APC Policy Monitor in Latin America & the Caribbean (LAC): How does cybercrime legislation interconnect with legislation on online crimes that involve violence against women?
Carlos Gregorio: It's very difficult to give an answer that encompasses the legislation in all of the countries in Latin America. My sense is that legislation on cybercrimes is biased towards aspects that directly affect trade and the economy, or focuses on the repugnant subject (as it is called in Brazilian legislation) of human trafficking, sexual exploitation or child pornography. In the legislation of many countries, an attack against the image or private life of a person is still not viewed as a form of cybercrime, and in this regard, most violent attacks involving sexual content are aimed against women.
In the region, there are many cases of online violence against women (their privacy, their images) that are not prosecuted. And the judicial system has proven to be extremely weak and powerless in resolving these cases even when it has been possible to identify and charge a probable perpetrator.
One of the problems is the lack of territorial jurisdiction over the internet: it is difficult to establish who should be accused of the crime, and before what tribunal. In Chile, it was recently established (through article 374, paragraph 3 of the reformed Criminal Code as per Law Nº 19.927 of 14 January 2004) that Chilean courts are competent to try cases of any cybercrime involving child pornography as long as the website in question can be visited from Chile. I think it will be very interesting to see how this legislative stipulation will actually work in practice.
APC Policy Monitor in LAC: How have cybercrime bills been used to restrict the exercise of women's rights, directly or indirectly?
CG: There are bills (or laws) to combat cybercrime that consider it necessary to restrict individual rights - specifically - the right to privacy, through discretionary mechanisms to intercept communications or investigate people's private lives without a court order. Other laws enter into conflict with certain constitutional guarantees, such as the right to due legal process, in relation to the use of undercover agents, for example. Both of these situations could be related to restrictions on the exercise of women's rights.
APC Policy Monitor in LAC: What do intellectual property crimes mean in terms of property rights over women's knowledge?
CG: First of all, intellectual property legislation is mainly of an economic nature, and in reality there are more mechanisms aimed at protecting investments than the generation of art or knowledge. As a consequence, any knowledge that belongs to a community that is not economically organised could be left without adequate protection, or this protection could exist only on paper and not be genuinely effective.
APC Policy Monitor in LAC: When it comes to supporting or not supporting the criminalisation of incidents involving violence against women (cyber stalking, blackmail, internet-based assault) in national legislation, what are the possible negative consequences in terms of women's privacy, the risk of retaliation, and access to personal information?
CG: The greatest weakness of these laws lies in the protection of the identities of the victims. There is clearly a double or triple victimisation, which includes being subjected to medical exams, confrontations in court, and especially publicity about their status as victims. This opens up a whole range of personal risks and potential for discrimination. There is definitely a still unresolved conflict in the legislation between the right to access to information, the right to a public trial, and the victims' right to privacy.
The different forms of violence against women should of course be covered in criminal legislation, because this is a form of sanction against antisocial behaviours. But laws are not enough. There is also a need for education, prevention, the development of defence mechanisms, and a legal system that is capable of correcting these behaviours without creating a nightmare for the victim. Prevention is crucial, because once something is on the web, it multiplies exponentially on other websites or is shared between peers, and no court decision can erase something that has been published on the internet.
APC Policy Monitor in LAC:How does the criminalisation of online sex and the online sex trade affect women's sexual rights?
CG: Legislative trends are not very different now – for online relations – than they were in the past for other media. The difference lies in the fact that there are new paradigms regarding what is understood as a public space, as well as who and whose interests could be potentially damaged. Debating these differences stirs up a very wide range of opinions on sexuality and the sex trade, which naturally are represented in the legislation.
Nevertheless, and independently of these different views, most laws in the region designed for the online world focus on the protection of children and adolescents, which is understandable because they are ”digital natives”h (not only because they are more familiar with the internet than adults since they have grown up with it, but also because they have appropriated it as their own space), while at the same time, they maintain all of the vulnerability associated with their age.
It is interesting to consider the example of Bolivia, where a law was passed to prohibit pornography (Article 324 of the Criminal Code introduced by Law 3325 of 18 January 2006) but was subsequently overturned by the Constitutional Court (Ruling 0034/2006 of 10 May 2006). This goes to show that this is an area in which preconceptions are intermingled with powerlessness, among other things. These are issues that are very difficult to regulate consensually and effectively. In Venezuela as well, sexual exploitation had been included in a bill to combat organised crime, but in the end, it was only approved for cases of child pornography (articles 14 and 38 of the Law Against Organised Crime of 6 September 2005) because of questions raised over the concept of undercover agents.
APC Policy Monitor in LAC: Thank you, Carlos, for your valuable insights and contribution to this debate.