This article was first published on apc.org in Spanish here and in English here.
With the support of the Association for Progressive Communications (APC), Derechos Digitales has mapped cases involving the abusive use of cybercrime regulation to silence and criminalise women and LGBTQIA+ people around the world. The results are troubling, and warn of the inherent danger of imposing international standards in this matter without considering national contexts or building in human rights safeguards, particularly for historically marginalised groups. This APC and Derechos Digitales research project seeks to expand on current discussion in the framework of a United Nations ad hoc committee working to draft a comprehensive international convention on countering the use of information and communications technologies for criminal purposes, an effort in which both Derechos Digitales and APC have been actively involved.
“Freedom of opinion and expression enables and empowers women to realize not only their civil and political rights, but also their economic, social, cultural and environmental rights,” notes Irene Khan, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The internet has been a key tool in the empowerment of women and LGBTQIA+ people to exercise these rights, and is widely used for mobilisation in favour of gender equity. There are numerous examples, ranging from #MeToo campaigns against sexual abuse to demonstrations for legal and safe abortion and speaking out against and exposing homophobic violence.
Despite being crucial for the construction of more just and democratic societies, freedom of expression for women and LGBTQIA+ people is heavily threatened both online and offline. The many forms of violence and discrimination faced by these people when they speak out in public multiply, and when this occurs on social media, it can be classified as technology-facilitated gender-based violence (TFGBV).
TFGBV can take many forms, and is considered a form of censorship, as it can have a chilling effect in both the individual and social sphere, inhibiting public debate which is essential for democratic societies. A recent study confirms this in hard statistics: more than 20% of people affected by this form of violence say it had very negatively impacted their freedom to express their political and personal views. Among LGBTQIA+ people, the number is more than 25%.
Strengthening institutional responses to the rise in gender violence is urgent. The sphere of criminal justice is just one space where this discussion may be expanded, but it is the focal point for many states’ regulatory urges. It is also an arena fraught with risk for the exercise of freedom of expression by women and LGBTQIA+ people, already known for various activisms before the massification of the new digital technologies. Criminal laws governing a wide range of vaguely typified conducts, accompanied by lengthy sentences, facilitate discretional interpretation, used by those who wield political and economic power as a legal tool to silence their critics.
Despite being crucial for the construction of more just and democratic societies, freedom of expression for women and LGBTQIA+ people is heavily threatened both online and offline.
Concerned about the possible impact of a new global convention on cybercrime and the ways in which the debate over responses to TFGBV can be manipulated to legitimise disproportionate censorship and surveillance measures, Derechos Digitales, with the support of APC, developed a map to show how national cybercrime laws have been used to silence and criminalise women and LGBTQIA+ people around the world. Based on an analysis of legal frameworks adopted in various countries, we have identified 11 cases in Saudi Arabia, Cuba, Egypt, Jordan, Libya, Nicaragua, Russia, Uganda and Venezuela that show that we are not speaking merely of potential risks but of material harm.
“Truth” as an instrument of persecution
All of the identified cases involve women or LGBTQIA+ people persecuted for their activism, gender expression or simply for expression of dissatisfaction with the powers that be. In many cases, broad generalisations like “spreading fake news”, associated with draconian sanctions that include imprisonment, are used to criminalise legitimate activities, violating basic rights like the freedom of expression and association. The allegations of criminal conduct are similar in their vague wording, allowing for a subjective definition of the concept of “fake news”, many times applying this term to critical opinions.
This was the case for the Nicaraguan Kareli Kaylani Hernández Urrutia (known as “Lady Vulgaraza”). After successive threats, her home in Managua was blockaded by police to prevent her from moving freely. At the time, the home was used as a soup kitchen for children. Before facing arrest and trial, Kareli decided to seek exile, first in Costa Rica and then in the United States.
