A debate is doing the rounds of Cuban networks and media regarding Decree Law 370 (DL370), “On the computerization of society in Cuba,” which, approved in 2018, came into force in July 2019. The norm regulates essential content such as promotion of computerization, government and electronic commerce, as well as the use of computer science for educational purposes. Different positions discuss its relationship with freedom of expression.
Certainly, the DL370 regulates expression through public data transmission networks. In this text, I first dwell on the general aspect of freedom of expression and then comment specifically on the regulations.
Freedom of the press, freedom of expression and the right to communication
Articles 53, 54 and 55 of the Cuban Constitution (2019) regulate the right to information; freedom of thought, conscience and expression; and freedom of the press. They are related rights, but they don’t mean the same thing. They are based on the freedom that every individual, and groups, must have to express themselves and receive information, but they are concepts that have evolved as the dynamics of communication and the political notions that account for it have become more complex.
Freedom of the press and freedom of expression
“Freedom of the press” is an old formulation. If it is reduced to some of its main approaches, a liberal current is seen that fundamentally imagines the press as a “watchdog,” essential for the opposition to power and the denunciation of government activity, and as a resource to maintain individual freedoms. The Marxist tradition, expressed in Rosa Luxemburg and Antonio Gramsci, for example, claims with it the capacity of popular subjects to build the space of the political, answer the media and generate critical sense.
Marx conceived of freedom of the press as a presupposition of rights: “If there is no freedom of the press, all other freedoms are illusory.”1
In Cuba, Céspedes, Agramonte and Martí defended the freedom of the press. In the 1930s, printing workers understood that it also encompassed the material possibility of expression and fought the monopoly of the Trust Gráfico.2 In the 1950s it was crucial for the lives of revolutionaries and for the program of the revolution.3
The term “freedom of the press” usually refers to the media, such as print media, radio and television, and recently also to cyberspace. Its regulation is usually accompanied by the right to create media, linked in turn to the right to express thought by any means.
“Freedom of expression,” on the other hand, implies the freedom to seek, receive and disseminate ideas and information of all kinds and by any means. Thus, it includes more than the press.
Raúl Roa thus argued its need: “Freedom of expression is a biological imperative for underdeveloped or dependent nations, compelled to defend their being and promote their future through critical analysis and public denunciation of the origin and provenance of their ills, vices and deficiencies.”4
The right to communication
The “right to communication” is a more recent concept. It is “the right to inform and be informed, to speak and be heard, essential to be able to participate in decisions that concern the community.” It goes beyond the media, and includes all the actors that participate in the communication and information production processes.
Thus, communication is understood as a social process of construction of meanings.
Its origins are found in the UNESCO MacBride Report (1980). It has been defended in international forums and several Latin American Constitutions include it: Venezuela (art. 57), Ecuador (art. 16) and Bolivia (art. 106).
The formulation of the “right to communication” has advantages over that of “freedom of the press.” Among them: it rearticulates the rights of opinion, expression and information for the context of a society crossed by the power of information and communication; it makes it possible to dispute the structure of ownership of the means of expression―very oligarchized in today’s world―while insisting on the need to distinguish between public, governmental and private media. It also recognizes the public functions of communication: it requires state transparency and free access to public information, while demanding that citizenry be built through informed political participation.
In short, the right to communication comprises multiple demands for the democratization of access to communication, information, knowledge and new technologies, from an approach that integrates citizenry, freedom and quality of life.
The nature of the right to free expression
Treating freedom of expression as a civil right, or the right to communication as a public service or a public good has several consequences.
If free expression is considered only a civil right, it is presented as a “negative” freedom, which obliges other individuals and public powers not to intervene on it. The prohibition to interfere in its exercise has a positive side: it protects the expression. But, at the same time, it complicates any intervention to correct the excesses in the exercise of that right. In this, it is the most marketable of civil and political rights: it can be accumulated and monopolized. It allows any person, or group, to enter a “market of ideas” to buy and sell them with the consequence that the most exposed will be those that are backed by the largest amount of money. With this, it causes a violent concentration, and consequent reduction, of the information sources. It’s not necessary to be a socialist to worry about this problem.5 The idea of the network’s neutrality―so much fought against by Trump and defended by a diverse political arc―objects to the private monopolization of the internet.
