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Legal Framework

 

The legal framework

Under the Constitution, Peru´s supreme law, the state protects the fundamental right of the people to liberties of information, opinion, expression, the dissemination of thought and the possibility of doing so through media. It also indicates that the exercise of informing and presenting opinion also includes founding media. Consequently, any action of censorship, the closure of a source of expression or the impeding of its free circulation, is a crime.

The main text also protects ethnic and cultural plurality and defines monopoly and media market cornering as illegal and prohibited practices that violate the aforementioned rights.

The prohibition against exclusivity, monopoly and cornering contained in the Constitution is further developed in the Radio and Television Law (2004). This regulation--created after the co-option by the Fujimori regime of the editorial policies of certain television channels-- establishes prior control over market domination through limits to the number of radio and television licenses.

Specifically, the Radio and Television Law states that the radio electric spectrum is a scarce natural resource that forms part of the wealth of the nation and that the Ministry of Transport and Communications is the entity charged with assessing and processing requests to operate free-to-air radio and television stations and private services, as well as designating stations and channels for this purpose.   It also establishes that only Peruvian nationals or companies created in the country can be holders of authorizations and licenses.

The Constitution, Peru´s supreme law, prohibits monopolies and cornering and says that the media must cooperate with the state in the education and moral and cultural training of the country.

The Constitution also establishes that the media cooperate with the state in the education and moral and cultural training of the country. The legal framework allowed a group of journalists to file a complaint before the courts against El Comercio, the principal media group in the country, for violating the right to freedom of information and opinion, by buying one of competing print media.

The Constitutional Tribunal, based on the American Convention on Human Rights and the Inter-American Court of Human Rights, determined that freedom of information and expression derive from the dignity of the person. This individual dimension prevents anyone from being prohibited from expressing their thoughts and also guarantees the “rights of all people to receive any information for the purpose of forming their own opinion”, and to “receive true and complete news” and “information of all kinds”.

Some judicial organs also recognize as a contribution, the Special Rapporteur for Freedom of Expression of the Organization of American States. This states that: “The exercise of freedom of expression depends on communications media providing information freely and independently...[permitting] individuals to form their opinion...Specifically, the need for plural information is vitally important in a society´s decision-making processes...Only when the individual is informed can he or she evaluate and freely adopt one position or another across the political spectrum”.

Network neutrality

Network neutrality in Peru dates back to 2012, with the enactment of the Law on the Promotion of Broadband and Construction of the National Dorsal Fiber Optic Network ("Broadband Law") issued by the Congress of the Republic under Alan García’s government.

Article 6 of the law applies for the first time in our legislation the term "Net Neutrality" and prohibits operators from “arbitrarily blocking, interfering, discriminating or restricting the right of any user to use an application or protocol, regardless of its origin, destination, nature or ownership.”

In 2013, the Ministry of Transportation and Communications (MTC) approved the regulations of the Broadband Law, which detailed the legal mandate and the scope of the network neutrality principle, as well as introducing penalties for companies violating the provisions of the law.

Finally, in 2016 the Supervisory Agency for Private Investment in Telecommunications (OSIPTEL) approved the Net Neutrality Regulation. This regulation gave effect to the legal mandate that the Executive had given the regulator through the approval of the Broadband Law.

The Network Neutrality Regulation sets out the principles, permitted and prohibited activities measures, and the regime of penalties and fines for network management practices that violate the principle. It sets the limits that apply to Internet access service providers when designing and operating their services without preferential treatment or arbitrary discrimination with respect to some type of content, protocol or application.

The following behavior by Internet providers is prohibited under the regulation as contrary to network neutrality.

Summary table of sanctioned behaviorsRatingPenalty US$ approx. (*)
Disobey OSIPTEL'S Very seriousUS$ 445.454

Carry out network management activities (block web pages, reduce speed of data transmission, filter) without OSIPTEL’s authorization.

Block IP addresses, web pages, applications or services for reasons other than those allowed.

Manipulate equipment to prevent free access to protocols, applications or services.

Fail to allow a user to utilize any device to access the Internet.

Fail to inform OSIPTEL about the network management activities carried out by the operator.

SeriousUS$ 190.910

Fail to inform the user or OSIPTEL about the network management measures carried out by the operator or publish false information.

Carry out permitted network management measures (dynamic network session) outside the regulatory framework.

Exceed the allowed time limit to apply an emergency network management measure (attacks, viruses, or others).

Fail to have an emergency protocol or communicate it to OSIPTEL. Carry out management measures other than those in the protocol.

Fail to register with or communicate to OSIPTEL the emergency measures related to Network Neutrality.

Carry out network management measures (block web pages, reduce data transmission speed, filter) or offer Internet access products arbitrarily.
MinorUS$ 63.635
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