Concerned About New Telecommunications and Cybersecurity Regulations in Cuba, IACHR and Its Special Rapporteurship for Freedom of Expression Note the Risks these New Regulations Pose for the Exercise of Fundamental Liberties on the Internet

September 22, 2021

Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) and its Special Rapporteurship for Freedom of Expression are concerned about new telecommunications and cybersecurity regulations in Cuba, which allegedly restrict and criminalize discourse that is not only legitimate but also protected by the Inter-American Human Rights System. The IACHR and its Special Rapporteurship therefore call on the State to enable the full exercise of freedom of expression by ensuring that its regulations comply with the relevant international standards.

Through various monitoring mechanisms, the IACHR and its Special Rapporteurship have received reports on the impact that Executive Order 35 on Telecommunications and Resolution 105 in Response to Cybersecurity Incidents —both of them published in the Official Journal on August 17— will have on the exercise of freedom of expression on the Internet and on users' right to privacy. Civil society organizations also allege that these regulations are part of a broader scheme to exercise State control over dissidents and social protests, since the Internet has become a crucial platform to exercise the right to protest in Cuba.

In particular, the IACHR and its Special Rapporteurship for Freedom of Expression warn that the new regulations might restrict critical and dissident views, among other forms of discourse of public interest, while allegedly protecting security, law and order, national defense, and other government interests. Some of the new rules adopt broad and imprecise categories that would allegedly enable their arbitrary and discretionary application by the State. As the Commission has said in the past, vague or ambiguous regulations that grant the authorities broad, discretionary powers are incompatible with inter-American standards. These sorts of regulations might enable arbitrary actions that are tantamount to prior restraint or that impose disproportionate responsibilities for forms of discourse that should in fact be protected.

In this context, Executive Order 35 asks users, among other obligations, to refrain from using the Internet to broadcast information that offends "public morality," and to prevent the use of telecommunication services with the aim of "subverting security and domestic law and order within the country, or broadcasting fake data and news." Resolution 105 on Cybersecurity mentions actions like "social subversion," "spreading fake news," and "harmful dissemination" of information. With these regulations in place, calling to social demonstrations, spreading "offensive messages and libel that affect the country's reputation," and promoting "lack of social discipline" would be considered "high risk" and "very high risk" cybersecurity incidents that would therefore be punished. The enforcement of these regulations could be particularly dangerous given the challenges posed by Cuban institutions with regard to democracy. The IACHR report Situation of Human Rights in Cuba (2020) considers that the country lacks crucial elements and institutions that are required in a representative democracy, that there is no judicial independence, and that there is only limited separation of powers.

Some of the goals that Executive Order 35 and Resolution 105 mention to justify restricting freedom of expression are not consistent with inter-American human rights provisos. Some examples involve the need to protect "the country's reputation" and "social discipline," and the goal of ensuring the stability of "mass structures." The IACHR has stressed in the past that States are not free to interpret the content of these goals as they wish, simply to justify restricting freedom of expression in specific cases. As the Inter-American Court has stated, goals aimed at preserving law and order cannot be invoked to suppress, denature, or deprive of real meaning a right that is held in the Convention. These goals must be interpreted in a way that strictly adheres to the fair demands of democratic societies.

The IACHR and its Special Rapporteurship are also concerned that the prevention, detection, and response efforts that the State proposes to adopt in Resolution 105 on Cybersecurity might imply the implementation of institutional systems to monitor and screen Internet content, leading to the prior restraint of posts. The IACHR and its Special Rapporteurship stress Principle 5 of the IACHR's Declaration of Principles on Freedom of Expression, which states that prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information must be prohibited by law.

The IACHR and its Special Rapporteurship therefore stress the recommendations made in the special report Freedom of Expression in Cuba (2018) and call on the State to adapt its rules to the international regulations and principles of human rights. In particular, the Special Rapporteurship for Freedom of Expression stresses that all public policies on this matter must protect the multidirectional nature of the Internet and allow the search and dissemination of information and ideas of all sorts, not simply those that reflect the official interpretation of the national interest.

The Special Rapporteurship for Freedom of Expression is an office created by the IACHR to promote the defense of the right to freedom of thought and expression in the Americas, considering the fundamental role that right plays in the consolidation and development of any democratic system.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 249/21

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