On the other hand, considering the right to communication (which includes freedom of expression) as a public service follows a different path from understanding free expression only as a civil right. The idea of public service describes communication as a strategic resource. It aims to guarantee the management of a service of public interest for the benefit of citizens. Ecuador moved in that direction with the Organic Communication Law (LOC) (2013). Its proposal had foundations: more than half of the citizens expressed mistrust at the time in their written press. Following a popular consultation, the LOC banned bank owners from owning media and distributed spaces among three forms of media ownership: public, private, and community. However, the proposal had problems: it did not succeed in completely separating the State from the government nor, specifically, distinguishing between public and governmental means.6
A part of Marxism has understood communication as a public good and has considered it a “critical nexus” between institutions and citizens. It starts from the assumption that communication plays a decisive role in the control that the citizenry (constituent) must exercise over the State (president). The idea assumes that it is essential to control the asymmetry of information that, due to the resources available to it, the State concentrates in its favor.
This logic can be assumed in different ways. Some propose a public monopoly on the communication infrastructure, which can support public and private media; while others support full public ownership of infrastructure and the media, provided that they are not subordinated to government or partisan agendas. The purpose, in both cases, is to achieve means of communication not subject to the absolute power of the market or the discretionary decision of the public powers.
From this point of view, freedom of expression not only supports, but needs regulations to function better. That is also the logic of a democratic Republic. If the Republic wants its citizens to collectively build the common good, it must establish rules of the game and resource allocation policies that prevent that the accumulation of the right of some to express themselves dispossess others.
From this perspective, there is no contradiction between the individual right to free expression and public management of the conditions in which it must be democratically deployed. The right to expression exists and the State must act to guarantee the conditions of its distributed practice. The core of the question lies in how to intervene on this right from the public, with legitimacy, and in favor of multiplying the capacity for expression. But it must be recognized as a problem, as a tension that cannot be dismissed with slogans in theory, nor with ukases in political action.
Cuba, regulation and proposals on the right to communication
The “Social Communication Policy of the Cuban State and Government,” approved by the Communist Party of Cuba, indicates that “the mass media, in any format or technological support, constitute a public good and service.” It considers communication a strategic resource, in the style of the Ecuadorian LOC. Instead, the Constitution (2019) falls several steps behind: it regulates only “freedom of the press,” without considering the right to communication or the idea of public service. Therefore, it does not face its problems or proposes solutions.
The Cuban Constitution uses the term “mandate,” typical of the logic of president and constituent, but its regulation on freedom of information and of the press disregards the purpose of controlling the asymmetry of information, which is inherent to that conception. Article 53 regulates the right to information in the most limited way this right is addressed, when compared with the Constitutions of Venezuela, Bolivia and Ecuador.
The new text contains progress regarding the 1976 Constitution and its reforms. The current article 55 regulates that the “fundamental means of social communication, in any of its manifestations and supports, are socialist property of all the people or of the political, social and mass organizations; and they cannot be the object of any other type of ownership.” For this reason, it authorizes the existence of non-fundamental means, which could be, for example, community media or communication cooperatives.
There are proposals, such as that of Julio García Luis, that dialogue with the logic of the State as president, due to its emphasis on citizenry. The professor and journalist proposed a model that, based on the (public) social ownership of the press, ensured “the pluralism of opinions and the exercise of a press placed above private and group interests.”7
Neither the possibilities of the constitutional mandate nor proposals like that of García Luis have yet found space for their deployment.
DL370: what is it and who defines morality?
The DL370 was approved months before the promulgation of the Constitution. Its most debated article has been 68, subsection i, which sanctions as a contravention “the spreading, through public data transmission networks, information contrary to social interest, morality, good manners and the integrity of persons.”8 Their debate was intensified by fines applied to independent journalists in the context of COVID-19.
Restricting freedom of expression for reasons of morality or public interest is common in inter-American law. However, defining its contents is very complex anywhere.
The DL370 uses “indeterminate concepts,” a common thing in other legislation. The concepts “social interest, morality and good manners” are indeterminate. They provide a legitimate starting point for later qualifying fact situations that were not initially specified.
