Blocking ride-sharing applications goes against free speech and human progress

by | Sep 13, 2018

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About Esteban Russell and Leonardo Orlanski

Esteban Russell, graduated from University of Buenos Aires (2000) as attorney and obtained a postgraduate degree in Telecommunications Law (Austral University, 2001), in Corporate Law (University of Buenos Aires, 2003-2004) and a Specialization in Administrative Law and Economic Regulation (Universidad Católica Argentina, 2006-2007). He is a partner at Orlanski & Russell Abogados.

Last year, a local court of Buenos Aires ordered the blockage of Uber’s app and website nationwide in Argentina. The decision stated that Uber had to be blocked (and banned) since its drivers occupied public spaces to engage in commercial activity, and that was a misdemeanor. On June 18 this year, the decision was overturned by the Superior Court of Justice of the City of Buenos Aires. The Court held that an unrestricted measure such as the national blockage would unnecessarily and disproportionately harm the human rights to free speech, access to information, and the principle of net neutrality.

The Superior Tribunal, particularly Minister Ana Conde’s concurrence, highlighted the net neutrality principle, claiming that it “promotes in general terms that the freedom of access and choice of users to manipulate, send, receive, or offer any content, application or service through the Internet, is not conditioned or restricted by means of blockades, deletions, leaks or obstructions but as a last ratio and only for the prevention of an act or conduct that ignores other fundamental rights … ”

In this decision, the Court made an implicit choice over its understanding of what was protected under the right to free speech. Rather than a narrow view of political speech as the only type of speech protected, it went for a different path: holding that every idea is in principle free from censorship and is protected by the right to free speech (excluding that which is prohibited under international and regional treaty law, including – child pornography, war propaganda or hate speech that constitutes direct incitement to violence, direct and public incitement to genocide). In the context of this case, blocking a ridesharing app affected commercial free speech – allowing drivers to offer their service, consumers rights to access to information – on transportation services – as well as innovators rights to improve the service with a different app that works better than the existing ones.

The wide understanding given to the type of content protected by freedom of speech (and freedom of access to information and choice of users) to be fully available on the internet marks this decision as a precedent to be followed. By doing this, the Court enhanced the internet as a safe space for human flourishing.

The Superior Tribunal’s decision found that the blockage affected rights which include “access and exchange of information (as constitutive elements of freedom of expression, which in our area has special protection by constitutional and conventional rules); the acquisition of knowledge and transmission of them through the use of content, tools and applications; and the possibility of any user of that global network (internet) to communicate or freely interact in it”. This finding entrenches the idea that there is an intrinsic relationship between the ability to communicate and human progress. Protecting free speech fosters economic progress, because “the exchange of ideas is an important component of an innovative economy.”

The right to freedom of expression serves an important purpose, the protection of which is of the utmost importance. The international human rights treaties thus strongly protect this right. For example, the American Convention on Human Rights clearly states in its art. 13: “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice”. The wide definition of freedom of expression by the court is in line with this wide treaty definition of freedom of expression and is otherwise correct in that freedom of expression contributes to innovation, economic growth, scientific development and artistic creation.

Technological change is exponential and non linear.  As we have discussed before, international law has recognized another right that is relevant to this case: the right to benefit from scientific progress and its applications. Keeping the internet free of censorship and strengthening its open structure, is critical to enabling others to build on previous knowledge, and it can only be done through a wide understanding of the type of expressive messages protected through the right to free speech. Progress is not only a matter of protecting speech to promote self government. It is a matter of improving every single life by allowing each member of the community access to all kinds of knowledge, services and ideas.

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