https://doi.org/10.37955/cs.v7i3.320

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eISSN: 2600-5743

The Positivization of the arbitrary

use of freedom of expression in

social networks in Ecuador; a

constitutional perspective

La Positivización del uso arbitrario de libertad de

expresión en redes sociales en el Ecuador; una

perspectiva constitucional

Carlos Luis Barrios Cornejo

MSc. Universidad Politecnica Salesiana del Ecuador

https://orcid.org/0009-0005-8403-1166

carlos.barrioscornejo6043@upse.edu.ec

Tanya Roxana Torres Castillo

MSc. Universidad Politecnica Salesiana del Ecuador

https://orcid.org/0000-0002-1351-6159

Tanyatorres@upse.edu.ec

ABSTRACT

Social media allow the materialization of the exercise of freedom of

expression, for this reason, their operating conditions must be

adequate to the requirements of such freedom. This article analyzes

the positivization of the arbitrary use of freedom of expression in social

networks in Ecuador; from a constitutional perspective. It is a study

with a qualitative approach, non-experimental design, transectional,

with an analytical level, whose research and data collection techniques

are purely documentary, based on information taken from books and

academic journals, as well as from the Constitution of the Republic of

Ecuador, the Universal Declaration of Human Rights, and the Inter-

American Court of Human Rights. The results show that in Ecuador,

the right to freedom of expression is contained in the constitution as

one of the fundamental civil rights, however, there are no specific legal

norms that regulate the use of the networks; for which it is necessary

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to adapt to models that apply state or supra-state norms that positivize

inappropriate behaviors, as well as in paradigms of self-regulation

supported by private entities that grant a certain degree of regulatory

autonomy in the face of the arbitrary use of social networks.

RESUMEN

Los medios de comunicación social permiten la materialización del

ejercicio de la libertad de expresión, por tal razón, sus condiciones de

funcionamiento deben estar adecuados a los requerimientos de dicha

libertad. El presente artículo analiza la positivización del uso arbitrario

de libertad de expresión en redes sociales en el Ecuador; desde una

perspectiva constitucional. Se trata de un estudio con enfoque

cualitativo, de diseño no experimental, transeccional, con nivel

analítico, cuyas técnicas de investigación y de recolección de datos son

netamente documentales, basadas en información tomada de libros y

revistas académicas, así como de la Constitución de la República de

Ecuador, la Declaración Universal de Derechos Humanos, y de la Corte

Interamericana de Derechos Humanos. Los resultados muestran que

en Ecuador, el derecho a la libertad de expresión está contenido en la

constitución como uno de los derechos civiles fundamentales, no

obstante, no existen normas jurídicas específicas que regulen el uso de

las redes; para lo cual se hace necesario adecuarse a modelos que

aplican normas estatales o supraestatales que positivizan conductas

inapropiadas, así como, en paradigmas de autorregulación apoyados

por entes privados que otorgan cierto grado de autonomía regulatoria

ante el uso arbitrario de las redes sociales.

Keywords / Palabras clave

Fundamental rights, Positivization, Freedom of expression, Social

networks

Derechos fundamentales, Positivización, Libertad de expresión, Redes

sociales

Introduction

From a universal perspective, human rights are "a set of powers and

institutions that, at each historical moment, concretize the demands of

human dignity, freedom and equality, which must be positively

recognized by legal systems at the national and international level"

(Pérez, 2003, p. 48). This definition aims to combine the two major

dimensions that make up the general notion of human rights, i.e., the

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naturalistic requirement regarding their foundation and the

techniques of positivization and protection that give the measure of

their exercise.

Speaking about human rights, in Mexico, for example, for the State to

recognize human rights in a literal way, it was necessary for them to be

embodied in a normative provision, being the ideal one, the Magna

Carta; therefore, it is required that human rights are legislated to be

recognized, as established in the Political Constitution of the United

Mexican States (2013), "In the United Mexican States all persons shall

enjoy the human rights recognized in this Constitution and in the

International Treaties to which the Mexican State is a party" (Art. 1).

