What do U.S. copyright law, a Spanish firm, and free speech in Ecuador have to do with one another? More than you might think.
Over the past year, several Ecuadorians have seen content mysteriously disappearing from their personal Facebook pages, YouTube video channels, or Twitter accounts. The contents that vanished address a wide array of topics. However, they have only one thing in common: they criticize, mock, or expose the Ecuadorian government.
For example, in September, right after a violent police crackdown on protesters in Quito, Facebook removed a link posted by an Ecuadorian, in a personal account, to a video compiling images of police abuse allegedly committed during the protests. The video included images and audio clips of President Rafael Correa, taken from his weekly TV show on the public TV channel, congratulating the police for their actions.
In April, the Twitter account for Diana Amores, a translator who often shares humorous tweets with her more than 4,000 followers, was suspended following several instances in which Twitter removed images she had tweeted, including cartoons. For example, Amores had uploaded a picture of the Simpsons lying on the floor while a TV in the background displayed the logo of Correa’s weekly broadcast on the screen. Her accompanying tweet jokingly alluded to the toxic effect of the broadcast.
In October 2013, Pocho Álvarez, a filmmaker, discovered that his video, “Assault on Íntag” – a nine minute documentary on the harassment suffered by an indigenous community that was resisting mining in the region – had been removed from his YouTube account. The video included less than 20 seconds of images and the voice of Correa, repeating the phrase, “Let us see who is causing these problems,” suggesting that local communities were responsible for blocking development.
Beyond these and other cases is a firm in Spain that asked Facebook, Twitter and YouTube to remove the videos or images, claiming that they violated U.S. copyright law. Even though authorities from the Ecuadorian government have distanced themselves from the cases, the takedown requests indicate that the Spanish firm represented Ecuadorian state actors, including the public TV station, the governing political party, and one ministry.
How can something like this happen? In 1998, the U.S. Congress passed the Digital Millennium Copyright Act (DMCA) to combat online infringement. The law provides rights holders with an expedited “notice and takedown” system that enables them to request that online service providers, such as search engines or social media websites, remove content or links on the grounds of copyright infringement; without a court order or judicial oversight. As long as Internet companies comply with these requests, they can avoid liability for content posted by their users.
In practice, faced with claims of this type, companies immediately remove the contested content. But users may appeal the censorship, and often do, citing the principle of “fair use,” an exception in US law that permits reproducing copyrighted material for certain purposes, such as critical commentary, parody, teaching, and research. When Ecuadorians have appealed these removals, the content has generally been restored, but the process can be too burdensome for those citizens who just want their voices to be heard.
Under the DMCA, the restoration process takes up to two weeks, a delay that can be decisive for advocates or journalists reporting on fast-moving events or elections. Thus, abusive takedowns for alleged copyright violations can become a powerful tool for silencing criticism and commentary online.
Given Ecuador’s deplorable free speech record, this abuse is not out of the ordinary. In fact, President Correa praised the role of the National Police after it used excessive force and arbitrarily detained anti-government protesters, adopted one of the most restrictive media laws in the region, used criminal defamation laws and pursued multi-million dollar damages against critics, and headed an international campaign to undermine the OAS special rapporteur for freedom of expression, who had strongly questioned his administration.
And now, the government has found another tool to silence freedom of expression in Ecuador. At a time when Ecuadorian newspapers, and TV and radio stations are finding it much harder to freely publish critical information, citizens are turning to the Internet, the last space available to them to obtain, disseminate, and share information and opinions. It seems that if it were up to the Ecuadorian authorities, they should not even have that.
José Miguel Vivanco is Americas executive director at Human Rights Watch.
Eduardo Bertoni is a professor at the Faculty of Law of the University of Palermo and the former Special Rapporteur for Freedom of Expression of the OAS.