IV. The Media
President Chávez and his supporters in the Venezuelan Congress have undermined freedom of expression through a variety of measures aimed at influencing the control and content of the country's mass media. They have extended and toughened penalties for speech offenses; implemented a broadcasting law that allows for the arbitrary suspension of channels for a vaguely defined offense of "incitement"; limited public access to official information; and abused the government's control of broadcasting frequencies to punish stations with overtly critical programming.
After nine years during which the country has been polarized between Chávez's supporters and detractors, Venezuela still enjoys a vibrant public debate in which anti-government and pro-government media are equally vocal in their criticism and defense of Chávez. However, in its efforts to gain ground in this "media war," the government has engaged in discriminatory actions against media airing opposition viewpoints, strengthened the state's capacity to limit free speech, and created powerful incentives for government critics to engage in self-censorship. Should the government choose to utilize the expanded speech offenses and incitement provisions more aggressively to sanction public expression, the existing political debate could be severely curtailed.
Chávez and his supporters have attempted to justify media restrictions as a response to what they consider to be irresponsible reporting and excessively partisan coverage by journalists and broadcasters. They accuse opposition media of conspiring to remove Chávez from office, and even participating directly in the 2002 short-lived anti-Chávez coup. They also justify the measures as being part of a broader effort to "democratize" the media so that it reflects viewpoints that were largely excluded from the commercial media in the past.
States have a right to sanction media that incite violence, the commission of crimes, or breaches of public order. However, under international norms on freedom of expression, broadcasting regulations must be precisely defined in order to avoid overbroad or arbitrary interpretation by officials that constrain free expression and the public's access to information and opinion. Permissible restrictions on speech do not include sanctions for expressing critical opinions of government officials, however offensive they may be. Governments are also fully justified in seeking to regulate the concentration of media ownership and in backing public service and community outlets in order to promote a more diverse and plural public debate. However, governments may not abuse their control of broadcasting frequencies to discriminate against outlets whose editorial line is not to their liking.
The Venezuelan government's "media democratization" efforts have produced positive results in at least one area. By licensing and giving financial support to hundreds of start-up community broadcasting ventures, the Venezuelan government has taken a leading role in the region in promoting local radio and TV stations.
However, the government's legitimate efforts to promote alternative media at the local level have been overshadowed by its efforts to restrain critical opinion. Chávez and his supporters in the National Assembly have resorted to actions and measures, aimed at influencing large-scale print and broadcast media, that run counter to international norms and threaten freedom of expression. Specifically, they have:
·Expanded the scope of insult laws (desacato), which punish disrespectful expression toward government officials, and toughened penalties for criminal defamation and libel.
Chávez and his supporters in the National Assembly have expanded the scope of laws punishing expression deemed to insult public officials and established draconian penalties for defamation, including increased prison sentences and onerous fines. Under reforms to the criminal code enacted in 2005 they increased the number of public officials benefiting from the protection of insult laws and greatly increased penalties, including prison terms, for criminal defamation. These measures are inconsistent with Venezuela's obligations under international legal norms of press freedom.
Journalists working for opposition media have borne the brunt of prosecutions under these laws in recent years, generating pressure on these media to tone down criticism. Were the government to aggressively pursue prosecutions under the new provisions, it would dramatically shrink the space for free expression in Venezuela.
·Expanded and toughened the penalties of vaguely defined "incitement" provisions that allow for the arbitrary suspension of TV and radio channels.
The 2004 Law on Social Responsibility in Radio and Television (hereinafter Social Responsibility Law), which replaced broadcasting regulations enacted in 1984, expanded the scope of an already broad prohibition on incitement and established severe penalties for broadcasters that violated it. Under the 2004 law, broadcast media can face suspension and ultimately revocation of their licenses for broadcasting material deemed to "promote, justify, or incite" war, breaches of public order, or crime. The transmission of such material can also be banned under this law. The broad and imprecise wording of the incitement provisions, the severity of the penalties, and the fact that the law is enforced by an executive branch agency all increase the broadcasts media's vulnerability to arbitrary interference and pressure to engage in self-censorship.
On several occasions officials have warned channels covering protests or showing repeated images of violence in demonstrations that they could be sanctioned under the incitement provisions. Given that government officials often claim there are subversive intentions behind critical news coverage, journalists and broadcasters have good reason to fear that these loosely-worded provisions could be used to sanction them for legitimate news coverage.
·Restricted the public's access to information held by public officials.
