrees under the terms set forth in Article 215 of the Constitution. Based on the declaration of the State Emergency, the President issued, among others, Legislative Decree 540 of 2020, “whereby measures are adopted to expand access to telecommunications in the context of the State of Economic, Social and Ecological Emergency”, which was referred to the Constitutional Court for its control.
Article 1 of the Decree establishes a special procedure for the processing of license applications for the construction, connection, installation, modification or operation of any equipment for the provision of telecommunications services. Specifically, the term that must elapse for the positive administrative silence to be configured in the processing of such applications is reduced from two months to 10 days. Article 2 declares mobile voice and internet services exempt from value-added tax (VAT) during the four months following the issuance of the Decree.
The Legal Secretariat of the Office of the President of the Republic, together with the Ministry of Information and Communications Technologies, the Ministry of Finance and Public Credit, and the Communications Regulation Commission participated in the process to defend the constitutionality of Legislative Decree 540 of 2020.
The Office of the President argued that the use of the Internet and mobile telephony has grown mainly due to social distancing measures during the COVID-19 pandemic that force a significant number of activities, as well as the provision of basic goods and services, to be carried out through telecommunications networks. This use generates traffic patterns that are different from those foreseen at the time of designing the networks in normal times, i.e., instead of being concentrated, for example, in study and work sites for most of the day, they are distributed in all homes throughout the day, which puts greater pressure on the network in operation. To this extent, it was essential to expedite the procedures for the deployment of the necessary infrastructure, in order to ensure its efficient provision.
On the other hand, they stated that the VAT exemption on mobile voice and internet services ensures access for users with fewer resources. Due to the impact of the pandemic and the actions taken to prevent the spread of COVID-19, it was necessary to implement measures that guarantee people’s access to certain basic goods and services so that they can carry out their work and educational activities and exercise fundamental rights and freedoms associated with telecommunications services.
The Office of the Inspector General considered that the Decree fulfilled the material and formal requirements demanded by the Constitution and the Law.
The main issue before the Constitutional Court of Colombia was the constitutionality of Legislative Decree 540 of 2020.
First, the Court explained that telecommunications have been considered a public service since before the 1991 Political Constitution of Colombia and their provision has been associated with the satisfaction of a variety of fundamental rights, such as freedom of expression and access to information and culture, whose guarantee, contributes to the construction of a pluralistic, peaceful, democratic and participatory society.
The Court mentioned that the current regime for telecommunications regulation is provided for in Law 1341 of 2009, which establishes the general framework for the formulation of public policies governing the information and communications technologies (ICT) sector and promotes the efficient use of networks and the electromagnetic spectrum, among other elements, “enabling the population of the national territory to access the Information Society freely and without discrimination.” It also recognizes the intrinsic relationship between access to the information and other fundamental constitutional rights, and addresses the need to establish differentiated programs in favor of vulnerable groups with the aim of contributing to closing the digital divide.
The irruption of the current pandemic triggered a series of multilevel effects that States, including Colombia, have tried to address in order to prevent the crisis from deepening or worsening. In this sense, the Court understood that large population groups such as students and workers, had to move their activities to environments usually intended for family life and rest. Such need, however, should not -and could not- have the potential to abruptly and violently interrupt the normal exercise of important rights such as education, work, freedom of expression and access to information.
Moreover, the Constitutional Court underlined that the World Health Organization (WHO) and the International Telecommunication Union (ITU), in a joint statement of 20 April 2020, considered that communications technologies and services fulfill three important roles, namely: meeting the need of all people to access the health information they need; enabling people, while being secure in their isolation, to remain productive and connected; and, enabling the development of medical and health activities such as telemedicine, medical and hospital network connection and real-time analysis of diagnostic data, to “contain and predict outbreaks better and faster.”
The Court also relied on the work of Office of the Special Rapporteur (OSR) for Freedom of Expression of the Inter-American Commission on Human Rights which considered that given the importance of the exercise of fundamental rights in the digital environment, it has been expressly recognized that Article 13 of the American Convention on Human Rights, which guarantees the right of everyone to freedom of expression, “applies fully to communications, ideas and information distributed through the Internet.” The OSR highlighted that this has also been expressly addressed by the United Nations. It also argued that the principle of universal access “refers to the need to guarantee connectivity and access to the Internet infrastructure and other ICT services that is universal, ubiquitous, equitable, truly affordable, and of adequate quality, all throughout the State’s territory.” And finally, that “steps should be taken to progressively promote universal access not only to infrastructure but also the technology necessary for its use and to the greatest possible amount of information available on the Internet; to eliminate arbitrary barriers to access to infrastructure, technology and information online, and to adopt measures of positive differentiation to allow for the effective enjoyment of this right for individuals or communities who face marginalization and discrimination.”
In these terms, the Court considered that in the urgency to meet the demand for remote communications, two months were considered excessive for the configuration of the positive administrative silence regarding the request for the licenses. Moreover, the mandate provided for in Article 1 of Legislative Decree 540 of 2020 does not have the effect of eliminating or dismissing the requirements for obtaining the license, but simply reducing the term available to the territorial authorities to verify whether the information satisfies the regulatory and technical requirements.
In relation to the measure provided for in Article 2 of the Legislative Decree, the Court found that that the negative economic effects of the social isolation measures to prevent the spread of the COVID-19 pandemic have generated an intense use of the Internet and mobile telephony, given that a significant number of activities, as well as the provision of goods and services of primary need, must be carried out through these channels.
The Court concluded that by reducing the costs of mobile services for the benefit of those with reduced earning capacity, the Decree alleviates the financial hardship resulting from the crisis and contributes to guaranteeing the exercise of fundamental rights and freedoms associated with the telecommunications service.
On these grounds, the Court decided to declare Legislative Decree 540 of 2020 constitutional.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression to the extent that it acknowledges that in emergency situations such as the COVID-19 pandemic, the supply of telecommunications services is essential for the guarantee of a multiplicity of fundamental rights such as access to information, freedom of expression and education, especially for the most vulnerable population affected by the policies of isolation and social distancing.
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