Chile’s freedom of expression record may be deteriorating. In 2012, after police and government authorities actively repressed media coverage of demonstrations by university students and Mapuche indigenous groups, Chile dropped 47 positions in Reporters Without Borders’ global freedom of expression ranking. This is troubling, particularly given Chile's strong policies on Internet rights — Chile became the first country to legislate Internet neutrality in 2010.
The Luksic Case
A recent case involving billionaire Andrónico Luksic, who has accused a Twitter user of “usurpation of identity” for running an account that mocked Luksic, also presents a threat to free expression. But it is different from the cases above. Here, it appears that the judiciary and powerful business interests in Chile might have cooperated with one another to suppress freedom of expression online.
In 2011, Chilean lawyer Rodrigo Ferrari noticed that a parody Twitter account (@losluksic) he had created, where he mocked the very rich and powerful family, had been deactivated. Ferrari chose not to appeal the case to Twitter. What he did not know was that the account was closed due to a two-year investigation involving Mr. Luksic, Chilean government authorities, the US government, and Twitter.
Despite the clearly parodic nature of tweets sent from the account, Ferrari will soon be tried for usurpation of identity (related to but different from identity theft), a crime that can carry a penalty of 61 to 541 days in prison under Chilean law. If Ferrari is found guilty, the case could set a disturbing precedent for both free expression and privacy in Chile.
This is not the first time Mr. Luksic (listed on the Forbes 500) has sought to make expressive content unavailable to the public. Luksic has worked to stop the circulation of books via court injunctions and has requested take-downs of videos from YouTube.
Breach of Due Process?
The right to freedom of expression, enshrined by Chile’s constitution, should clearly protect Ferrari, who was merely exercising this right by commenting on a public figure. Chile's constitution [es] and Law on the Protection of Private Life also protect individual privacy, and Chilean law requires prosecutors to obtain a court order when seeking a user's identity information. Yet it appears that authorities circumvented this requirement in Ferrari's case. Chilean authorities requested assistance from the US Department of State, which in turn worked with the US Department of Justice to produce a court order requesting relevant identity records from Twitter.
Because Twitter's policy is to comply with all requests made by court orders issued in the US, Twitter cooperated and provided the necessary data to identify Rodrigo Ferrari. With this information Mr. Luksic and his attorneys were able to pursue their case. It is unclear whether Twitter ever notified Mr. Ferrari of the investigation of his account.
The definition of “identity theft” is different in Chile than in the US — under Chilean law, a claimant does not need to prove that the defendant gained any economic benefit from the crime in order for the defendant to be found guilty. This distinction may call into question the decision of US government agencies to comply with the request from Chilean authorities.
If the information that advocates have gathered proves true, the case will embody an alarming breach of due process and rights to privacy and free expression.
Chilean NGO Derechos Digitales [es] [Digital Rights] and Derechos Digitales’ director Claudio Ruiz are defending Ferrari in court. Ruiz expressed his concerns about this case in an open letter [es]:
El caso de Andrónico Luksic muestra gráficamente estas fisuras de la libertad de expresión. Muestra, además, el excesivo celo con que el Ministerio Público ha actuado persiguiendo un delito de bagatela, utilizando recursos fiscales por más de dos años sin haber mostrado, incluso al momento de la formalización, siquiera indicios de la configuración de un ilícito penal respecto de Rodrigo Ferrari. La prepotencia que ha mostrado el sistema judicial tiene un efecto perverso, incluso en caso de ser demostrada la inocencia de Ferrari: ¿Estaríamos dispuestos a criticar en público si sabemos que podemos ser expuestos a persecución criminal?
The case of Andronico Luksic graphically illustrates fissures in freedom of expression. Moreover, it shows the disproportionate zeal with which the office of the public prosecutor in Chile has sought to prosecute a crime of minor importance, using public funds for up to two years, without proving, even in the moment when the charges were formalized, any traces of evidence that a crime was committed by Mr. Rodrigo Ferrari. The arrogance shown by the judicial system has a perverse effect, even if Ferrari’s innocence is proven. Will we continue criticizing [public figures] if we know we could be criminally prosecuted?
In a brief interview with La Tercera Newspaper [es], Luksic responded to criticism saying that he sees no parody in the account and that freedom of expression must be exercised under a person’s own name. The interview did not address whether the account actually caused Luksic any damage. Luksic refused to respond when asked whether he would pursue legal actions against other accounts using the “Luksic” name – several have been created since the case became public.
After confirming the involvement of US authorities in the case, US-based advocacy groups have begun to speak out on the issue. Campaign organization Access filed a Freedom of Information Act (FOIA) request to “ask which governments are requesting user information through mutual legal assistance treaties.”
PEN America wrote a letter to US authorities demanding an explanation of the situation:
In a letter to Secretary of State John Kerry and Attorney General Eric Holder, PEN expressed concern about the disclosure of user information, which reportedly occurred without a formal subpoena from the court hearing the case, and pointed out that Mutual Legal Assistance Treaties allow countries to refuse to such requests in cases where the prosecutions are meant to suppress freedom of expression. Noting that promoting Internet freedom has been a top policy priority of the Obama Administration, PEN warns that “complying with the request for user information that led to the identification and prosecution of Mr. Ferrari undermines the principles that the State Department has worked in so many ways to advance.
PEN’s letter requests information clarifying the involvement of the Departments of State and Justice in the disclosure of Mr. Ferrari’s identity, as well as “information on how such requests are evaluated to ensure that information concerning digital media users is not divulged in cases with free expression implications.”
Global Voices Advocacy requested information on the case from Twitter. Attorneys at Twitter responded but could offer no comment on Ferrari's case.
Support the #FreeRod Campaign
Derechos Digitales is leading a campaign [es] asking for all charges against Ferrari to be dropped. The campaign and its supporters are communicating and promoting their cause using hashtag #FreeRod. In solidarity with this effort, many users have created accounts incorporating the Luksic name.
If Mr. Ferrari is found guilty due to evidence obtained using methods that disregard due process of law, and if the judge does not acknowledge that parody is a protected form of expression, there may be a harmful chilling effect on anonymity, privacy and freedom of expression in Chile. The case could hinder the efforts of citizens to respect and fully exercise their fundamental freedoms, online and off. It is troubling that the case has been aided not only by the circumvention of due process by Chilean authorities, but also with the collaboration of the US government, a vociferous promoter of online rights throughout the world.
Staff at Derechos Digitales, the Electronic Frontier Foundation, and Twitter provided background information for this post.