Government officials routinely deny or fail to respond to requests for information by the press and the public. This lack of transparency contravenes Venezuela's obligation under international law to guarantee the right to "seek, receive, and impart" information-which includes a positive obligation to provide access to official information in a timely and complete manner. Access to official information is crucial to ensure democratic control and transparency, and to promote accountability within the government.
While the right to official information is recognized in Venezuela's 1999 Constitution, the government has failed to promote legislation to define the grounds under which information may legitimately be denied. It has also failed to provide a mechanism to hold accountable those officials who arbitrarily reject or ignore requests for information.
·Abused state control of broadcasting frequencies by threatening or punishing channels for critical programming while favoring state-owned and commercial channels that refrain from strong criticism of the government.
On numerous occasions since the 2002 coup, Chávez has personally threatened channels sympathetic to the opposition with revocation of their broadcasting licenses. Such threats appear to have led to editorial changes by some broadcasters, creating a media landscape more favorable to Chávez. In procedures lacking transparency, the national broadcasting authority blocked applications for frequencies by Globovisión, a news channel that refused to yield to such pressures, while granting them rapidly to newly created state channels.
The most flagrant example of this discriminatory policy was the government's treatment of Radio Caracas Television (RCTV), Venezuela's oldest television channel and a constant critic of Chávez. On his orders, the government singled out RCTV-one of the four channels Chávez had accused of involvement in the coup-by refusing to renew its broadcasting license. At the same time, it renewed that of Venevisión, a rival channel that he had also repeatedly accused of involvement in the coup but had since cut its overtly anti-Chávez programming.
Whereas Chávez faced an almost entirely hostile broadcast media early in his presidency, he has since significantly shifted the balance of media forces in the government's favor. This shift has been accomplished by stacking the deck against critical opposition outlets while advancing state-funded media that are heavily slanted in favor of the government. For example, TVES-the state-funded channel created to occupy the frequencies vacated by RCTV-has proven to be no less partial in its pro-Chávez coverage than other state channels, despite much fanfare that it would be Venezuela's first genuine public service channel.
Instead of exercising its crucial role as guarantor of freedom of expression, the Supreme Court has effectively backed the government in these policies. It has declared insult laws to be constitutional and declared that the findings of the Inter-American Commission of Human Rights are not binding on Venezuela if they conflict with the Constitution. Most notably, the court failed to protect the right to freedom of expression and respect for due process in the RCTV case. The court requisitioned RCTV's transmitters-without a time-limit or compensation-for use by a newly created state channel, and yet failed to address the central human rights issues of freedom of expression, due process, and discrimination affecting RCTV's journalists and owners.
Venezuela's Polarized Media
The print and broadcast media have been the site of intense political struggle throughout the Chávez presidency. Both the government and its critics have used the media at their disposal as tools to attack each other and to mobilize their own supporters. Media coverage has tended to be extremely partisan on both sides.
Opposition Media
During the early years of Chávez's government, four private television channels-Radio Caracas Television (RCTV), Venevisión, Televen, and Globovisión-dominated the public airwaves. Until 2004, all four stations sided openly with the opposition, providing uniformly partisan and anti-Chávez news coverage and commentary.
This partisanship was most evident during the short-lived 2002 coup. All four channels gave extensive coverage to the opposition march on April 11, but on April 12 and 13, 2002-after Chávez had been taken by the military to an unknown destination and his supporters were filling the streets demanding his return-they substituted cartoons and old movies for news coverage.[167]
The news blackout of Chávez's return to power was followed by highly partisan coverage of the oil strike and opposition marches in December 2002 and January 2003, when opposition stations replaced commercial advertising with donated opposition political spots calling on people to join the protests. Apart from slanted news coverage, the private stations had interview programs dedicated to discrediting Chávez's policies, in which pro-government experts were rarely invited to participate.
The print media was also predominantly in the opposition camp. Two long-established daily newspapers-El Universal and El Nacional-were persistent critics, and another critical paper, Tal Cual, although with a much smaller circulation, also had considerable influence.
Government Media
During the early years of his government, Chávez's administration had only one national television channel at its disposal (Venezolana de Televisión, VTV-Channel 8). Although VTV is a state channel with a mandate to be non-partisan, under Chávez it has been as partisan and biased as its private counterparts.[168]
Chávez ran and continues to run his own television and radio show on VTV and National Radio, "Hello President," as a vehicle to communicate directly with his supporters. "Hello President" became his preferred venue for announcing new policy initiatives and he often uses it to challenge his media critics and political enemies.
