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Sexting is freedom of expression

Kenneth Buker

On 10 July 2016, the National Institute for Transparency, Access to Information and Personal Data Protection (Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales, INAI), in association with a number of other organisations (Pantallas Amigas, Google México, Canal del Congreso, InfoDF, DIF Nacional, la Red por los Derechos de la Infancia en México, y la Secretaría Ejecutiva del Sistema Nacional de Protección Integral de Niñas, Niños y Adolescentes), released a statement warning about the consequences of sexting as part of a campaign called "Think before Sexting: 10 reasons to avoid sexting". Sexting involves sending sexually explicit messages, images and/or videos via electronic devices such as computers or, more frequently, cellular phones. The campaign is publicising a number of messages, including:

  • "Sexting, apart from legal and moral considerations relating to age of the participants, does not necessarily entail harm, but it can involve risks with serious consequences for those who participate in it that, on occasion, have even resulted in suicide."
  • "Sexting is a risky activity that can cause problems: damages to 'honour' and personal image; loss of intimacy and privacy; sextorsion: people who blackmail you in relation to sexting; cyberbullying: people who harass or insult you; and accusations of involvement in child pornography if you are a minor.
  • "So, if someone loves you, do you think they would ask you to participate in SEXTING? And, if you love yourself, do you think you should expose yourself to the risks of SEXTING?"

In an interview with Televisión Educativa (Educational Television), INAI Commissioner Javier Acuña warned of a number of negative outcomes from a perspective that is not situated in the free will and consent of individuals participating in sexting, but rather from a perspective of blame. In the interview he outlined the following arguments: “Young people exhibit themselves… afterwards many young people are affected by it, especially girls… sexting is misconduct… we have a role as authorities to protect personal information.”

The campaign promotes certain values, with youth as the target population – as a generic life phase – which hinders analysis of whether the campaign intends to warn children and adolescents, or youth in general. According to the Mexican Youth Institute (Instituto Mexicano de la Juventud), the term youth encompasses individuals between 12 and 29 years of age.

In this sense, ARTICLE 19 is concerned that in the case of individuals who are not minors the campaign is promoting self-censorship, while at the same time failing to emphasize the need to file complaints against those who disseminate private information, as well as coming from a perspective of fear of discovery by family members and failing to support digital options for sexual free expression. At the same time it associates a number of ways of living, types of romantic relationships, the use of drugs and alcohol, etc. with the wide dissemination or “viralisation” of images and it does not outline the importance of mutual consent. It is important to note that the campaign does not come from a position of punishing those who disseminate information without permission from the owner and it places blame on individuals who decide to share and explore their bodies online.

On the other hand, in the case of minors, progressive autonomy should be a focus of the discussions. Any preventative policy relative to children and adolescents should incorporate a joint vision that allows complete enjoyment of sexual rights and not just a perspective of inhibition of all associated activities.

The right to freedom of thought, opinion and expression encompasses the premise that all individuals have the right to express their sexuality by way of –among others– their appearance, communication and behaviour, with due respect for the rights of others. And as regards sexual and reproductive rights, everyone has the right to privacy relating to sexuality, sexual life and choices regarding one's own body, consensual sexual relationships and actions, without interference or arbitrary intrusions. The difference, however, between the two rights expressed above is that the second right is extremely personal and self-determined. In other words every individual makes decisions regarding their life and their personal information, including with whom and how they share it.

As such, the intrusion of the state into the decisions of individuals exercising this right represents an arbitrary action and an absolute restriction on the freedom of expression of those who choose to sext. In other words, for the INAI sexting constitutes a threat to the right to privacy, but the organisation fails to consider the fact that constraints and stigmatisation –in the case of individuals over 18 years of age- is a limitation on freedom of expression.

With respect to sexting it is important to take into account that not only does it involve sexual rights, individual rights to freedom and autonomy and the right to make decisions about one's own body and images, it also involves the right to freedom of expression. * Concepts and values such as recognition of dignity, plurality of identities, self-worth, the formation of moral judgements, the free development of individual personalities and sexual identity are factors that become part of sexting when individuals of their own volition decide to carry it out as a form of sexual expression.

In this sense, ARTICLE 19 notes that respect for privacy is paramount, but it is not the job of public officials to interfere, nor to judge sexting as an immoral or illegitimate practice since, as has been mentioned, this infers a limitation on freedom of expression.

ARTICLE 19 calls on the INAI and InfoDF to take the principle of proportionality into consideration in promoting the right to privacy, and to focus their efforts on punishing those who use personal information to harm the life, integrity and dignity of others.

On previous occasions, ARTICLE 19 has emphatically noted that the right to protection of personal information is not an absolute right. But this right should only be restricted and limited in accordance with the principle of proportionality and only in exceptional circumstances, particularly in instances involving a conflict with freedom of expression and information.

*The Declaration of Sexual Rights developed and agreed upon at the World Association for Sexual Health congress in Spain states:
The right to sexual freedom: Sexual freedom encompasses the possibility for individuals to express their full sexual potential. However, this excludes all forms of sexual coercion, exploitation and abuse at any time and situations in life.
The right to sexual autonomy, sexual integrity, and safety of the sexual body: This right involves the ability to make autonomous decisions about one's sexual life within a context of one's own personal and social ethics. It also encompasses control and enjoyment of our own bodies free from torture, mutilation and violence of any sort.
The right to sexual privacy: This involves the right for individual decisions and behaviours about intimacy as long as they do not intrude on the sexual rights of others.
The right to emotional sexual expression: Sexual expression is more than erotic pleasure or sexual acts. Individuals have a right to express their sexuality through communication, touch, emotional expression and love.

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