The murder of a child in Mocejón (Toledo) has reopened the debate on the tools of the Rule of Law to protect vulnerable populations from coordinated attacks on social networks. The homicide has been used as a launching pad for a hate campaign that has pointed to African people as the perpetrators of the events without evidence, causing an avalanche of xenophobic messages on the main platforms. An avalanche of mud and digital toxicity that has swept away the dust that parties such as PP and Vox have been sowing for months, linking crime with immigration based on hoaxes and biased data. All of this in the style of the new far right that Alvise Pérez embodies in Spain.
Many participants in the hate campaign against immigrants tried to delete evidence of their attacks late on Tuesday, deleting comments and deactivating their accounts after learning of the arrest of a Spanish citizen as a suspected murderer. They also intend to make it more difficult for justice to proceed, since the Public Prosecutor’s Office has announced that it will investigate the events as alleged hate crimes. This is another front in the battle against hatred that Europe is waging on the back of disinformation and algorithms, and which in countries such as the United Kingdom has even caused street riots.
The battle between haters and the courts is sometimes unequal, due to the protection offered by the platforms and the possibility of closing an anonymous profile to open another minutes later and continue with their toxic work. This Wednesday, the coordinating prosecutor against Hate Crimes and Discrimination, Miguel Ángel Aguilar, acknowledged in an interview on Cadena Ser that his team could benefit from “technical improvements” in the regulation both in the investigation of these campaigns and to protect the victims.
Among them, he mentioned the possibility that the courts could remove the anonymity that many profiles that spread hate use, as well as the possibility of imposing digital restraining orders against those convicted, thus preventing them from reoffending with little consequence.
These are tools that have already been on the table. However, as with other digital regulations, putting them into practice is not as easy a task as it might seem. It involves going through a labyrinth that touches on fundamental rights such as freedom of expression, as well as obtaining the collaboration of the multinationals that design these algorithms, but without giving them even more power in the control of online public discourse.
This is the case with online anonymity. The rulings of courts investigating crimes committed on large platforms or the resolutions of the Spanish Data Protection Agency (AEPD) are full of examples where requests from Spanish authorities take months to be answered by social networks, or are not even answered. “Many times we find ourselves with the difficulty that the investigation cannot prosper because we do not know who the author is,” Aguilar lamented.
“It would be necessary to study and assess whether people who act on social networks are properly identified and, above all, when required by the judicial authority, their identity is provided,” he continued.
However, the platforms do not make it easy and refuse to allow authorities other than those of their countries of origin (the US in the case of Instagram, Facebook, Twitter or YouTube, or China in the case of TikTok) to access their systems. “Unless the person under investigation has been very skillful in hiding their connection data and identity, the platforms technically have that information. If they do not cooperate, it is due to a lack of will,” says Borja Adsuara, a lawyer specialising in digital rights.
Who manages the identity of users?
The use of a pseudonym is considered a tool for exercising freedom of expression, as it allows one to express an opinion without fear of personal reprisals. However, the vast majority of specialists agree on the need to establish mechanisms that allow the identity of Internet users to be known when a judge requests it. This is stipulated, for example, in the Spanish Charter of Digital Rights, an official but not politically binding document that serves as a roadmap for the Government’s policies on virtual matters.
The problem is that today, as the special prosecutor against hate crimes says, there are no mechanisms that allow forcing this identification if the networks do not cooperate. Some experts have proposed requiring platforms to ask users for identifying data, such as their ID, during the registration process. But the solution does not convince everyone, since it implies even greater extraction of personal information by companies whose business model is to exploit it for commercial purposes.
The solution coming from Brussels is the eIDAS 2 regulation, which updates the EU’s rules on electronic identification and trust services. Its main novelty is the introduction of a common digital wallet, a mobile application that standardises personal identification systems in the different member states. Its aim is to improve interoperability between the different electronic identification systems in each country, but also to establish a secure system so that citizens can identify themselves on the Internet without all their data being transferred to social networks or other private companies that provide digital services.
In this way, eIDAS aims to ensure that if a Spanish citizen rents a car in Estonia, he or she can share with the rental agency only the information that he or she has a valid Spanish driving licence. He or she would not have to send copies of his or her identity and driving licence to a foreign company of which he or she has little reference, losing control over his or her personal data and exposing it to leaks or hacks.
But, once again, putting these ideas into practice is not easy. The first Spanish initiative to use the tools put on the table by eIDAS 2 was the app to prevent the consumption of pornography by minors. The Government’s objective is for citizens to identify themselves before entering adult websites (sharing only the attribute of whether they are of legal age or not) and thus prevent children from consuming this content. Despite being based on technology endorsed by the EU, the proposal generated enormous controversy and multiple accusations against the Executive for trying to create “lists” of porn consumers.
eIDAS 2 plans to ensure that not only national governments will be the ones to manage these digital wallets, but that private companies and organisations that meet the security requirements can also join. However, this is still a long way off. Brussels plans to start promoting these tools on a large scale from 2027 and to achieve 80% implementation by 2030.
“You have the right to use a pseudonym in front of others, but somewhere there has to be a table of equivalences that indicates which identity that pseudonym corresponds to,” says Adsuara. “There are several possibilities here: the table of equivalences may be held by the social network, or, as eIDAS 2 says, a trusted third party may hold it and you do not have to tell who you are to all the Internet sites you register on,” he adds.
It is forbidden to approach social networks
Another of the specific measures that Aguilar requested is the possibility that “courts can agree to prohibit access to digital environments” in cases of hate crimes. A kind of “restraining order” like those that already exist for those convicted of abuse or gender violence, who are prohibited from virtually contacting their accusers, but extended to all platforms and any digital interaction.
Similar orders to ‘stay away’ from social media have been issued by the courts for those convicted of gender-based violence. But this specific type of ban that is now being proposed for those who use these digital instruments to spread hate has a precedent. In 2022, the Supreme Court upheld a ruling by a Barcelona Criminal Court that in 2019 had convicted a YouTuber for giving Oreo cookies filled with toothpaste to a homeless person, recording it on video and uploading it to his channel. In addition to a fine of 20,000 euros, the sentence included a ban from entering YouTube for five years for the young man, who at the time had 1.2 million followers.
The ban was not articulated through hate crimes, but rather against moral integrity. The Penal Code states that “the deprivation of the right to reside in certain places or to go to them prevents the convicted person from residing or going to the place where he committed the crime.” Aguilar now suggests that hate crimes include this prohibition, to prevent “those people who have used the Internet or social networks to commit a crime from accessing the medium through which they committed it.”
The prosecutor clarified that this would only be the case in “the most serious cases and taking into account the circumstances of the specific case.” But he used the sentence against the YouTuber as an example to explain why it would be “interesting” to have this type of mechanism for hate crimes related to xenophobia or sexism. Furthermore, he does not limit it to the digital field, but also cites its usefulness in preventing convicted racists from entering sports venues as spectators.
The reform that would make virtual restraining orders possible for those guilty of hate crimes is included in the draft organic law for the protection of minors in the digital environment that the Council of Ministers approved in June. The text frames it as a “penalty of prohibition of access or communication through social networks, forums, communication platforms or any other place in the virtual space, when the crime is committed within them. In this way, the content of the penalty is linked to the nature of the crime, and greater protection of the victims is established, avoiding the repetition of punishable conduct.” The law still needs to be ratified by Congress.
Source: www.eldiario.es