With this understanding, it is understood that one cannot enjoy more

human rights than those exclusively legislated or those contained in

international treaties, this being positivization.

The state constitution also states that "all authorities, within the scope

of their competencies, have the obligation to promote, respect, protect

and guarantee human rights in accordance with the principles of

universality, interdependence, indivisibility and progressiveness."

(Constitución Política de los Estados Unidos Mexicanos, 2013)

Consequently, the State shall prevent, investigate, punish and redress

human rights violations, in the terms established by law, that is to say

only what the law allows it, but that the statement that it is within the

scope of its competences.

Thus, by contemplating human rights within the legal norms, there is

a great advantage, and that is that the authority initially has the power

to recognize, secondly, to respect, thirdly, to guarantee, and finally to

restore human rights, as far as possible, in the event that there is a

violation of the same.

On the other hand, the legal norm has four spheres of validity; the

spatial, which indicates the place where the norm will be applied; the

temporal, which indicates the time of validity of the norm; the

personal, which refers to the subjects to whom the legal norm is

addressed; and finally the material, which indicates the purpose or

motive of the norm. These spheres apply to the human rights

embodied in the legal norm; being the spatial the national territory;

the temporal, the validity or indefinite time of the legal norms; the

personal, the human being who possesses the category of person; and

the material, the recognition, respect, protection and restitution of the

dignity of the person (Mendoza, 2014).

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Over the course of time, the idea has been held that any description of

the historical course of freedom of expression cannot disregard the

evolution of the technical means of social communication. To such an

extent that the history of human beings, linked to freedom of

expression, is equivalent to the history of the technical means they use

for the purpose of social communication.

After the Second World War, the constitutionalist movement

continued its expansion which, in many cases, was frustrated by the

intolerance and vigor of the totalitarian doctrines imposed on the

nations of Central and Eastern Europe, several in Africa and Asia and

some in America. But this confrontation between constitutionalism

and totalitarian doctrines is simply the demonstration of a constant in

the history of human life, which is the struggle for freedom. (Merlo,

2005)

Radio broadcasting, satellite television transmissions and computer

networks were vehicles that broke down the authoritarian barriers that

kept millions of people in ignorance. The diffusion of human thought

through modern technical means of social communication made

impossible the subsistence of a regime based on terror and the

systematic denial of the most elementary freedoms that permeate the

nature of the human being. (Merlo, 2005)

In a particular context, within the rights of freedom enshrined in the

Constitution of the Republic of Ecuador, there is the human right to

give opinions and express oneself freely, in its different

manifestations. Said rights, being guaranteed and protected by the

constitutional norm of the State, become imprescriptible rights where

the course of time does not extinguish their preservation; and

inalienable or susceptible to transaction.

Therefore, human rights are inherent to the individual and are

intrinsic; which allows inferring that they are not the creation of the

law or of the human being himself. However, for the effective

enjoyment of these rights, it is necessary that they are positivized in

order to avoid their violation, or, in the event that they are

transgressed, to apply their respective sanction and reparation. This is

the reason why human rights are enshrined in international

instruments that guarantee their protection.

Based on the above, this article analyzes the positivization of the

arbitrary use of freedom of expression in social networks in Ecuador

from a constitutional perspective; in which theoretical aspects are

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described on freedom of expression delimited in Ecuador and

constitutionally addressed; on the positivization of the arbitrary use of

the right to freedom of expression and human rights in Ecuador; as

well as on the arbitrary use of freedom of expression in social

networks.

Materials and Methods

The present research has a qualitative approach, with a non-

experimental design, and is descriptive; its research method is

inductive reasoning, in which the truth of the premises supports the

conclusion, however, they do not guarantee its truth. The study has an

exegetical posture, using legal arguments and considering the real

meaning of the words used to draft the constitution, laws or norms, to

then interpret them, without altering what is already expressed; in

addition, the technique of grammatical, teleological, analogical or

extensive interpretation has also been used, at the time of explaining

the legal norm.

