with Decree-Law 35 taking effect
By Eloy Viera Cañive (El Toque)
HAVANA TIMES – There are plenty of signs in Cuba right now that citizens can be sent to prison if they publicly express their dissent against the Government or criticize its policies. However, from a legal standpoint, none of these prison sentences were justified in the new legislation published in the Cuban Republic’s Official Gazette No. 92 on August 17, 2021.
The series of regulations include Decree-Law 35 and Resolution 105/2021 from the minister of Communications which set out violations and administrative sanctions. Violations are actions banned by the State that don’t classify as crimes; sanctions incurred do not exceed a fine or asset forfeiture.
A Cuban court should not be able to judge and sentence anyone to prison by falling upon what is outlined in Decree-Law 35 and its complementary standards. That said, it doesn’t mean that these regulations fail to legitimize some dangerous Government conduct and actions that they adopted outside their own laws, which could be understood as a sign of its willingness to repress in any space – especially in the virtual space where it has seen its control fall apart – and to crush any critical opinions from citizens.
Before Decree-Law 35 was promulgated, the Cuban government didn’t hesitate when charging Carolina Barrero and Tania Bruguera with incitement. The arguments used to sustain the opening of a criminal investigation and the imposition of house arrest as a preventive measure, were nothing but the posts they had each posted on their social media accounts.
The Cuban government has never needed a law to send somebody to prison for their posts on social media. The catalog of crimes that fall under the Penal Code has been enough, up until now. If you have any doubts, we can look at the case of Yoandi Montiel Hernandez – known as El Gato de Cuba – who was arrested before the series of regulations we’re analyzing here were published.
Resolution 105/2021 doesn’t set out new crimes, but it is an unprecedented concept in Cuban legislation, so the legal consequences still remain unclear: for cybersecurity incidents. In spite of the inclusion of this new category, it cannot be stated that Cubans can be charged for inexistent crimes such as cyberterrorism, the propagation of fake news or cyberbullying, after August 17th 2021. In order to consider these actions criminal, the Penal Code would need to be amended, which neither Decree-Law 35 or its complementary standards do.
Nevertheless, the fact that Resolution 105/2021 does not outline new crimes does not mean to say that it can’t be used as an instrument to assess the Government’s willingness to use all of the resources at its disposal – even criminal ones – to repress and control popular expressions of dissent in the virtual space.
Two fundamental issues are cleared up by Resolution 105/2021
The first is that content shared by Cubans on social media and the Internet are monitored by the authorities. According to what is stipulated in the series of regulations published in the Cuban Republic’s Official Gazette, these authorities are represented by the Office of Information Network Security and the Ministry of Communication’s inspection bodies. However, it is planned that a specialist cybersecurity body will exist in the future, where the ministries of Communications, Armed Forces and Interior will cooperate.
The second thing the resolution clarifies is that this monitoring of social media and the Internet can result in consequences, and whether violations of this regulation are sanctions with a fine or jail within the criminal framework will depend upon how dangerous they are considered and at the authorities’ discretion.
THE CONCEPT OF CYBERSECURITY
Recommendation UIT-T X.1205 from the International Telecommunication Union (ITU), which Cuba is a member of, has the following definition for cybersecurity: “the collection of tools, policies, security concepts, security safeguards, guidelines, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect the cyber environment and organization and user’s assets. Organization and user’s assets include connected computing devices, personnel, infrastructure, applications, services, telecommunications systems, and the totality of transmitted and/or stored information in the cyber environment. Cybersecurity strives to ensure the attainment and maintenance of the security properties of the organization and user’s assets against relevant security risks in the cyber environment.”
According to the International Telecommunication Union, cybersecurity can be understood as the practice of protecting systems, networks and programs from digital attacks. However, Resolution 105/2021 shows that the Cuban government has a much broader understanding of this concept.
Pablo Dominguez Vazquez, Cybersecurity director at the Ministry of Telecommunications, announced that after Resolution 105/2021, “the country would have a legal regulation that would join cybersecurity incidents and classifications that exceed the limits of technology.” The official’s statement proves that the Cuban government understands cybersecurity as a phenomenon that goes beyond the tech world. Dominguez Vazquez’ statement and the content of Resolution 105/2021 prove that the Cuban leadership are looking to both weaken IT and telecommunication technologies, as well as their own security and political stability by controlling civilians’ speech in cyberspace.
The government has tried to justify these statements – which are nothing more than an extension of censorship – by claiming that other countries in the world have similar legislation. On the TV show Mesa Redonda, broadcast on August 17th 2021, Ernesto Rodriguez Hernandez, vice-minister of Telecommunications, argued that countries like France and Germany have legislation that condemn expressions of hate, discrimination and incitement to violence on social media.
These regulations (which we will dedicate another article to in elTOQUE Legal) are not targeted at prohibiting or monitoring speech and content, like Cuba’s do, which “attack the State’s constitutional, social and economic precepts or incite uprisings or other acts that disturb public order.” Much less do they want the high transmission of reproduction of content that “seeks to disturb public disorder or promote social indiscipline” to be considered dangerous.
Resolution 105/2021 is different to European legislation in not only its scope, but also because in the Cuban case (unlike Europe where there are plural societies) some of the content protected by Law such as “constitutional, social and economic principles of the Cuban State”, justify the existence of a single ideology, of a one-party political system and a centralized economy as the only way forward for the country. Any idea against these principles (which should be considered an exercise of freedom of speech and thought) could then be monitored, investigated, and criminalized if needed – according to Resolution 105/2021 – as well as removed from the virtual space if the Cuban government wants it to be.