One state television program openly attacks the opposition and the government's press critics. A nightly show on VTV, La Hojilla (The Razorblade), has used secretly recorded conversations, private documents, and similar material to expose or ridicule media critics. Chavéz often talks live on the phone to its host, Mario Silva, adding his own observations to Silva's attacks.
Chávez also made up his media deficit by using presidential authority to order all stations-including private television and radio stations-to interrupt programming without prior warning and broadcast his speeches and other government events live, often for hours on end, at peak viewing hours.[169] In the nine years of his government, the president has ordered 1,710 such mandatory broadcasts, totaling 1,048 hours or 43 days of uninterrupted transmission, according to a recent study.[170]
In the print media, two privately owned newspapers, Venezuela's largest selling daily, Últimas Noticias, and the Zulia-based newspaper Panorama, have been largely sympathetic to Chávez and his government.
Community Media
In addition to the opposition and government media, a vibrant community media sector has emerged since the events of April 2002. After decades of being shut out by the mainstream media, a network of community activists seized upon Chávez's 1998 triumph to push for state support for community radio initiatives. They worked with Chavista lawmakers to draft legislation on alternative media that is among the most advanced in the hemisphere.
The Venezuelan law establishes a duty on the government to support community radio stations by granting licenses and providing seed capital, infrastructure grants, and training.Although the government was slow to implement the law, the licenses and financing began to flow after community radios proved their political value during the 2002 coup by breaking a news blackout by the private media and summoning Chávez supporters to the demonstrations that helped return him to power. By August 2007, 266 community radio stations and more than 30 community television outlets were licensed and operating, according to the National Telecommunications Commission (CONATEL).[171]
The "Media War"
After the 2002 coup was overturned, Chávez and his supporters adopted an increasingly adversarial approach to the private media. They accused the United States of leading the international media and their Venezuelan counterparts in a "media war" to smear and destroy his government.[172]
Government officials vigorously engaged the media "enemy." The communication and information minister said in an interview that the government was waging "a battle for the hearts and minds of the population," with the aim of gaining "state hegemony in communication and information."[173] The minister described VTV's program La Hojilla as "a tool for the media war, whose purpose is to dismantle the false opinions created by the private media which hope to fool the people and destabilize the revolutionary process."[174] In his speeches Chávez demonized his media critics as "fascists," "terrorists," "enemies of the people," "liars, "coup-mongers," "immoral," "trash," and "laboratories of psychological warfare," among other things.[175]
These tirades, often delivered in speeches all media were obliged to transmit, fueled street violence between Chavez's supporters and opponents. In the months following the reversal of the coup, Chávez followers physically attacked and threatened scores of journalists and cameramen working for opposition outlets.[176]
Although the number of such incidents declined after 2004, journalists working for media identified with the opposition have remained vulnerable to physical attack and threats of violence. The freedom of expression NGO Espacio Público reported 20 cases of aggression and intimidation of journalists during 2007, including three cases in which journalists' cars were reportedly set on fire while parked outside their homes.[177] In July 2008, as the campaign for the November 2008 regional elections gathered steam, press monitoring groups reported several new cases.[178] Such attacks are encouraged by the fact that those responsible for previous incidents have rarely, if ever, been identified and prosecuted. The Inter-American Court of Human Rights is currently considering the cases of 44 journalists and workers at Globovisión and of 20 journalists and workers at RCTV who allege they were victims of physical attacks or threats, among other violations of free expression.[179]
Alongside its verbal onslaught against the private media, the government expanded the number of outlets under its control. In addition to VTV it now also controls or owns three recently created channels: Vive TV, a cultural and educational channel founded in 2003; Telesur, an international cable channel which transmits nationally on public airwaves using the frequency once occupied by the private Canal Metropolitano de Televisión (CMT);[180] and Venezuelan Social Television (Televisora Venezolana Social, TVES), set up in May 2007 to occupy RCTV's nation-wide frequencies. In addition, the National Assembly, now composed exclusively of pro-Chávez legislators, has its own cable television channel, Asamblea Nacional Televisión (ANTV), which transmits on public airwaves in Caracas.[181] The more recently created public stations rarely transmit programs challenging the government view.[182]
In addition to creating new state-financed channels, Chávez and his supporters have taken steps to limit broadcasting they deem unacceptable. The Social Responsibility Law introduced wide-ranging restrictions on the content of radio and television broadcasting. As this chapter details below, these legal constraints gave the state tools with which to interfere in free expression and intimidate media critics.