At the international level, there is a consensus to restrict expressions through the internet that involve discriminatory actions, online violence, threats to national security or child pornography. These should be fact situations specified based on those indeterminate concepts.
In this area, legitimacy requirements are usually demanded for restrictions on online expression: the establishment of the restriction in clear and precise rules; that they respond to the danger of real, credible and imminent harm; respect for the principles of necessity, suitability and proportionality—to avoid broad or ambiguous regulation, which favors arbitrary decisions—and to have specialized institutions in charge of the matter, autonomous in their operation, in addition to judicial guarantees.
Many governments claim to meet that set of requirements, but research shows that almost half of the standards on the subject are problematic: they do not meet one or more of them.9
It is infrequent, and conflictive, to assume indeterminate concepts as if they were fact situations. In other words, confusing a foundation to be defined with a fact. That is what the DL370 does. In doing so, it addresses a complex problem everywhere as simple: who decides and how on what is moral or contrary to public interest.
On the other hand, an administrative authority―whose decision is reviewable in courts―can do this, but it is more advisable and common to resort to judges. These must proceed with public reasons, among other guarantees of transparency. The DL370 gives such a definition to inspectors of a ministry.10 This occurs in a normative context in which there are no communication or protection of constitutional rights laws―it should come out next October―nor mechanisms such as constitutional jurisdiction or the ombudsman’s office.
DL370, communication and freedom of expression on the internet
The DL370 has other problems in the field of communication.
Its text privileges a security approach. Article five establishes its eight objectives and only one of them explicitly refers to the citizenry: “promoting and favoring the access and responsible use of ICTs by citizens.”
The norm recalls regulations of the principles of “the internet age” in the country, such as the now repealed Resolution 127 of the Ministry of Informatics and Communications (2007). However, since then, conceptions, actors, practices, structure and use of the internet have changed a lot in Cuba and in the world.
Personal expression on the internet cannot receive similar treatment as the press, institutional communication or mass communication. The regulatory approaches of the written press or television are not simply “applicable” to the internet, as they are of a different nature.
Individuals can, from YouTube or Facebook, have more impact than the press. But they continue being persons who exercises their right “to freedom of thought, conscience and expression” (Cuban Constitution, art. 54). Furthermore, Facebook and YouTube are not public networks―neither is the state monopoly ETECSA―they are private networks that already restrict content, often tragically. Applying more restrictions to their contents requires justifying, at least, why the former are insufficient.
None of the notions of communication as a right, service or public good privileges the security approach. José Vidal has pointed out that communication policies in Cuba must be placed in “a framework that goes beyond, although of course includes, the perspective of national security and opens up to the perspectives of understanding digital networks and their use as basic infrastructures for development, as an issue linked to the right to communication, to the democratic and transparent functioning of public institutions, and as a process that generates well-being and improves quality of life.”
According to a text in Granma, “each Cuban with some use of the internet, has received in one way or another, a number of fake, malicious content, designed to create alarm, panic, mistrust and disinformation, to make us sick beyond the virus.” The text calls for sanctions for those who circulate online content considered to be of this nature, and reviews examples of how other nations do it.
Freedom of expression does not include conscientiously misinforming, much less lying, and must be protected against it. However, the fines applicable by DL370 cannot be based on “faking,” or the “bad intention” of what has been expressed or on political reasons, since said norm does not mention such words. There are other legal instruments that regulate the dissemination of fake news and that enable those accused of crimes against State security to be prosecuted through due process.
None of the above, according to the grounds for the fines imposed by the Ministry of Communications, has to do with the DL370 or, consequently, with the fines. Therefore, any use of the DL370 to sanction content outside its scope of action involves problems of arbitrary application and legal insecurity.
The DL370 does offer a starting point for sanctioning, describing them, contents that suppose discrimination―racial, gender or of any other type―, that violate the privacy or the rights of consumers, practice cyberbullying, media lynching, and publishing personal data of third parties or that defend hate speech. However, so far there is no news of having used the DL370 to sanction subjects who have committed this type of action.