In this article, a bibliographic research was conducted by compiling

information from books, articles and legal documents on human rights

and the positivization of the arbitrary use of freedom of expression. In

order to deepen and analyze the research problem, we also resorted to

the use of constitutional, legal and jurisprudential texts; specifically

using information provided by the Constitution of the Republic of

Ecuador (2008), the Universal Declaration of Human Rights, and

information from the Inter-American Court of Human Rights.

Theoretical aspects of freedom of expression

Freedom represents the attribute of the person, and law is the

procedure established in the positive legal norm to make such freedom

effective within the social sphere. Based on this, it can be said that

freedom is a right, insofar as it is legitimately regulated and legally

framed within a norm. It is worth noting that there are many types of

freedom, among which the right of expression is worth highlighting.

Freedom of expression is considered a fundamental human right. This

conception values freedom of expression as a fundamental right of the

person, closely linked to his or her dignity. Thus conceived, freedom of

expression is valuable in itself, as an inseparable component of the

spirituality of the person, and for "reasons that have nothing to do with

the collective search for truth, with the process of self-government, or

with any conceptualization of the common good. (Pizarro, 1999)

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Freedom of expression is also considered as an instrument that allows

to achieve beneficial effects for the community, for this reason, it

receives special protection within the legal esteem. It makes available

a superlative value, not because the person has an intrinsic right to say

whatever he wants, but because by allowing such expression beneficial

effects are achieved for the rest of the community. (Pizarro, 1999)

Third, freedom of expression is considered an essential and

constitutive component of political society. According to this view,

freedom of expression is valuable and deserving of special protection,

not because the consequences it has at the individual or community

level are positive, as was advocated by previous currents, but because

it is an essential and constitutive characteristic of any self-governing

society. (Pizarro, 1999)

In short, there are different ways of perceiving freedom of expression.

As can be seen, it is considered a fundamental right of human beings

linked to their dignity; an instrument that makes it possible to bring

benefits to the community; and an essential and constitutive

component of the political society that governs itself. All these

perceptions of freedom of expression touch on the social and

community aspects of freedom, framing it within a democratic

structure.

From the perspective of García and Gonza (2007), within a democratic

society, the greatest possibilities are guaranteed for the circulation of

news, ideas and opinions, as well as the broadest access to information

by society as a whole. Therefore, freedom of expression is clearly

inserted in the primary and radical public order of democracy.

The Constitution of the Republic of Ecuador (2008) establishes as a

civil right, the right to freedom of opinion and expression of thought

through any means of communication, indicating, in addition, that the

person who is affected by statements without evidence, inaccurate or

that aggravate his honor, shall have the right to a rectification of what

was said as soon as possible. Likewise, it contemplates the right to

communication and to create social communication media and to

access radio and television frequencies.

In the same vein, the right to freedom of expression is also protected

by the Universal Declaration of Human Rights (1948), which states

that "Everyone has the right to freedom of opinion and expression; this

right includes freedom to hold opinions without interference and to

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seek, receive and impart information and ideas through any media and

regardless of frontiers" (Art. 19).

In addition, when referring to Art. 17 of the Organic Law of

Communication, (LOC, 2013) it is understood that everyone has the

right to freedom of thought and expression; a human right that

includes the freedom to seek, receive and disseminate information,

orally, in writing, in print or in art, or by any other means, without

being disturbed because of their opinions.

It can be summarized, then, that both the Constitution of the Republic,

the Organic Law of Communication and the Universal Declaration of

Human Rights speak of freedom of opinion and expression as a right

of human beings to give their opinion, to express themselves and not

to be disturbed because of their opinions. In addition, under a

regulatory framework, they place special emphasis on the various

forms that exist to disseminate information, to communicate and give

opinions, and how these should be respected and protected.