In 2005 two of the stations that had previously given full support to opposition campaigns, Venevisión and Televen, pulled controversial opinion shows and ceased to engage in overtly anti-Chávez commentary. Only RCTV and Globovisión retained their clearly critical editorial line.
Despite his repeated threats, Chávez refrained for years from closing down any media outlet. Indeed, prior to 2007, the only interruptions of broadcasting came during the short-lived coup of 2002, when coup supporters backed by police shut down VTV and National Radio and the police raided three community television and radio stations.[183]
However, in December 2006, Chávez abruptly announced that he would not renew RCTV's 20-year broadcasting license when it expired the following year. Despite a national and international outcry, RCTV-the only remaining channel left on nation-wide public airwaves with an overtly critical line- was taken off the air on May 27, 2007. Its frequencies and national network of transmitters were taken over by a new government-funded channel, TVES, which has failed to deliver the plural and balanced public service broadcasting the government promised it would. RCTV was obliged to convert to cable in order to continue broadcasting.
Although the government has significantly shifted the constellation of broadcast media forces in its favor, political opponents continue to have access to critical outlets, albeit fewer in number. They include the cable channel RCTV International (the subscription channel through which RCTV reinstated its transmissions), Globovisión, Unión Radio, and several major national newspapers.[184]
Nevertheless, as the rest of this chapter shows, the government now has an array of legal weapons with which it can clamp down on government critics at any moment. By promoting self-censorship, these laws constrain the expression of critical opinion, even when they are not rigorously enforced. The government's discriminatory use of its control of the airwaves and its repeated threats to use this control against critical channels also represent significant threats to freedom of expression.
Toughening Speech Offenses
In March 2005, Chávez and his supporters in the National Assembly expanded existing speech offense laws and established draconian penalties, including increased prison sentences and onerous fines for expression deemed to "offend" government officials.
These measures are inconsistent with international legal principles on press freedom. International human rights bodies have long called on governments around the world to decriminalize speech that may displease public officials so as to allow the press to effectively monitor government actions. But Venezuela has gone in the opposite direction. It has reaffirmed and extended insult laws (desacato)-which directly violate international freedom of expression norms-and introduced prison sentences of up to four years for defamation.
International Norms
Insult laws (known in Spanish as leyes de desacato), which criminalize expressions deemed to offend the honor of public officials and institutions, directly contravene international human rights norms.[185]
The Inter-American and European systems on human rights both consider insult laws incompatible with the free debate essential to democratic society. In a landmark 1995 report, the Inter-American Commission on Human Rights (IACHR) concluded that these laws are incompatible with Article 13 of the American Convention on Human Rights, which protects the right to freedom of thought and expression. The commission wrote, "[t]he special protection desacato laws afford public functionaries from insulting or offensive language is not congruent with the objective of a democratic society to foster public debate." It also noted that in democratic societies, political and public figures must be more, not less, open to public scrutiny and criticism. "Since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance for criticism." The commission also noted that insult laws have a chilling effect, since "the fear of criminal sanctions necessarily discourages people from voicing their opinions on issues of public concern particularly when the legislation fails to distinguish between facts and value judgments."[186]
More recently, in Palamara Iribarne v. Chile (2005), the Inter-American Court of Human Rights held that "in the case of public officials, individuals who perform public services, politicians, and government institutions a different threshold of protection should be applied, which is not based on the specific individual, but on the fact that the activities or conduct of a certain individual is of public interest."[187]
The European Court of Human Rights has stressed that the protection of freedom of expression must extend not only to information or ideas that are widely accepted, but also to those that "offend, shock or disturb." [188] As the European Court noted in a case involving a politician accused of insulting the government of Spain, "Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society." [189]
In a joint declaration, the Special Rapporteurs on Freedom of Expression of the United Nations, the Organization for Security and Cooperation in Europe, and the Organization of American States recommended in 2000 that "laws which provide special protection for public figures, such as desacato laws, should be repealed." The experts also recommended that "the State, objects such as flags or symbols, government bodies, and public authorities of all kinds should be prevented from bringing defamation actions." [190]
