Freedom of speech through the Internet in Mexico

Sergio Rangel
Intellectual Property Expert at Latin America IPR SME Helpdesk

 

Background

On June 2017, the Mexican Supreme Court of Justice (@SCJN) analyzed an Amparo suit filed by Alestra, S. de R.L. de C.V., a well known Mexican internet service provider (ISP), filed against the §199 Bis. Industrial Property Law preliminary injunction granted by the Mexican Institute of Industrial Property, also known as IMPI. The preliminary injunction rationale was the alleged infringements by storing and disseminating copyrighted music works, via a webpage.

In order to stop the allegedly infringing activities of said webpage, IMPI ordered Alestra and other ISPs to block the IP address in Mexican territory.

Alestra challenged IMPI’s preliminary injunction, in lower federal courts via an Amparo suit (Constitutional appeal) and lastly the case reached the highest Court in the country.

Supreme Court Justice Alberto Pérez-Dayán, member of its Second Chamber, drafted the opinion which resulted in two precedents. [1] [2] Per the opinion, blocking a webpage may violate the freedom of speech (recognized human right in the Mexican Constitution as well as in international treaties). It is mandatory for any Mexican government agency to take into account the freedom of speech as part of the limits to impose preliminary measures. Likewise, the injunctions shall be deemed in the law, grounded in a legitimate purpose, as well as necessary and proportional.

Because freedom of speech shall be a major concern to the Mexican State, any limitation cannot be unreasonably wide or generic. So a general block may be suitable only when exceptional circumstances raise, including inducement to terrorism, hate, racism, discrimination, genocide, violence, child pornography, etc.

Likewise, the threat of potential distribution of illegal copyrighted material is not per se a valid argument to entirely block a webpage since this blocking may include legal contents and protected speech, resulting in censorship.

Concerned of the application of the aforementioned precedents, the Mexican Association for the Protection of Intellectual Property (@AMPPI_AC) organized on September 1st, 2017, the conference: “#LibertadDeExpresión. Supreme Court criterion related to blocking of webpages and its interaction with the Intellectual Property”.

Justice Alberto Pérez-Dayán was the speaker on behalf of the Mexican Supreme Court of Justice.

In my opinión:

In the last months, Intellectual Property Rights owners and colleagues have been shocked due to the opinion of the Mexican Supreme Court of Justice, regarding the blocking of webpages. Apparently, the opinion blocks most of the online enforcement administrative actions. I disagree.

Seems clear that the Court is not restricting the authority of IMPI to grant preliminary injunctions against webpages, but establish rules.

Because the generic block is an extraordinary measure, it demands also extraordinary work to justify it.

Blocking webpages is constitutional when the authority properly rationale that the measure is adequate to prevent violations to intellectual property rights.

The blocking of a webpage must be reasonable and proportional. As Justice Pérez-Dayán said; a block may be applicable when the transit through the webpage is impossible without run into illegal contents.

Therefore, the matter is not to face a technical matter v. Human Rights, or to confront Freedom of Speech v. Copyrights. The matter is to prevent a government agency to misuse authority that may result in a disproportional   enforcement action or censorship… is to work hand-in-hand with IMPI to obtain rational injunctions that may result in a partial or even in total block of alleged-illegal contents.

Total block of webpages may be constitutional, but depends in how the block is carried out.

[1] BLOQUEO DE UNA PÁGINA ELECTRÓNICA (INTERNET). DICHA MEDIDA ÚNICAMENTE ESTÁ AUTORIZADA EN CASOS EXCEPCIONALES.

[2] LIBERTAD DE EXPRESIÓN EJERCIDA A TRAVÉS DE LA RED ELECTRÓNICA (INTERNET). LA PROTECCIÓN DE LOS DERECHOS DE AUTOR NO JUSTIFICA, EN SÍ Y POR SÍ MISMA, EL BLOQUEO DE UNA PÁGINA WEB.

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