Freedom of expression from a constitutional perspective

The fact that a person has a right means that there is something that

the individual can enjoy and that the power of the State recognizes it

and grants its protection. (Von Ihering, 1978). Such a right, once

contemplated in the norms of the Constitution, becomes a right

situated within the public system of legal relations. It should be noted

that the strength of human rights as a subjective public right comes

from the recognition of the state normative system, i.e., the

constitutional one. (Sar, 2012)

Human rights have a place in the Constitutions of the States, so that

they have gone from being simple programmatic statements to

pronouncements that are incorporated into the fundamental legal

norm of each nation. In addition to this, the emphatic tone that has

been used when issuing classic declarations also disappears, which has

been replaced by a shorter and more technical legal language. (Sar,

2012)

It is a matter of recognizing people's possession of rights that are

determined and protected by the guarantees established by the

Constitution. The fact that human rights are contained in a declaration

that forms part of the constitution gives them the highest hierarchy in

the normative order of a nation, since it is this supreme constitution

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that heads the legal system, leaving the rest of the infra-constitutional

regulations subordinate to it. (Sar, 2012)

State constitutions expressly recognize the rights of a person and of

society, identified at the constitutional level as "fundamental rights".

However, mere recognition is not sufficient for such rights to be

respected, primarily by the powers of the State; therefore, it is essential

that guarantees be established within the constitutional text to ensure

compliance with the rights. This means that, if a right is violated, there

are means or guarantees available to the aggrieved party that allow

him to reestablish the exercise of his right. Therefore, current

constitutionalism is characterized by protecting rights from any

violation or threat of violation, regardless of whether it comes from

public or private powers. (Chiriboga & Salgado, 1995).

Based on the foregoing, legal freedom is that which determines the

normative attributes of a person and confers on him the instruments,

which are the subjective rights, for the exercise of that freedom in his

relations with other persons and with the global political organization.

Thus, legal freedom is an attribute that distinguishes the individual

and is expressed in his power to demand a certain behavior from the

State and other individuals through the exercise of subjective rights.

The sphere of individual autonomy, freedom and the power to make it

effective is the right to freedom. (Badeni, 2002)

In any politically organized society, freedom is limited by the order it

establishes. However, in a constitutional democratic system,

according to (Badeni, 2002)that these limitations to freedom must be

reasonable, responding to the need to safeguard individual interests

and the interests of the community. That is why limitations to freedom

cannot lead to its total disregard, and its regulations must be subject

to a restrictive interpretation.

Absolute freedoms do not exist in the constitutional order. Not even

the freedom to live, institutionalized in the right to life, is absolute. All

individual freedoms, even if they involve the recognition of natural

human liberties, as well as all social freedoms established by law, are

subject to regulations which, as such, are reasonable restrictions

imposed to harmonize individual interests and satisfy the common

good that motivates the creation of the global political organization.

(Badeni, 2002)

In view of the above, it can be said that there are no fundamental rights

without a Constitution; and it is precisely in the Declaration of Human

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Rights where we begin to speak of fundamental rights, when in Art. 16

it is established that: "Any society in which the guarantee of rights is

not established, nor the separation of powers determined, lacks a

Constitution".

Therefore, as the Constitution is the law of the State with the highest

rank, the rights that are positivized in the Constitution as supreme law,

represent rights with the highest hierarchy, so they require greater

guarantee and protection. In Ecuador, the constitution mentions

several types of fundamental rights, among which are civil rights;

listed as a constitutional right the freedom of opinion and expression

of thought. This type of rights are part of the system positivized by the

Constitution, so they constitute the material basis of the legal system

of Ecuador.

Results

When speaking of positivization, reference is made to positivize, which

means 'to give positive character to something'. (Real Academia

Española, 2022) So it is not the same to speak of positivizing as

positivizing, since the former means 'to obtain the positive of a

photographic image', a term that is not appropriate to use instead of

positivizing, which, as already mentioned, means 'to give a positive

character'. In the field of human rights, one cannot enjoy more human

rights than those exclusively legislated or those contained in

international treaties, this is what is known as positivization.

