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María Simon
Ministry of Education and Culture
Reconquista 535, piso 9

Repsected Minister Simon:

On behalf of Human Rights Watch, I write to express concern that two major television channels, 4 and 10, have decided not to broadcast a television commercial that is part of a campaign by Ovejas Negras, a collective working on lesbian, gay, bisexual, and transgender (LGBT) people's human rights in Uruguay. Channel 12 accepted to air the campaign only after 10 p.m. (non prime time) at the price of an 8 p.m. prime time emission.

Through posters and television and radio spots, the campaign raises awareness about Laws 17.677 and 17.817, which outlaw hate crimes and prohibit discrimination on various grounds including sexual orientation and gender identity. The commercial in question shows a lesbian couple, a gay couple and a transgender couple kissing. The slogan of the spot is "a kiss is a kiss." The public television stations, Channels 5, and TV Ciudad have both agreed to broadcast the commercial for free several times a day.

We are concerned that there are not adequate guarantees to ensure that private media outlets meet their obligations not to discriminate on protected grounds when fulfilling their obligations to disseminate public interest information.

According to the coordinator of Ovejas Negras, Channel 10-Saeta Television, refused to air the commercial, stating that the images were "not esthetic" and "were contrary to the station's criteria." It considered the commercial "violent" and "aggressive." Channel 4-Montecarlo joined channel 10 in its decision. Channel 12-Teledoce, responded to Ovejas Negra's request 15 days after the request was made and only agreed to run the commercial after 10 p.m. Ovejas Negras offered to pay all three channels for the broadcast of the advertisement. Channel 12 charged them prime time rates at a non prime hour.

Although the channels in question are private commercial entities, television stations have public duties regulated by law. As you are aware, Decree 734/78, issued by the Ministry of National Defense on December 20, 1978, regulates, among other things, advertising on private commercial stations, and categorizes all broadcasting services-both private and public-as "public interest services". Article 33 of the Decree gives the National Directorate of Communications the power to require channels to devote up to 30 minutes a day to broadcasting information deemed to be in the national interest. As such the state's responsibility is clearly engaged to ensure that these entities do not discharge their public functions in a manner that is discriminatory or that fails to respect protected human rights.

Human Rights Watch believes in this case that there is a clear government responsibility to ensure that any decision, even by a private entity, to refuse to broadcast a commercial designed to promote public debate on a matter of great public interest, is not based on a prohibited discriminatory ground, and is fully compliant with respect for freedom of expression.

Whilst we recognize that the public television stations have accepted to broadcast the commercial, it is significant that private channels in Uruguay enjoy high ratings and are watched by a far higher percentage of the population than public channels. According to Medias y Moda, a communication magazine, in February 2009, Channel 12 had an average rating of 62.9%, followed by Channel 10, 53.6%, and Channel 4, 46.9%. In contrast, Channel 5, a public channel, had only a 12.9%  rating (http://www.mediasymodas.com/HISTORIAL/060.html). This key factor must be taken into account by the government when regulating the manner in which such channels can be accessed for the purposes of disseminating public interest information by individuals and organizations. It is clear that access to private media is of central importance for groups disseminating public interest material, or who wish to engage in a general debate of pressing public importance.

In Vgt Verein gegen Tierfabriken v. Switzerland, the European Court on Human Rights found a violation of the right to freedom of expression when a private television station refused to broadcast a commercial prepared by an association for the protection of animals. The Court considered that the association was simply seeking to participate in a general debate, and the domestic authorities did not demonstrate relevant and sufficient reasons why the refusal to broadcast could be justified. The Court noted in particular that the association had no other means than via the television programs of the company to reach everyone nationwide.

In other countries in Latin America, such as Brazil, action to address what may be considered as discriminatory programming against LGBT people by private media, has been tackled by the judiciary. In October 2005, thirty human rights organizations in Brazil commenced a civil case against la Rede TV. This private network had broadcast a show, "Tarde quente", which the plaintiffs successfully argued depicted LGBT people in a homophobic and discriminatory manner. The judge as a remedy ordered la Rede TV to broadcast thirty hours of programming with a human rights and educational content by the organizations that had taken part in the class action.

In Advisory Opinion OC-5/85, the Inter-American Court, has also reiterated that freedom of expression (as protected by Article 13 of the American Convention on Human Rights) requires that "the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media."(Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, November 13, 1985, Series A, No. 5, para. 34-35). Uruguay has been a party to the American Convention since 1985.

Uruguay is also party to the International Covenant on Civil and Political Rights (ICCPR) since 1970. The ICCPR guarantees the right to freedom of expression (Article 19) and to non discrimination (Article 2 and 26). The United Nations Human Rights Committee-charged with monitoring states' compliance with the ICCPR-held in 1994 in the case Toonen v. Australia, that sexual orientation should be understood as a status protected against discrimination by the treaty's equality provisions. Uruguay has the obligation to respect and protect these rights, in this case to ensure that they are fully respected by private entities exercising public functions.

We welcome the fact that Uruguay has been a regional and global leader in protecting LGBT people's human rights and we hope that in this case, that leadership will again be demonstrated. We urge you therefore to inquire into the reasons behind the decisions by Channels 4 and 10, not to broadcast the commercial prepared by Collective Ovejas Negras and the reason given by Channel 12 to run the commercial only after 10 p.m. We also urge you to take such measures as may be necessary to ensure that private media are not allowed to act in a manner that would unlawfully discriminate against LGBT people.

Sincerely,

Scott Long
Lesbian, Gay, Bisexual, and Transgender Rights Project
Human Rights Watch

Cc: Honorary Commission against Racism, Xenophobia and Discrimination
       National Communications Regulatory Unit, Communications Services

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