On 15 June 2015, Mexican congresswoman Selma Guadalupe Gómez Cabrera, of the Green Party, submitted the legislative initiative on Civil Liability for the Protection of Privacy, Honour and Self-Image to Sonora State Congress. The draft law would consider visual representations of people (such as memes) defamatory. The initiative contains various provisions which disproportionately restrict freedom of expression and information.
The Law purportedly seeks to “protect the moral heritage” of the Mexican state of Sonora and, among other things, regulate content on social networks. The fines could be as high as USD 1,600.
Contrary to what has been claimed in the media, this initiative would not only ban the circulation of “memes”, but seeks to impose broader restrictions on various aspects of the exercise of freedom of expression.
Article 6 of the Mexican Constitution, Article 13 of the American Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights all establish legitimate limits for the exercise of freedom of expression, one of which is respect for privacy. However, restrictions must be interpreted according to strict criteria, i.e. the so-called tripartite test of international law, whereby any restriction must (i) be clearly and precisely established in a law, (ii) pursue a higher, legitimate aim, and (iii) be necessary and proportionate.
These types of initiatives, which establish limitations to rights, must fully comply with those standards as, otherwise, they create illegitimate and disproportionate restrictions, which would be unconstitutional and in breach of the conventions, in violation of human rights.
We therefore highlight the following considerations regarding the right to privacy, honour and image:
- The right to freedom of expression prevails over the right to privacy where information of public interest is concerned. This is the case for political discourse – which is especially protected within the sphere of freedom of expression, as it is of relevance for society. The same applies to the actions of civil servants in the course of their work, or to persons who are in the public eye, or have voluntarily chosen to project their image publicly.
- The right to freedom of expression protects not only kind or pleasant expression, which people generally welcome, but also expression with a degree of exaggeration or provocation, which might offend, shock, disturb, upset, worry or bother, as that is precisely where freedom of expression is most valuable.
- Were this legislative initiative approved, it could lead to penalization of the use of memes or satirical images, inspired by certain facts or events, which commonly circulate on social networks as a means of expressing a critical or caustic point of view. Such use is fully protected by the right to freedom of expression.
ARTICLE 19 calls on Sonora State Congress to reject the initiative known as the “Anti-Meme Law” and demonstrate its respect for freedom expression and information, which are essential in a democracy. We also demand that Sonora State Congress repeal the crime of defamation, provided for in Article 284 of the local Criminal Code, as such rules inhibit the exercise of rights by criminalizing freedom of expression and information.