International rights bodies also hold that defamation involving public officials should be decriminalized in the interest of promoting the vibrant public debate necessary to a democracy.[191] The Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights in 2000 assert that protection of the reputation of public officials should be guaranteed only by civil sanctions.[192] In other words, no one should go to prison for criticizing or offending a public servant. The Inter-American Court of Human Rights has held recently that the use of criminal proceedings for defamation must be limited to cases of "extreme gravity," as a "truly exceptional measure" where its "absolute necessity" has been demonstrated, and that in any such case the burden of proof must rest with the accuser.[193]
The Inter-American Commission on Human Rights' Declaration of Principles on Freedom of Expression also holds that for a court to establish defamation it must be proven that "in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news."[194]
Even while decriminalizing defamation is the more urgent task, excessive civil damages can also close down freedom of expression and should be prohibited. As the joint declaration of the UN, OSCE, and OAS experts stated, "civil sanctions for defamation should not be so large as to exert a chilling effect on freedom of expression and should be designed to restore the reputation harmed, not to compensate the plaintiff or to punish the defendant; in particular, pecuniary awards should be strictly proportionate to the actual harm caused and the law should prioritize the use of a range of non-pecuniary remedies."[195]
In his report covering the Americas for 2006, the Special Rapporteur on Freedom of Expression of the OAS concluded that "the continuous use of criminal trial proceedings against journalists for desacato and defamation demonstrates, in the great majority of cases, both State intolerance of criticism and the use of these to frustrate investigations of acts of corruption."[196]
Insult Provisions
Under Chávez, Venezuela has bucked the international trend to eliminate insult laws. Ever since its ground breaking report on insult laws was published in 1995, the Inter-American Commission on Human Rights has urged OAS member states to repeal these provisions from their criminal codes. Ten member states of the OAS, including Argentina, Chile, Peru, Paraguay, and Panama have now done so. [197]
Venezuela's Supreme Court, however has adopted a position contrary to this trend that openly defies international norms. In 2003, in response to an appeal against speech offense provisions of the criminal code filed by a human rights lawyer, its constitutional chamber ruled unanimously that Venezuela's insult provisions were constitutional. In refusing to align Venezuelan constitutional protection of freedom of expression with international standards it noted that the IACHR's recommendations were not binding on the state, and expressed the opinion that applying the norms set out by the IACHR could even endanger it and threaten its independence if implemented.[198]
Rather than eliminate Venezuela's insult laws, Chávez and his supporters enacted legislation in 2005 that increases the range of public officials who may resort to insult prosecutions when faced with unfavorable press. Before the legislature enacted reforms in March 2005, only the president, the vice-president, government ministers, state governors, mayors, and justices of the Supreme Court could initiate prosecutions for an insult. The reformed code added to the list members of the National Assembly, electoral council officials, the attorney general, the public prosecutor, the human rights ombudsman, the treasury inspector, and members of the military high command. [199] In fact, all top Venezuelan officials now enjoy enhanced legal protection against media criticism.
Because the crime of insult does not require that the speaker or writer accuse an official of specific actions but merely that he or she use language that subjectively "offends" or "disrespects" a public official, defendants in insult prosecutions cannot escape conviction by proving the truth of what they assert. Whether the assertion amounts to an insult and how serious it is are matters left entirely to the opinion of the court. The wording of the law ("offends by word or deed, or shows lack of respect in any other way")[200] is vague, broad, and subjective, making legal defense against a charge of this nature difficult. Journalists must choose their language carefully and conservatively to avoid offending the officials they write about.
The March 2005 reforms left unchanged a separate insult provision that penalizes insults directed not at officials but at institutions of state (an offense known as denigration [vilipendio]in Venezuela).Under this article, people held to have insulted the legislature, the Supreme Court, the cabinet, state legislative councils, or the higher courts can go to prison for up to 15 months.[201] The notion that a state institution can bring insult actions resulting in prison sentences is a dangerous interference with freedom of expression that could seriously hamper the press from serving its role as watchdog in a free society.[202]
All insult crimes in Venezuela carry prison sentences, and the higher the office, the greater the penalty. This reverses the democratic principle that public officials with greater public roles and responsibilities must be open and liable to greater degrees of criticism than ordinary citizens. Penalties range from a maximum sentence of 20 months in the case of justices of the Supreme Court, legislators, and the government officials listed above except for mayors, to 40 months in the case of the most serious offense against the president.
Defamation Provisions
Venezuelan law also contradicts international norms by establishing that prison sentences can be imposed on anyone who "imputes to somebody a specific act that may expose them to public disdain or hatred, or harm their honor or reputation."[203] Rather than eliminate these penalties, Chávez and his supporters in the legislature have increased them significantly.