Human rights are rights inherent to the individual, so they are not

created either by a person or by a law. However, in order to effectively

enjoy such rights, they must be positivized, avoiding their violation,

and in case of being transgressed, they can be sanctioned and repaired.

For this reason, human rights are contemplated in international

instruments that seek to protect them internationally.

Fundamental rights are "all those subjective rights that correspond

universally to all human beings as endowed with the status of persons,

citizens or persons with capacity to act"; the way to positivize these

rights so that they are subjective right "any positive expectation

ascribed to a subject by a legal norm" is by using treaties and

conventions that with the characteristic of international aim to achieve

the feature of universality. (Mendoza, 2014)

Fundamental rights represent essential and permanent qualities or

values of the human being, object of legal protection; that is, they are

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those rights that are duly recognized and guaranteed by the Political

Constitution of the State, i.e., the highest level of all normative

hierarchy of a Nation. According to Noguera (2009), fundamental

rights are supreme values of the human being recognized and

guaranteed in the constitution, which enshrines them as such; this

means that they are rights that respond to the legal system of each

country.

Human rights, on the other hand, are positivized in international

conventions and declarations, therefore, their definition has a broader

and more imprecise content than that of fundamental rights;

therefore, the expression "human rights" alludes to the demands

associated with values such as dignity, freedom and equality of the

human being, which have not achieved positive recognition.

(Chiriboga & Salgado, 1995).

In this sense, although fundamental rights are constitutional human

rights, not all human rights are fundamental. This is mentioned by

Aguilar (2010), when he says that, especially in Latin America, the

constitutional doctrine makes a distinction between human and

fundamental rights, arguing that only those rights that are recognized

as such by the Constitution should be considered fundamental rights.

The foregoing leads to infer that there is a distinction between the

rights of the human being; giving the qualification of fundamental to

those rights whose importance is to be emphasized in comparison with

others; that is to say, qualifying some rights as fundamental is due to

the character of relevance that is desired to be granted to the interests

they protect; constituting the basis of the rest of the rights of the legal

system.

The positivization of human rights, leads the rulers to recognize the

human rights of the governed, establishing clearly and precisely the

limits of the powers of the former, although this recognition, through

legal norms, contrasts with some features that distinguish the

aforementioned rights, which the governed have against the rulers, so

you can highlight the cons of this positivization, and put them on a

scale with the pros, and conclude whether it is the most convenient

(Mendoza, 2014).

It would also have to be questioned what would be done in the event

that any right not recognized by the legal system is violated, what

means of defense are available in such an event, what sanctions would

be applied, and what sanctions would surely be applied, and it would

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surely be necessary to resort to international bodies on the matter,

previously exhausting all the remedies of the national human rights

protection systems. It could be argued in favor of positivization that

human rights are an unfinished process in permanent transformation,

hence the characteristic that they are progressive. (Mendoza, 2014).

Proof of this is the constant emergence of new values and principles,

such as the Universal Declaration of Emerging Human Rights, a

declaration that aims to: "contribute to the design of a new horizon of

rights that will serve as a guide for the social and cultural movements

of collectivities and peoples and, at the same time, be inscribed in

contemporary societies, institutions, public policies and the agendas

of those in power, in order to promote and foster a new relationship

between global civil society and power" (United Nations, 2004).

(United Nations, 2004)

As well as, the recognition of those human rights that we have and that

have not been embodied in legal norms. It is up to everyone to ensure

that this positivization is constantly improved through the legislation

of new rights, respect for the dignity of the person by those who govern

and those who are governed, and the demand for the rights of the

human being.

In another order of ideas, human rights have a very particular

characteristic that distinguishes them, and it is the fact that they are

universal, this means, at a global level, that human rights have them

and are present in all people, regardless of their race, color, nationality,

religion, language, social stratum, ideology, among others. However,

this characteristic reflects the conflict that rights are held by all human

beings, while those recognized in the legal norms of a country only

have application within a specific national territory; in addition, some

of these rights generate confusion. These situations lead to the

identification of the risks of the positivization of human rights.

