Digital Law: an introduction to the Cuban legal milieu

by Marla Stefania Artiles Vega

I.??????Digital Law: a new branch of Law?

?The advent of information and communications technology (ICT) in the mid-twentieth century started a revolution still evident in infrastructural transformations. From that moment on, the way of living, working and interacting changed for good.

?Under such circumstances, digital rights began to be developed as a logical progression of the human rights regulation in a new sphere. However, it was not a simple reproduction of the real world into the virtual one: E-commerce, legal technologies, cybersecurity and, in general, a whole set of services of the information and communication society have appeared, and they will require to be regulated.

?Digital Law emerges then as a new discipline, for the regulation of social relations within the information and communication society framework, circumscribing those to the digital space.

?It has been indicated by some theorists that it is not a branch of law, categorizing it as another manifestation of classical legal relations. However, understanding Digital Law in this way condemns it to dispersion and to not fully understanding its content.

It is not “just another” scenario of typical relationships, but a deeply complex one, where privacy is particularly delicate, and information is vulnerable to been violated. It is a space to which not everyone can have equal access, and therefore some may be excluded from certain relationships. In short, although it is a mirror world, it is also a new, evolved, different one, which requires rules of its own consistent with values and principles.

?Some Internet principles that should be considered for Digital Law are:

?1) Access to the Internet

2) Non-discrimination in the access, use and management of the Internet

3) Freedom and security on the Internet

4) Development through the Internet

5) Freedom in the use of the Internet

6) Privacy on the Internet

7) Protection of digital data

8) Education on and about the Internet

9) Diversity

II. References to the digital milieu in the current Cuban legislation

?The Constitution of 2019, in its Chapter II referred to international relations, concerning the digital sphere, provides for the Republic of Cuba rejection to cyberwar and calls for the democratization of the cyberspace. Although the constitutional text does not specifically establish any digital rights; certain rights it regulates may have implications in the virtual sphere.

?These include the right to life and to integral development (Article 46); to the free development of personality (Article 47); to the respect for personal and family privacy, to one's own image and voice, honor and personal identity (Article 48); to the inviolability of communications (Article 50); to the freedom of thought, conscience and expression (Article 54). The Cuban fundamental law reiterates, in several of its articles, the importance of technical, science and innovation progress, which can be understood as a recognition of the relevance of the digital spaces in the work of the State.

?In relation to the subject under analysis, the Personal Data Protection Law is of inevitable reference when alluding to complementary legislation to the Constitution. To guarantee the protection of personal data, both physically and digitally recorded, is a stated purpose of this law. Thus, the rights of the owner to access, rectify, correct, modify, update and cancel her or his data are contemplated for both physical and digital databases. Such regulation is appropriate since it guarantees the constitutional right endorsed in Article 97.

?Decree-Law Nr. 370 On the Informatization of Society in Cuba, issued prior to the Constitution, addressed the definition of ICT and established its legal framework. Among the relevant aspects of this rule, it is worth mentioning the regulation on E-commerce and ICT security.

?Regarding E-commerce, it refers to the obligation of natural and legal persons involved in this activity to create a secure environment for such practices. E-commerce is also addressed in the Conceptualization of the Economic Model, among the main characteristics of the social policy. The progress in the development of E-government and E-commerce is mentioned in the policy for science, technology, innovation and environment included in the Economic and Social Policy Guidelines of the Party and the Revolution. Decree-Law Nr. 35 On telecommunications, ICT and the use of the radio-electric spectrum was more recently passed.

?In association with the Guidelines, mainly with guideline Nr. 108 and with the Chapter I of the Conceptualization of the Model, the Integral Policy for the Improvement of the Informatization of Society in Cuba was proposed, which presents, among its principles, the defense of the Revolution, cybersecurity, sustainability and technological sovereignty, access to citizens, human capital development, development and modernization, research implementation, development and innovation with the production and commercialization of products and services. Reference is made in this document to telework and E-commerce.

?In the field of intellectual rights, the Law on the Rights of the Author and the Performing Artist, passed in May 2022, included the novel regulation of rights over computer applications and programs, as well as over databases.

?The new Penal Code, also passed in 2022, dedicates a title to crimes against the integrity of telecommunications, ICT and its services. Additionally, in the regulation on forgery of documents, reference is made to the introduction, alteration or elimination of computer data in public, banking and commercial documents. Interference with computer data or operations is encompassed in the crime of fraud. Regarding crimes against literary and artistic creation, the use of computer intending to usurp the status of the artist; and modify, reproduce, and distribute the creation among other cases carried out without the author's authorization, are punished.

?III. Concluding remarks

?The phenomenon of digitalization is relatively recent in Cuba. Nevertheless, its fast development and introduction in the different branches of social, economic, cultural and political life require an appropriate formulation of the law to answer the questions it raises.

?Regulations in this regard are clearly scarce and incipient. In this respect, legislative dispersion is identified as a particularly worrying aspect, since there is no clear provision specifically devoted to cyberlaw and digital rights. The allusions in law correspond to solutions of specific aspects emerged in different branches of law by the introduction of virtual media.

?In the digital milieu, human rights and the dignity of individuals must not be unprotected. That is why, for the sake of a consistent protection, it is necessary to declare which will be the digital rights recognized by the Cuban legal system as well as the ways to ensure their effective enforcement.