While some governments in the region are considering legislation to decriminalize defamation in the case of public officials or persons in the public eye, Venezuela has once again moved in the opposite direction.[204] Amendments enacted in March 2005 increased the minimum penalty for defamation from three months of imprisonment to one year. The maximum was increased from thirty months to four years if the offense is committed "in a public document, in writing or drawings distributed or exposed to the public, or through other forms of publicity." In addition, the new article prescribes substantial fines not present in the previous law, ranging from 100 tax units to 2,000 tax units (US$2,145 to US$42,898, at current rates).[205]
It is also a form of defamation, injuria (roughly translated as "libel"), to "offend the honor, reputation and decorum of someone" without attributing to them a specific act.[206] Under the new legislation the minimum prison sentence for this offense rose from three days to six months, the maximum from three months to two years. Fines, which were previously insignificant, were increased from a minimum of 50 tax units to a maximum of 500 tax units (US$1,071 to US$10,710 at current rates).[207]
In addition, the reforms to the criminal code provide that the statute of limitations of one year that applies to defamation cases, and of six months in cases of injuria, may now be interrupted by "any action" of the plaintiff.[208] This makes it easier for the litigant to extend the period of investigation. A notable feature of defamation prosecutions in Venezuela is that many stay open in the courts without progress or conclusion for years on end. These lengthy proceedings can take a heavy toll on the professional and personal lives of journalists.[209]
Speech Offense Prosecutions
While these speech laws have not been enforced systematically, they are more than just a latent threat. As the following cases demonstrate, speech offense laws have been employed against journalists in a wide array of cases.
Napoleón Bravo
The prosecution of Napoleón Bravo for offending the honor of the Supreme Court exemplifies an insult prosecution that violates article 13 of the American Convention on Human Rights. In February 2006, at the request of the Supreme Court, the state prosecutor opened legal proceedings against José Ovidio Rodríguez Cuesta (a television celebrity known in Venezuela as Napoleón Bravo) for insulting the court.
The alleged offense occurred in September 2004 when Bravo's political program, "24 Hours," was covering the hunger strike of a sex abuse victim who was protesting the court's long delay in resolving her case. While the camera showed images of the protester, Bravo suggested, apparently with ironic intent, that the court served no purpose and should be made into a brothel. The then-chief justice asked the attorney general to open proceedings against Bravo. The prosecutor formally accused him of insulting the court's honor.[210]
Bravo was subjected to a two-year investigation followed by two years of proceedings in the Venezuelan courts. The case against him remains open today.[211]
Tulio Alvarez
A constitutional lawyer and academic, Tulio Alvarez was convicted of criminal defamation for publishing an article in which he cited an official report that he claimed implicated a congressman in financial mismanagement. He was convicted in February 2005 and given a suspended sentence of two years and three months imprisonment. (Under Venezuelan law, those sentenced to not more than five years in prison for a first offense may apply to a court for their prison sentence to be conditionally suspended.[212])
Alvarez's article, published in a May 2003 edition of the newspaper Así es la Notícia, suggested that a prominent congressman had used funds from the savings of National Assembly employees and former employees for other congressional purposes, leaving an unpaid debt to the employees' savings fund of 1,707,723,317 Bolívares (about US$792,000). Alvarez was representing the National Assembly employees' union in a legal case against the congressman, and had access to a report on the case issued by the superintendency of savings banks, a body attached to the Ministry of Finance.
In December 2003, the congressman filed a complaint against Alvarez for defamation. A year later, the court barred Alvarez from leaving the country as a "precautionary measure" to prevent him escaping justice. In February 2005, the court convicted Alvarez and sentenced him to two years and three months in prison, suspended.[213] The court found that Alvarez had defamed the congressman by insinuating his guilt because the report he citedonly established that the moneyowed to the savings bank had not been paid, and not that the congressman was guilty of malfeasance.[214]
Julio Balza
Julio Balza, a veteran journalist who writes a weekly column for the opposition newspaper El Nuevo País, has faced four defamation prosecutions since 2004 for his criticism of public officials.
In July 2006 Balza was given a suspended prison sentence of two years and eleven months and fined about US$12,500 for calling a government minister "imprudent, mendacious, negligent and incompetent" after the viaduct linking Caracas's Maiquetía airport with the capital was taken out of service in March 2006 due to risk of its collapse.[215] The minister had headed long and unsuccessful efforts to reinforce the structure, which Balza had criticized in the paper. The Caracas Appeals Court confirmed the sentence in December 2006, and in April 2007 the Supreme Court declared a final appeal inadmissible.[216] In this case the three impugned articles made no specific accusations but simply expressed a strongly worded opinion about the minister's competence.