Lady Vulgaraza had good reason to fear that she would be sentenced under the Special Cybercrime Law, approved in 2020 and used frequently to jail activists and journalists in Nicaragua. One of its victims was Cinthia Samantha Padilla Jirón, the youngest of 45 people arrested during the 2021 elections. She was sentenced to eight years in prison – four for violations of the cybercrime law – on charges of spreading fake news. Cynthia was one of 222 people jailed in 2023 and is currently in exile in the United States. A student in journalism and political science, she had been a member of student political groups in 2021 and joined the campaign team of presidential pre-candidate Felix Maradiaga.
The criminal concept used to sentence Cinthia is not new in Latin America. Another example is the case of Cuban lawyer and journalist Yaremis Flores. She was arrested in 2012, accused of spreading disinformation at a time when the idea of “fake news” had not yet risen to global public attention. “Spreading false news with the purpose of disturbing the international peace or threatening the prestige or credibility of the Cuban State or its good relations with another State” is punishable by up to four years of jail in Cuba, according to article 115 of the 1987 Criminal Code, in force at the time of Yaremis’ arrest. She was held for more than 48 hours.
The allegations of criminal conduct are similar in their vague wording, allowing for a subjective definition of the concept of “fake news”, many times applying this term to critical opinions.
In the recent reform of Cuba’s Criminal Code, this text was preserved, and new types of crime equally hazardous to freedom of expression were included. In January 2023, 21-year-old Sulmira Martínez was arrested shortly after posting a call on social media to protest in public spaces against President Miguel Díaz-Canel. She has been in police custody since then, according to local media, initially accused of “propaganda against the institutional order” and then “incitement to crime”.
Far from Latin America, 20-year-old student Olesya Krivtsova faces up to 10 years in prison for criticising the Russian government’s war on Ukraine in social media. Russian authorities accuse her of “discredit to the Russian army”, “spreading fake news” and “acts justifying terrorism”. Olesya fled the country before the verdict, after having been detained and then placed under house arrest.
Leaving aside the fact that the legal cases against Cinthia, Yaremis, Sulmira and Olesya were permeated by various types of abuse and irregularities, their situations reveal how an overly broad law, which does not incorporate a human rights perspective or gender approach, can leave room for arbitrary interpretation, even when it stems from a legitimate effort to limit the circulation of misleading information. When the true agents of disinformation are members of the state, for example, merely questioning their statements can result in threats, accusations, detention and sentencing.
In his 2019 report, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association notes: “A surge in legislation and policies aimed at combating cybercrime has also opened the door to punishing and surveilling activists and protesters in many countries around the world.” Laws such as these, which seek to combat cybercrime or the spread of fake news, may serve to punish online expression and association through the use of vague and ill-defined terms applied discretionally, which produces legal uncertainty and can have a chilling effect, preventing people from using the internet to enjoy their rights.
The OAS Joint Declaration on Freedom of Expression and "Fake News", Disinformation and Propaganda states: “General prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’, are incompatible with international standards for restrictions on freedom of expression.”
“Protection” as a weapon for gender censorship
Although states clearly have international obligations to act forcefully to protect the rights of people in digital spaces, the reality is that most cybercrime laws are ultimately ineffective, disproportionate and tend to have the opposite effect.
Organisations like Body & Data and Pollicy have identified laws that, while theoretically drafted to protect people, are ultimately used to censor and criminalise. The case of Yamen, a 25-year-old gay man living in Amman, Jordan, was documented by Human Rights Watch and reveals how institutions that should offer protections against online violence end up instead being instrumentalised to punish certain gender expressions.
Yamen was the victim of extortion and threats by a man he met through an online dating app. When he filed a report in 2021 with the specialised unit in charge of such matters in his country, he was not simply ignored, but was ultimately accused and sentenced for “online prostitution”, under the same cybercrime law that he invoked to protect himself against the violence he faced.
