Mr. Prosecutor, unblock me!

On March 20, the Supreme Court of Mexico ordered a public official, the prosecutor Jorge Winckler, to unblock a journalist from his Twitter account. The reason? The blockade, in the opinion of said Court, constituted a "violation of the journalist's right to information which, in this case, prevails over the public servant's right to privacy."   

In fact, this would not be the first time that a court ordered a public official to unblock people on Twitter. In May of the 2018, the federal judge, Naomi Buchwald, ordered the president of the United States, Donald Trump, not to block users who had a different political discourse from him in the aforementioned platform.

As we see, jurisprudence tilts the balance for the protection of the right to freedom of information and expression. However, it is interesting that these precedents analyze the relevance and above all the importance that social networks play in these situations.

On this, we must point out that the jurisprudence of the Inter-American Court of Human Rights (I / A Court HR)[1] In good sense, it has already taken a position on the classic conflict between the right to freedom of information and expression and the right to privacy in the case of public officials. This has been applied by the Mexican Supreme Court.

In summary, we can point out that "given the interest that the activities and functions of public servants have for the community, their right to privacy is more attenuated than the rest of society, since they are subject to greater social scrutiny "[2]. In this sense, there is a "blurring" in their privacy as members of society are interested in their activities as these could affect the community.   

But, perhaps the most interesting part is how this consideration is extrapolated and applied to the Internet and social networks, especially in the case of Twitter.  

Twitter is a microblogging platform through which people can communicate by messages of less than 300 characters. In this platform, users can manage their account by making it public (so that any user registered or unable to access its content) or keep it private (whose content is available exclusively for certain people).

Twitter is not just another social network, but it is the new "public square" where issues of general interest are raised and discussed. Twitter has become for many - and we include ourselves -, on the one hand, one of the main sources of information and, on the other hand, a powerful tool for the dissemination of information. So much so that the media, public entities and political parties use it to communicate - officially or not - matters of public interest.

In that sense, we agree with the Mexican ruling when it points out that Twitter is a tool that promotes and defends the freedom of expression of citizens. And in that sense, he recognizes his work of promoting democratic values.  

In this context, the Mexican Court, from our perspective, correctly analyzed the case of Prosecutor Winckler. He pointed out that although the Twitter account of the prosecutor began as a private account, the prosecutor himself, since his election as a public official, had used it to relate activities that he carried out during his administration.

At the discretion of that authority, "By including tweets related to his activities as a public servant, he voluntarily decided to place himself at a different level of publicity and scrutiny than a private person"[3].

Then, the blockade by the prosecutor was described as an "act of authority". This is an interesting interpretation because, it is recognized that activities-as simple as blocking a virtual platform-can be taken as official acts that violate the right to freedom of information. This is a new facet of the right to freedom of information and expression that are outlining and protecting judicial courts.

At this point, it is relevant to note that the Court pointed out that the complainant's right to information must be guaranteed only because he is a citizen. However, in the specific case, this protection was "reinforced" because the citizen was a journalist in the exercise of his work.

The Court recognizes that the press plays an essential "watchdog" role in a democratic society by communicating ideas and information on matters of public interest. Therefore, he considered that the journalist, with greater reason, should have access to the prosecutor's account in order to fulfill his duty of information.

Naturally, some will think, and what happens with comments with content in the form of threats, insults, slander, coercion or incitement to violence? In this regard, the Court is emphatic in stating that such comments are not protected by the right to freedom of information or expression, however, its ruling is not conclusive as to what actions should be taken in case it occurs. It seems that in these cases if you are accepting that it is correct to perform the block or the user's complaint. 

Finally, it is pointed out that unlocking is a reasonable and proportional measure to the exercise of the right to freedom of information. However, it is convenient to bring up, the case resolved by Judge Buchwald, in which he ordered Donald Trump not to block users, because during a hearing prior to the final sentence, he proposed that "silencing" was the best option before the " blocking".

As we know, the option of "silencing" on Twitter implies that the user who silences will not be able to see the activities that the person who "silenced" performs. In this regard, some people blocked by Trump considered that such action would not solve the underlying problem. For the silencing would seek to suppress the contrary discourse by evading the debate. In this regard, we consider that both silencing or unlocking are equally reasonable options whose application could depend on each specific case.  

However, in this debate, there is still a lot of bread to be sliced, and jurisprudence will be complemented with new cases. Meanwhile, the analysis carried out by the Mexican Court is applauded. We believe that this type of precedents enriches and provides greater analysis tools to judges, which, for example, in the case of Peru, we are waiting for a pronouncement that includes these guidelines.


PAGE NOTES:

[1] In this regard, review: I / A Court HR Case of Kimel v. Argentina, ruling of the 2 of May of 2008; Case Herrera Ulloa vs. Costa Rica, 2 ruling of July of 2004. Case of Tristan Donoso v. Panama, ruling of the 27 of January of 2009 among others.

[2] Sentence of the Mexican Supreme Court. Amparo in Review 1005 / 2018. Considering 171.

[3] Sentence of the Mexican Supreme Court. Amparo in Review 1005 / 2018. Considering 185.

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María del Pilar Segura
Lawyer from the Pontificia Universidad Católica del Perú (PUCP). I am interested in topics related to Competition Law, Data Privacy and Digital Regulation. I believe in freedom with responsibility. Contact: mapi.segura@lawgictec.org

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