Positivization of human rights. Ecuadorian case

Since many years ago, Ecuador has signed and ratified several

international covenants, conventions and declarations on human

rights. According to Chiriboga & Salgado (1995), by accepting such

international instruments, Ecuador, through its governments as

intermediaries, has formally committed itself to respect human rights

and promote conditions for the enjoyment and exercise of human

rights, so that there are no obstacles to the guarantee of rights.

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It should be noted that these instruments, once formally ratified by the

States, are incorporated into national legislation, becoming legally

binding, in the same way as the domestic legislation of each State. As

a result, Ecuador is obliged to comply with international regulations,

and in the event that such regulations are violated or its duties are not

fulfilled, procedures are foreseen that may even entail sanctions,

within the limitations of International Public Law.

The Constitution of the Republic of Ecuador (2008) recognizes and

guarantees people the right to express their opinions and thoughts

freely and in all its manifestations. The term freely implies that under

no circumstances should the exercise of the fundamental right in

question be restricted or limited.

In relation to the above, it should be noted that, although it is not

possible to restrict the right to express oneself freely, if the dignity,

honor or other right of another person is violated, one must respond

for such violation of the right; this implies that only after exercising

the right to freedom of expression, the sanction is allowed.

(Bustamante, 2019)

At this point, it is important to talk about the normative hierarchy of

international instruments. In this regard, according to Chiriboga &

Salgado (1995), there are several positions. One of the most widely

accepted is the one that considers that the precepts contained in such

international instruments, which have already been ratified by the

State, have the same value as the Constitution; a situation that is

confirmed by observing that the international norms accepted by the

State cannot be modified or contradicted by legislation, unless the

international instrument is previously abandoned.

Another position on the normative hierarchy of international

instruments is that the international precepts ratified by the State are

norms of lower rank than the Constitution; but they have a hierarchical

level above domestic laws, thus explaining that national legislation

observes international norms and enforces them without

contradicting them (Chiriboga & Salgado, 1995). (Chiriboga & Salgado,

1995)..

In addition to the above, the Constitution of the Republic of Ecuador

(2008), states in Article 57, that the State shall guarantee the

application of collective human rights without any discrimination

whatsoever, under conditions of equality and equity between women

and men. According to the aforementioned Constitution, the rights

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and guarantees determined in the Constitution and in international

instruments shall be applicable by and before any judge, court or

authority; however, no authority has the power to demand conditions

or requirements that are not established in the Constitution or in the

laws, for the exercise of rights.

The fact that at the constitutional level it is established that any

authority has the obligation to apply rights and guarantees, gives way

to the recognition of rights that are not embodied in the Constitution

or in international instruments; however, there is a restriction on the

authority to promote, respect, protect and guarantee rights, since it

must do so within the scope of its competence, that is, not beyond what

the law allows; similarly, there are restrictions when it is indicated that

no authority has the power to demand conditions or requirements that

are not established in the Constitution or in the laws.

Freedom of expression in the digital era. An analysis of the legal

regulation of social networks.

Castells (2012) asserts that information and communication

technologies and the digital network are a possible condition for

individuals to exercise their freedom in the network society. The

author adds that the Internet is providing the organizational

communication platform to translate the culture of freedom and

autonomy. Therefore, Internet technology represents a culture of

freedom.

From the social point of view, and according to Acázar (2016), social

networks are positive control structures. For example, prisoners can

voluntarily access and integrate themselves into the various social

networks, freely pouring their data into Big Data repositories and

exhibiting themselves through images and interrelating through

conversations; achieving a kind of relative freedom, which leaves

somehow inoperative the central and disciplinary subjectivity that

guarded the prison architecture. In this way, an abandonment of the

negativity of isolation and isolation arises, promoting communication

between people, within the framework of human rights.