In the case of Stella Nyanzi, an accusation of cyberbullying was used to arrest her and keep her in a maximum security prison. Her crime was posting criticism on Facebook against the president of Uganda and the first lady – who was also Secretary of Education – after the government backtracked on a campaign promise to deliver free menstrual products to schoolgirls. In her post, Stella referred to the president as “a pair of buttocks” and his wife as “an empty brain”. She was detained twice, once for 33 days and once for 16 months.
In Uganda, the crime of cyberbullying is defined as the use of a computer to make any request, suggestion or proposal which is obscene, lewd, lascivious or indecent; to threaten any person or their property with physical harm or damage; or knowingly permit the use of such devices for these purposes. The crime is punishable by fine, up to three years in prison, or both. As Pollicy points out, the law does not offer any definitions for “obscene”, “lascivious”, “lewd” or “indecent”.
While concepts like cyberbullying and cybercrime are used to legitimise actions taken by those who hold political power to silence criticism, and the institutions that should offer protection operate instead as moral police, the victims of TFGBV still have no tools to guarantee them access to justice.
An opinion issued by the United Nations Working Group on Arbitrary Detention categorised the imprisonment of Stella, a renowned academic and activist for gender equity and the rights of LGBTQIA+ people, as arbitrary. It also stressed that overly broad laws with vague definitions such as this may have a chilling effect on freedom of expression.
In the case of Olga Mata, the charge against her was committing a “hate crime.” Olga, a 73-year-old woman, had posted a humorous remark in which she insinuated that the first lady of Venezuela would become a widow. According to the 2017 Hate Crime Act, whoever “publicly fosters, promotes or incites hatred, discrimination or violence shall be sentenced to between 10 and 20 years in prison.”
While concepts like cyberbullying and cybercrime are used to legitimise actions taken by those who hold political power to silence criticism, and the institutions that should offer protection operate instead as moral police, the victims of TFGBV still have no tools to guarantee them access to justice. Almost 40% of people who reported suffering serious incidents say they did not seek help, and less than 10% say they sought formal support through platforms, governments, police or civil society organisations, according to a study by the Centre for International Governance Innovation (CIGI).
A real risk
Mapping cases like the ones reported here on a global level is a difficult task, but it was made possible by the documentation and initiatives of human rights organisations. The effort undertaken by Derechos Digitales, with the support of APC, reveals how frequently cybercrime laws are abused to restrict expression. A systematic study would be valuable for finding more evidence and collecting lessons for the generation of balanced and proportionate responses to the crime that occur with the support of technology, and particularly TFGBV.
There is legitimate concern over the way in which hate, violence and disinformation inhibit the participation of women and LGBTQIA+ people in public decision-making spaces, duly indicated by Special Rapporteur Irene Khan. TFGBV warrants legislative and institutional response, but simply creating rules on cybercrime is not enough, particularly when dealing with historically marginalised groups. In fact, such laws can pose a hazard to the enjoyment of human rights because they can be manipulated to silence and criminalise those they should be defending, as Yamen’s case illustrates.
Although the types of legislation that underpin the accusations in each of these cases vary, they are all based on legal concepts that criminalise online discourse to an extent that exceeds current standards on freedom of expression. In general, these are ill-defined, generic concepts that are open to interpretation by the powers that be. The risks are further magnified in contexts where democratic institutions are fragile.
The cases identified here show that despite a growing number of cybercrime regulations around the world, not only are these ineffective at protecting expression by women and LGBTQIA+ people, they actually place them at risk –even more so in countries where there are legal restrictions against certain gender expressions.
As discussions progress on the new global cybercrime convention at the United Nations, it is important that these points be considered, because this convention might set the standard for countries that are still developing their cybercrime laws, or legitimise existing local laws. Besides avoiding the inclusion of content restrictions that enable manipulation by certain states or institutions, it is crucial that mechanisms be devised to guarantee a gender perspective throughout the conceptualisation, implementation and monitoring of cybercrime laws and related legislation.
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