Key concepts

Since 2018, Internet access is considered a human right under agreement and resolution by the United Nations General Assembly. The Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) also stipulated that the right to Internet access must guarantee connectivity and universal, ubiquitous, equitable, affordable and adequate-quality access to Internet infrastructure and the services of information and communication technologies. In particular, it is considered that this right allows exercising and enjoying the right to freedom of expression, among others. This implies that States have the responsibility of ensuring that Internet access is widely available and cannot restrict it without justification. Internet access is recognized as a fundamental right by the laws of several countries, which has entailed, for instance, considering it a public service (Mexico, Finland, Spain, Colombia, etc.).

Although within the audiovisual sector network television channels and audiovisual Internet platforms or the audiovisual contents generated by users in various digital social media cannot be regulated the same way, there are sectors that weren’t previously considered in the national regulation, but as they become relevant industries, the regulatory institutionalism also begins to address various aspects of them.

Corresponde a diversas situaciones en que una institución reguladora creada para defender intereses generales actúa en favor de ciertos intereses políticos o grupos de interés del sector que está encargada de regular. En casos extremos la captura significa una defensa de intereses privados por medio de agencias de Estado, por medio de estrategias tales como crear barreras de entrada para otros competidores, concesión de privilegios legales, monopolios o influyendo en el proceso legislativo de forma favorable para estos privados.

It refers to the first discussions about convergent regulation, which involved telecommunications and broadcasting (radio and TV).

It refers to the most recent status of the discussion about convergent regulation of telecommunications, broadcasting and Internet. 

The human rights doctrine has paid special attention to freedom of expression as a cornerstone of democracy, which has facilitated the development of international standards that include aspects relative to the media that use this spectrum. Human rights organizations have placed special emphasis on pluralism within the context of the media ecosystem, alerting about media concentration, the arbitrary and discriminatory allocation of concessions, or the need for a diversity of communication, public, commercial and community media (CIDH, 2010; CCPR, 2011). The Inter-American human rights system has elaborated on democratic criteria and equal opportunity in the allocation of concessions, including recommendations regarding the independence of granting agencies, the transparency of procedures and the selection criteria. This discussion, however, has not reached the issues of the companies that control telecommunications infrastructures. At the same time, a central challenge in the current discussions about regulation and freedom of expression in the digital era is associated with the characteristics of the Internet -as technology and an interconnected communication network- and the technological convergence process that entails dealing with a platform on which traditional media also operate and are deployed.

A term coined by Robin Mansell for referring to situations in which technologies and markets seem to be on a convergent path, but this changes very quickly. For example, it was once assumed that grouping digital software and hardware in a single machine (as in the case of the first IBM computers) was the result of “convergence”, while they are usually offered separately today.

Technological development that emerges from the reduction of any message to a 0 and 1 binary code. This was historically possible thanks to the development of the mathematical theory of information (Shannon, 1948). However, it is the widespread growth of personal computers and then mobiles, as well as the Internet in the late 20th century and early 21st century, what will cause different cultural industries to converge and other new ones to be created in the same data transmission language, necessarily pushing toward changes in their value chain, along with the creation of new business niches and tradable goods. This requires new forms of regulation of this phenomenon that is social, cultural, communicational, technological and economic at the same time.

The International Telecommunication Union (ITU) identifies a three-stage process: legislative reform, establishment of the regulatory agency and institutional convergence. The last point includes 3 types of different measures: integrating regulatory functions, concentrating functions in a new entity that substitute those previously scattered in various bodies and guaranteeing cooperation in case new and old entities are maintained.

Autonomous public bodies whose configuration is not made through popular vote that have powers to regulate a specific sectoral scope or judge the standards or actions of democratically elected authorities or bodies. According to Francisco Urbina (2007), the power attributed to counter-majoritarian institutions must be subject to coherent controls and responsibilities and be configured as a competence expressly allowed in the Constitution and the law through powers that are expended in the independent exercise of “technical” or objective-demonstrable decisions. The role of these institutions is to re-balance political power, avoiding the "tyranny of majorities". Their legitimacy lies in the effective deployment of their competence and the grounds of their decisions, as well as their pluralist composition.

It is a broad term referring to the entities that allow people to connect to the Internet and transmit content. There are different types of intermediaries, such as Internet access providers, web hosting service providers, social media platforms and search engines. Intermediaries differ from “content producers”, the latter being people or organizations in charge of producing information and publishing it online.