Defending the right to state action involves placing it in a dependent relationship with the rest of the enshrined rights and with all its holders. One right can and should be limited by the rights of others, but it never suppresses them.
Recognized rights and communication law
The creation of a norm on social communication is planned for the 2023-2028 legislature. By then, seven decades will have passed since 1959 without law for the field.
Certainly, it is an old problem: since the origin of Cuban constitutionalism in Guáimaro, the country has not had organic laws on communication. This does not justify the current lack of. It should be in the interest of the State and of the public to immediately approve a communication and information law. Leaving unregulated the means and modes of expression―state and non-state, personal expression on the internet and any other form of circulation of speech―is to perpetuate conflicts, outlaw conducts that are constitutional rights and discard the field of possibilities offered by regulating communication as a right.
A well-known axiom assures that “the best press law is the one that does not exist.” It seems like a democratic thesis, but it is the opposite. With this logic, only he who already has power over the press wins.
Marx knew this very well: “Very far, then, that the press law is a repressive measure against freedom of the press (…) it would have to be considered, on the contrary, that the lack of press legislation is an exclusion of the freedom of the press from legal freedom, since legally recognized freedom exists in the state in the form of law. Laws are not repressive measures against freedom. A code of laws is the Bible of a people’s freedom. The press law is therefore the legal recognition of freedom of the press.”11
The press model that considers that a few transmit everything to a passive audience was worn-out long ago. Bringing the idea of the “bible of a people’s freedom” to 2020 means regulating the universalization of access to information and communication technologies, establishing the internet as a public service, as well as an inalienable human right, instituting information as a public good, establishing “fourth generation” rights (respect for the diversity of ideas, the right to virtual existence and the right to privacy and anonymity), making viable citizen participation in and on the digital sphere and establishing the right to communication.
To generate security for the Cuban State and for its citizens is also to produce consensus on fair law and to generate normative loyalty around its legal system. That is, having a civic culture of respect for the law that we are interested in defending because it is fair and because it improves the conditions of our coexistence.
1 K. Marx, “On Freedom of the Press. The articles of the Rheinische Zeitung 1842-1843,” Valencia: Fernando Torres publishers, 1983, p.102
2 According to the Union of Graphic Arts Workers―founded by Alfredo López―the Trust set “the prices they want and since they are also importers of paper, ink, and other articles related to this industrial work, they establish the conditions of the market, eliminating free competition and strangling independent printers.” C. Fernández, “El proletariado contra el Trust gráfico,” Voz Gráfica, No. 6, 1936, p. 26.
3 Carlos Bastidas Argüello, a 23-year-old Ecuadorian journalist, was assassinated by the Batista dictatorship in 1958 for reporting the revolution. He is the last journalist killed in Cuba since then.
4 Rául Roa García, “La Conferencia Interamericana por la libertad de la cultura.” In En pie, Universidad Central de las Villas, Havana, 1959, p. 195
5 Owen Fiss proposes intervening in the structure of media ownership to create better conditions for plural expression, as well as subsidizing and allocating resources to disadvantaged groups (Libertad de expresión y estructura social, Fontamara, Mexico, 1997).
6 See Hiram Hernández Castro, La década mediatizada. El conflicto político entre el gobierno y la prensa privada en el Ecuador (2007-2017), doctoral thesis, FLACSO-Ecuador, 2020.
7 García Luis added: “Within the single party system and the recognition of the leading and guiding role of our vanguard organization, we must find the methods and styles that guarantee the autonomy of the press organs, the powers of their editors and the professional practice of journalism.”
8 Subsection f (prohibition to “host a site on servers located in a foreign country, other than as a mirror or replica of the main site on servers located in national territory”) has also been questioned, on which the Ministry of Communications (MINCOM) “clarified” that, in the case of individuals, it refers to the national platforms and applications of services offered on the internet and used by citizens, not to blogs, personal or informative sites. The content of the clarification by the MINCOM does not appear to have been added to DL370 yet.
9 See Agustina del Campo, Libertad de expresión e Internet: desafíos legislativos en América Latina, Buenos Aires: University of Palermo, 2018.
10 The complaint mechanism includes appearing in court at the final stage of the process.
11 K. Marx, ob. cit., p. 82