Concerns Over the Proposed “Anti-Meme” Law in Mexico
The Mexican Senate is currently reviewing a controversial initiative dubbed the “anti-meme law,” which has raised significant concerns regarding potential digital censorship practices within the country, particularly focusing on parodies or satire that critique the government. In early June, the Secretary of the Interior presented a reform project to the upper house of the Legislature, proposed by President Claudia Sheinbaum, aimed at amending the Penal Code and the Federal Law for the Protection of Industrial Property (LFPPI).
A key aspect of the proposal is the introduction of Article 403 Bis to the LFPPI, which establishes a new criminal offence concerning the improper use of governmental identity. This legal provision seeks to impose penalties ranging from three to seven years of imprisonment for any individual who uses, reproduces, imitates, or incorporates, for commercial purposes, official graphic identities, electronic domains, or any official symbols associated with public powers, autonomous bodies, or governmental entities across all three levels of government, with the intent to “mislead or deceive one or more individuals through any means, including electronic, technological, or digital.”
This initiative is part of a broader set of proposed reforms that, according to the federal government, aim to strengthen the legal framework surrounding intellectual property rights and align it with certain international trade agreements to which Mexico is a party, including the United States-Mexico-Canada Agreement (USMCA). However, critics argue that the introduction of Article 403 Bis constitutes a mechanism that could undermine freedom of expression in both traditional and digital media, which they believe poses a threat to democratic values.
Political Reactions to the Proposed Law
Ricardo Anaya, a senator from the National Action Party (PAN) and leader of its parliamentary group, has expressed grave concerns about the implications of such legislation, stating that “punishing individuals with up to seven years in prison for creating a meme or parody is not characteristic of a democracy. When attempts are made to silence criticism, satire, and free expression, we enter dangerous territory. Therefore, we reject this proposal and demand its cessation, pledging to vote against it. Freedom of expression is non-negotiable.”
Similarly, Manuel Añorve Baños, a senator and coordinator of the Institutional Revolutionary Party (PRI) faction, accused the current administration of attempting to censor criticisms aimed at it. He remarked, “Morena no longer appreciates what it sees on social media: it is irritated by criticism and parody, and now wishes to censor them. However, memes, satire, and political commentary are also forms of free expression.”
The pivotal question arising from this political debate is whether authorities could arrest and penalise ordinary users or content creators for employing institutional graphic identities in parodies or memes that critique or mock the government. The answer is conditional.
Defining “Commercial Scale” in the Context of the Law
The proposed Article 403 Bis introduces two concepts that condition the sanctions related to the improper use of governmental graphic identity: the act must occur at a “commercial scale” and be intended to “mislead or deceive.”
In this context, it is important to note that the legislative proposal defines the term “commercial scale” through the addition of a new Article 406 Ter. This provision clarifies that the concept pertains to the improper use of a right protected by the Federal Law for the Protection of Industrial Property, whether through actions aimed at directly profiting from the exploitation of the protected asset or indirectly gaining a competitive advantage in commercial, industrial, or service activities.
The project specifies that, for the misuse of these properties to be classified as an infringement, it is not necessary for an individual to achieve the financial benefit they sought. It suffices that the action was undertaken with the intent of obtaining such a benefit. The term “commercial scale” also encompasses practices that result in significant detrimental impact. In other words, this relates to actions or activities that, without the intent to generate economic profit, adversely affect the rights holder’s market position.
Concerning the offence that Article 403 Bis aims to introduce, the “commercial scale” would operate under the premise of “significant detrimental impact” or “competitive advantage/value added,” as the violation would arise from the unauthorised use of institutional identity to induce error or deception.
Understanding Parody Versus Deception
Nevertheless, the article clarifies that the offence is only committed when the use of these governmental graphic properties is intended to mislead or deceive. This implies that the mere use of institutional identity at a “commercial scale” does not constitute an infringement in itself; the deceptive intent must be demonstrated.
Thus, if a user uploads content to social media that includes official logos, institutional colours, or symbols for the purpose of commentary, analysis, satire, parody, critique, meme, or reaction, but the material is easily identifiable as non-official, there would theoretically be no infringement. This classification of a non-malicious act, according to the reform project, would need to be substantiated by the Public Prosecutor’s Office.
The reform proposal, informally dubbed the “anti-meme law,” has received approval from Senate committees but still requires validation from the full Senate. The wording of Article 403 Bis, along with the other proposed amendments, remains subject to change. As such, it is essential to monitor developments to ascertain whether this new proposal serves as a mechanism to bolster Mexican regulations in line with its trade agreements or if it represents a hurried legislative effort towards censorship, as alleged by Anaya and other opponents.