In previous years, Julio Balza had been accused three times of defamation by officials of the Maiquetía airport authority for accusing them of corruption. Two of the cases were settled out of court. In one case, Balza agreed to publish three successive articles apologizing for the harm caused to the institution, and to write to its director promising not to attack the airport's honor and reputation in the future.[217]
Henry Crespo and Miguel Salazar
In May 2006, a Caracas court sentenced journalist Henry Crespo, a columnist for Las Verdades de Miguel-a periodical with a long record of investigating corruption cases and political intrigue-to an 18-month suspended jail term for defaming the governor of GuArico state.
Las Verdades de Miguel had run a series of reports on a congressional investigation into financial irregularities involving four projects undertaken by the Gúarico state government.[218] The court considered that a comment cited by Crespo that the governor's actions were a "compendium of the criminal code" was defamatory, as were other articles Crespo wrote in Las Verdades de Miguel denouncing corruption in government projects.[219]
The governor and two close political associates also filed a defamation action against the magazine's editor, Miguel Salazar, for publishing articles about alleged corruption and accusing the governor of hiring someone to kill him. Salazar's trial began in April 2007 and continued as of this writing.
Francisco Usón
The only person convicted of a speech offense in recent years who has served prison time was not a journalist but rather a retired military officer who was prosecuted under the military criminal code for a comment he made on a television talk show.
Gen. (Rtd.) Francisco Usón, an outspoken critic of the ChAvez government, was sentenced by a military court in November 2004 to five years and six months in prison for "insulting the armed forces."[220]
Usón was convicted for comments he made in April 2004 as a guest on Televen's television show "La Entrevista" ("The Interview"), hosted by opposition journalist Marta Colomina.
Part of the interview concerned events in the Mara Fort (Fuerte Mara) in February 2004, when eight soldiers being held in a punishment cell were severely burned. Two of them later died of their injuries. The soldiers' deaths caused an outcry in the opposition press. A day before the program was aired, a prominent critic of the government, Patricia Poleo, had published an article alleging that the fire had been caused by a flamethrower. Interviewing Poleo and Usón, the program's host, Marta Colomina, asked Usón for a technical opinion on the use of a flamethrower. He said that to use it a mixture of gasoline and napalm had to be prepared beforehand, implying that if a flamethrower had been used such an action would have been premeditated. "If that turns out to be true, it would be very, very serious," he said.[221]
Although he had retired from the army a year before the interview, Usón was charged under an article of the military criminal code that punishes anyone who "insults, offends or disparages the armed forces."[222] In November 2004 a military court convicted Usón in a rapid trial that was closed to the public. Over the next few months, both a Martial Court and the Supreme Court rejected Usón's appeals against the sentence.[223] Usón was released on parole in December 2007.
Marianella Salazar
In some cases, prosecutors investigating alleged abuses or cases of corruption reported by journalists subsequently level charges at the journalists, even though the officials accused in their articles did not sue for defamation.
Such was the case with Marianella Salazar, who faces criminal charges of maliciously accusing a public official (slander, calumnia)more than four years after the publication of the article in dispute. In Venezuela, to engage in malicious accusation (calumnia) is to accuse someone of a crime in the presence of a judicial authority knowing the accusation to be false.[224]
The article, published in the newspaper El Nacional in June 2003, was about an allegation that two government ministers were involved in a plan to acquire electronic spying equipment from a European defense agency. The article described an alleged dispute between them over lucrative commissions expected from the deal.[225] In accordance with a procedure laid down in the law, the two ministers asked the public prosecutor to investigate the allegations made by Salazar in order to clear their names, but did not sue her for defamation.[226] After interrogating Salazar and two men named in the article, the prosecutor concluded that the author had been unable to supply proof and that her allegations were unfounded.