The regulation of competition relates to the prohibition of some corporate behaviors in order to maintain a balance in the market by combining free enterprise, free competition, the collective interest of consumers and public interest, ensuring control and punishment of practices and behaviors such as price collusion and monopolies. In this context, the definition of the relevant market is an instrument used frequently to understand the context in which competitive rivalry among companies is developed and, at the very least, it is used to make a first approach to the situation of dominant companies within a sector. Historically, the promotion and defense of competition has been one of the activities to which the telecommunications regulator has devoted the most time. However, the convergence of media, telecommunications and Internet adds complexities to the conditions for favoring and ensuring free competition. Changes in the value chain of cultural industries have caused a current interrelation among factors whose regulation was separate until recently.

The constitution is an independent variable that influences what a convergent regulatory institutionalism may look like, both due to cross-cutting clauses and sectoral rules and their absence in the current national framework.

A concept coined by Manuel Guerrero and Mireya Márquez for characterizing the Latin American media system as a “predominantly liberal commercial model whose regulations and/or policy-making process is biased in favor of specific economic and political interests and thus challenges existing assumptions about how media should operate in apparently liberal markets” (2014: 9).

Principle according to which Internet providers as well as governments cannot discriminate the data traffic circulating on the Web. This forbids them from charging users an additional fee for the type of content they consume (data, video, audio, games, etc.), as well as from favoring the contents of some platforms above others. In Chile, the Net Neutrality Law (Nº 20.453) stipulates that Internet providers may maintain the administration of their networks, but traffic management cannot be discriminatory or threaten free competition. This means that it cannot be used to block or interfere with the users’ access to contents and applications.

Organización para la Cooperación y el Desarrollo Económicos (OECD, por sus siglas en inglés). Organismo de cooperación internacional  fundada en 1961 compuesto por 38 estados, ​​ cuyo objetivo es coordinar sus políticas económicas y sociales. En la OCDE, los representantes de los países miembros se reúnen para intercambiar información y armonizar políticas con el objetivo de maximizar su crecimiento económico y colaborar a su desarrollo y al de los países no miembros.

Different levels of obligation for actors or sectors subject to legal control. Regulation entails binding obligations. Co-regulation favors the joint and collaborative participation of different organizations and groups in a sector’s rules. Self-regulation is understood as one in which those responsible for a specific area assume an active and direct role in an effort to improve their practices, which is implemented by incorporating a series of instruments such as codes, complaints systems, ethical consulting systems, etc. 

It is one that groups all agencies whose functions are related to the sectors affected by the convergence.

It groups all the regulated sectors under a single authority and establishes cross-cutting policies. In many developing countries, this scheme was adopted to save regulatory costs. Dissimilar sectors are frequently grouped for economic or government policy reasons.

It maintains the current division of regulation by sectors, but each sector adapts to the convergence. It requires a high degree of interaction among sectoral regulators.

A legal experimentation space controlled by the regulator for untested innovative projects promoted by regulated and unregulated entities. It was originally developed in the area of FinTech but has increasingly extended to other dimensions of information and communication technologies. 

That the same institutionalism is in charge of several industries that operate convergently does not mean that all of them must be regulated in the same way (symmetry). For example, contents are not a relevant aspect in the regulation of telecommunications, but they are in television as a medium that uses a scarce resource. Therefore, they cannot be regulated in the same manner (asymmetry). 

Comparative media systems: A theory developed by Daniel C. Hallin and Paolo Mancini (2004). It stems from the assumption that the communication system has a certain autonomy regarding the political system but that it is not absolute, as their actions must be harmonized in some way. This implies that a country’s communication system cannot be modified without taking into account its historical evolution and the social and political context in which it operates. Based on this, the authors distinguish three models for the relationship between communication and politics: polarized pluralist (or Mediterranean) model, democratic corporatist (or North/Central Europe) model, and liberal (or North Atlantic) model. Based on this approach, the Latin American region would be related to the Mediterranean model, clientelism between media and parties being one of its main characteristics (Hallin y Papathanassopoulos, 2002).

The International Telecommunication Union or ITU is the United Nations specialized agency for information and communication technologies (ICTs). It is made up of 193 member states, as well as about 900 companies, universities, and international and regional organizations. It has three main activity areas, organized in “sectors”, which carry out their work through conferences and meetings, as well as Study Commissions that include different types of experts. Each Commission addresses a specific topic, and its participants collaborate to define the frameworks that will ensure an optimal functioning of all services, both existing and future, through the establishment of technical standards or guidelines (Recommendations).