However, Alcázar (2016) explains that the positivity about the

phenomenon of the digital network of the globalized world does not

seem to do justice to the spaces, processes, agents and actions that

comprise it. In this regard, recent history suggests that the digital

network based on new information and communication technologies,

as well as their growing socialization, have given rise to areas, agents

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and actions that are quite difficult to characterize under concepts and

models that are exclusively positive.

So, although positivity is a phenomenon of high dominance, the nature

of information and communication technologies and the internet have

allowed new spaces and communicational resources for individuals

and groups of people in search of social transformations. Therefore,

positivity does not possess a fullness with knowledge of all possible

and real things that exist, since it continues to encounter resistances

and obstacles that are adequate to the constitutive properties of

technological and scientific means.

In addition to the above, the current use of information and

communication technologies and the Internet can be interpreted in

two different ways (Alcázar, 2016), on the one hand, as instruments of

social domination and effective control, and on the other, as

procedural devices that lead to emancipation, that is, to autonomy,

power, sovereignty, dignity, and, above all, freedom.

Social networks, although they represent a right of expression that

intensifies communication and interaction between people, have also

led governments to question the adequacy of the regulation applied to

the Internet, and very specifically to social networks, due to the

arbitrary nature of their use, the risks and threats to their users. Thus,

the norms and regulations are insufficient compared to the diversity of

activities that are carried out through them, making this a real legal

challenge for both national and international law.

In this sense, social networks have created a new interactive reality

with challenges for the law on the scope of sovereignty and state

jurisdiction, in such a way that, in the face of any conflict presented in

virtual social networks, the question may arise as to which law should

be applied or who knows about the case. The answer to these questions

is not clear, since, in the virtual environment, the State loses the scope

of its jurisdiction and, therefore, of its regulation. Added to this are the

conflicts arising in social networks that generate criminal, commercial

and civil disputes, among others. (Arévalo, Navarro, García, & Casas,

2011).. In this regard, it can be inferred that, in some States, there is

currently an isolated regulatory norm that is just beginning to manifest

itself.

It is worth mentioning that some Latin American countries have

created laws to try to regulate crimes and harmful actions arising from

the use of the Internet, such is the case, according to Arévalo et al

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(2011), of Argentina with a law for the protection of copyright through

the Internet, and others that regulate Internet providers; Brazil, with

the law that regulates Internet service providers and protects

copyrights; Colombia, with the law for the protection of information

and data; Mexico, with the federal law focused on the protection of

personal data and information security; and Venezuela, with the

enactment of the law on social responsibility in radio and television,

which arose in response to the boom in the use of social networks and

harmful information on the Internet.

On the other hand, the current use of social networks in the midst of a

globalized world crosses borders, which makes the regulation of their

contents and the control of their arbitrary use something difficult to

establish and execute, due to the jurisdictional pluralism in which they

are developed and the legislative competence they face, when dealing

with actions or conducts that have legal implications. Based on the

above, it is important to mention that, due to the arbitrary use of social

networks, there are models for their regulation that have been

proposed and implemented around the world.

In the case of the European Union, a conservative model is established,

under a paradigm based on positivization, i.e., in the proposal of

mandatory rules, which contemplates the legal consequences of

harmful conduct in the use of the Internet. This European model of

regulation of the Internet and virtual social networks corresponds to a

system of positive regulation of a community nature, in which

supranational institutions with legislative functions create written

rules on the subject. (Arévalo, Navarro, García, & Casas, 2011).

In the case of the United States, the model of legal treatment of the

Internet and social networks is based on self-regulation, defined as a

model based on values that allows the flexibility demanded by the

medium and complemented by local legislation, allowing social and

economic positions of power to operate directly without any type of

legal control. However, there is another position on self-regulation,

which is that of strict legal control, where there is no room for the

imposition of unilateral conditions by the firm providing the virtual

service. (Oliver, 2003)

According to Oliver (2003), this second form of self-regulation is a

suitable device for managing jurisdictional risks and preventing state

agencies in charge of enforcing legislation from becoming saturated.

