Digital rights: the agenda under construction

The creation of the World Wide Web, better known as the Internet, has radically changed humanity over the last thirty years. Since then, several social processes have been transformed to the extent that there are entire generations that have lost links with the immediate past and do not conceive the world as “disconnected”. In 1990 only 0.25% of the world’s population had access to the Internet; last year almost 6 out of every 10 people were connected to the network.

In Latin America, the connection rate is even higher. In 2020, 67% of Latin Americans had internet access, with Ecuador, Argentina, Chile, Brazil and Mexico being the countries with the highest number of users. In a very short time, the Internet ceased to be an instrument comparable to radio, cinema or television and became virtual space or cyberspace, as an unfolding of real space.

A large part of the world’s population has moved its activities to cyberspace thanks to the creation of applications (app’s). According to Hootsuite’s We Are Social 2020 report, almost half of the world’s population interacts on the Internet through a digital social network every day. In Latin America, the average is 65%, with Argentina, Mexico, Colombia and Brazil leading the way, well above the global average.

E-commerce has changed consumer habits: last year it accounted for 4.4% of global GDP. In contrast, according to 2018 Latinobarómetro data, only one in four Latin Americans made purchases online or would be willing to do so. The same data showed that e-commerce has higher penetration in countries with higher GDP per capita, with more internet users and better human development index, such as Argentina, Chile, Uruguay, Costa Rica and Colombia.

In 2020, the Covid-19 pandemic intensified the use of the internet and its applications and accelerated some processes that were in transition such as telework and online education but did not significantly impact e-commerce. According to the Inter-American Development Bank’s report “Shock COVID-19: a boost to strengthen trade resilience after the pandemic”, exports of the region’s countries fell by -12%, a contraction significantly greater than the global contraction. Despite the sustained year-on-year growth of e-commerce, its share of regional GDP barely reached 2% in 2020.

Cyberspace as an unfolding of public space

Cyberspace opened up as a zone of emancipation from the public space dominated by politics, but in a short time it has been subjected to various forces: market competition, private morality and state control. What are its limits? The Internet is a service offered by private companies, but its use is public, which makes cyberspace practically a common good. It is within the reach of ordinary people, governments and public and private institutions, and in recent years the “traditional media” of communication have moved there.

Cyberspace is no longer just another means of communication but is literally becoming the space that competes with or even replaces everyday public space. Market relations dominate cyberspace and, if the state intervenes, it does so not as an intrusion but as a necessity so that people are not left unprotected.

Cyberspace creates situations, not so hypothetical, in which the law of the strongest prevails, i.e., behavior driven by passions rather than by reason. And this is probably the greatest justification for the need for digital rights.

New rights for a new (virtual) reality

People’s rights have emerged from historical-social circumstances that promote them and accelerate their incorporation into the existing system of rights, such as political and economic revolutions. Rights may disappear, be replaced by others, or entirely new ones may be created, such as digital rights.

However, the transformations of the last decades derived from the evolution of Technofisio, a term developed by Dora Costa and R. William Fogel, and the revolution of the new technologies that developed in the exceptional 20th century, force us to think of digital rights from a different perspective and they can be classified into three large groups:

The “non-translatable” are rights that already exist in all spaces and that are “stretched” to cyberspace while preserving their essence. Examples are the rights of justice and restorative justice, the protection of minors, the political rights of freedom, equality, association and non-discrimination.

Translated rights” derive from existing rights but need to be translated into cyberspace. For example, the protection of personal data, the restoration of moral damages, the digital will, freedom of consumption, the quality of online education, the quality of services provided by the private and public sectors and copyright, among others.

The digital rights themselves, of “new creation”, require a new language: free, equal and secure access to the network, which for some should be a human right; the right to privacy and intimacy, such as limits to geolocation; the right to be forgotten in virtual space; the right to disconnection, a labor right that must be implemented urgently; the right to non-obsolescence and portability, because it generates digital divides; the right to net neutrality, that is, non-interference with political positions and to combat political correctness; and above all, the right to truth, as a way of combating disinformation, known as infodemics and post-truth.

In several countries some of these rights have been incorporated slowly; in some others the pandemic is driving the need for them. In Mexico, in December 2020, labor legislation was amended to regulate teleworking and recognize the right to disconnect. In Argentina and Brazil, telephony and Internet access were declared “essential services”. But also, the lack of regulation allowed, justifiably but dangerously, the use of geolocation to identify cases of contagion, as in Brazil and Mexico.

Spain is probably one of the Iberic-American countries that has made the most progress in digital rights. Beyond the criticisms for its little discussion when the Organic Law on Data Protection was approved in Congress and the Senate in 2018, it is a pioneering law in the global context and includes many of the above-mentioned rights.

There is still a long way to go, but digital rights must be conceived from the principles of human freedom and equality. In their discussion there is a tendency to formulate supposed principles derived from private morality and political correctness, confusing rights with prohibitions, and this logic spreads through the network like a computer virus.

Prohibition may solve problems, but it does not create a better society. That is why digital rights should be thought of as a way to enhance existing rights, not to limit or cancel them.

*Translation from Spanish by Emmanuel Guerisoli

Photo by Hernan Piñera em Foter.com / CC BY-SA

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