Therefore, self-regulation is constituted within a flexible paradigm,

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which adapts perfectly to social and market realities, minimizing, in

addition, direct judicial intervention, thus facilitating the immediate

resolution of disputes, conflicts and arbitrariness generated by social

networks and the Internet.

On the other hand, the Latin American case presents a mixed

regulatory model that includes elements of the European and

American models, whose original source of law is derived from the law

emanating from the legislative body, and from private entities with

their own regulatory mechanisms, without geographical jurisdiction,

which are responsible for establishing measures, recommendations,

and solutions to conflicts that may arise in the network, without State

intervention. (Arévalo, Navarro, García, & Casas, 2011).

Applying a mixed model of regulation of social networks in Latin

America implies applying state or supra-state norms that positivize

inappropriate behaviors that are frequently manifested in the digital

network, as well as self-regulation supported by private entities that

grant a certain degree of regulatory autonomy and that provoke an

idea of legal insecurity.

In summary, as far as the model of Latin American countries is

concerned, the provisions of the law emanating from the state

legislative body and the aforementioned private entities that propose

their own regulatory mechanisms, come together in order to regulate

general aspects of Internet access and specific aspects of the use of

virtual social networks, as well as the protection of users against those

harmful and dangerous behaviors resulting from the inappropriate

and arbitrary use of social networks.

Regarding the regulation of social networks, it can be summarized that

the Latin American model does not have a specific regulation, so it is

impossible to resort to regulatory standards for the use of the Internet

and social networks. Therefore, the aforementioned legal model does

not aim to create specific rules for the use of social networks, but rather

to adhere to international agreements, in which human rights are

positivized. The Latin American model of regulation for social

networks has already been adopted by some Latin American countries,

and this is precisely what Ecuador should do in the face of the arbitrary

use of social networks.

Conclusions

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The right to freedom of expression is one of the fundamental rights,

recognized in the constitution, and which is also mentioned in

international instruments for the protection of human rights. This

right is inherent to the human being and is enshrined in the

Constitution of the Republic of Ecuador as one of the rights of freedom,

so they are of immediate and direct application, without undermining

its exercise, because the law can punish discrimination, violation or

infringement.

The rise of interactive communication based on the Internet and new

technologies has given rise to virtual social networks. This virtual

interrelation has crossed borders, so that the law has been facing

numerous challenges associated with the territory and its sovereignty,

state jurisdiction, criminal, commercial and civil problems, among

others. This is the reason why regulatory frameworks seek to provide

solutions to such legal difficulties; however, legislative work has been

characterized as incipient; there are only international models for

regulating social networks, among which are the European, American

and Latin American models.

Specifically, the legal model of internet regulation in Latin America is

characterized by rules issued by the legislative body and derived from

private entities that propose possible solutions to conflicts arising

from the use of the network, when there is no state intervention. This

model is made up of a set of rules issued by the legislature that allow

the State to impose sanctions and provide protection to users, as well

as recommendations from private entities that regulate the use of the

Internet and social networks.

It is concluded that, in Ecuador, the right to freedom of expression is

contained in the constitution as one of the fundamental civil rights,

however, there are no specific legal norms that regulate the arbitrary

use of social networks; for which it is necessary to adapt to models

based on paradigms of positvization of rights, which apply state or

supra-state norms that positivize inappropriate behaviors, as well as

in paradigms of self-regulation supported by private entities that grant

a certain degree of regulatory autonomy in the face of the arbitrary use

of social networks.

Therefore, in order for the law to offer solutions to the legal problems

arising from the arbitrary use of social networks, criteria must be

unified at the international level and work towards the adoption of

models, legal instruments and codes of conduct that develop an

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effective framework of reference for the resolution of conflicts in social

networks, all regulated through international treaties and agreements.

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