Subsequently, the prosecutor accused Salazar of calumnia because she had shown him, in the course of his investigation, an article by a third party that had corroborated her story.[227] The case brought by the prosecutor against Salazar was still open at this writing, although the prosecutor's accusation presents no evidence to support the notion that Salazar knew the information to be untrue.[228]
Ibéyise Pacheco
In October 2004 another prosecutor opened criminal proceedings against an investigative journalist after examining allegations she made against several government officials and finding them to be without substance. The prosecution again originated in an investigation requested by government ministers in reaction to allegations, in this case published by opposition columnist Ibéyise Pacheco in the newspaper El Nacional.[229]
Like Salazar, Pacheco was prosecuted not for these allegations but for evidence she submitted to the prosecutor in the course of his investigation, in her case for perjury. The investigation was eventually annulled on due process grounds.[230]
In a May 2003 article entitled "Between Delinquents," featured in El Nacional,Pacheco published an alleged conversation between Hugo ChAvez, Vice-President José Vicente Rangel, other officials, pro-government legislators, and military officers that supposedly took place in Miraflores (the presidential palace) the previous February, two months before the short-lived coup. Among the plans allegedly approved was one to kidnap union leader Carlos Ortega and blame the crime on an extreme left-wing Chavista group, another to intimidate the press, and another to organize fake terrorist attacks and assassinate opposition figures.[231]
After interviewing all the alleged participants in the conversation, the prosecutor concluded that it was fictitious, and closed the investigation. The prosecutor then concluded that Pacheco had lied during the investigation about the transcription of an alleged tape recording on which the article was based.[232] Based on a discrepancy between her version and the evidence of a fellow journalist, the prosecutor opened proceedings against Pacheco for perjury that lasted for two-and-a-half years.[233]
Her lawyers filed an appeal to the Supreme Court alleging that Pacheco's rights to due process had been violated. They argued that she had been charged without having legal representation and being given an opportunity to defend herself, in violation of Venezuelan law.[234]
Finally, in April 2006, the Supreme Court's Cassation Chamber granted the appeal and annulled the trial, finding that the prosecutor had failed to ensure that Pacheco was legally represented at the hearing at which she was charged, and moreover had denied her the right to be heard.[235]
Luz Mely Reyes
Most of the journalists who have faced legal action for their reporting have been outspoken ChAvez opponents, or have worked for strongly antigovernment media. However, investigative reporters working for pro-government media have not been immune from legal intimidation by government officials. In March 2007, Luz Mely Reyes, an investigative reporter for the generally pro-government tabloid Últimas Noticias, received a letter from a cabinet minister threatening to have her prosecuted for conspiracy for a series of reports alleging irregularities in a major government development project.
On March 11, 2007, Reyes published the first of a series of weekly articles in the newspaperdescribing how contracts for government development projects had been traded in exchange for million-dollar commissions, with an estimated loss to the state of about US$117 million.[236] The projects were part of a joint development plan with Iran to install corn and milk production facilities in different parts of Venezuela. Execution of the plan was entrusted in March 2006 to the Ministry of Communal Economy, and was supposed to take six months. However, by the time the articles appeared none of the projects were operational and widespread management irregularities had been detected. At the center of the controversy were various successive communal economy ministers.
On March 18 during a "Hello President" transmission from the state of Barinas, ChAvez complained about a reference to Iran in the title of one of the articles, accusing the paper of being manipulated by powerful groups in the country, which he did not identify.[237]
Reyes and the paper's director, Eleazar Díaz Rangel, later received a letter from the communal economy minister, threatening both of them with prosecution for criminal conspiracy under a provision of the criminal code that punishes those who "conspire or rebel in order to violently change the Constitution of the Bolivarian Republic of Venezuela."[238] This grave political crime carries a prison sentence of up to 24 years. The minister expressed concern that the article could be part of a "campaign destined to encourage disloyal competition or simply cause economic damage to people, enterprises and institutions."[239]
Although the Attorney General's Office never took up the case, the minister's threatening letter was itself problematic, since threats by officials of legal action in response to publications can lead to media self-censorship and hence indirectly limit freedom of expression.
Laureano MArquez and Teodoro Petkoff
In February 2007, a court specializing in child welfare cases fined author Laureano MArquez for publishing a letter to ChAvez's nine-year-old daughter Rosinés, satirizing ChAvez's authoritarian style of government, which appeared on the cover of the newspaper Tal Cual on November 25, 2005. The newspaper's director, Teodoro Petkoff, was also fined. The fines totaled nearly US$50,000.
The imaginary letter asked ChAvez's daughter to persuade her father to soften his attacks on his political opponents.[240] A child welfare judge ruled that it violated the child's right to honor, reputation, and privacy, which are protected under the Organic Law for the Protection of Children and Adolescents (LOPNA) as well as Venezuela's law approving the United Nations Convention on the Rights of the Child.[241]
But more was at stake than the child's privacy. The court found that the article "incited disrespect for symbols of the nation and for her father, since, regardless of the office he holds, he deserves his children's respect, and a medium of communication should not encourage a young girl to despise her father, or involve a girl in political argument concerning the post that he holds, nor does the girl need to have direct knowledge of the political objections of the citizens…."[242] The judge concluded that the child's rights to honor, peer-group relations, family life, and social development had been gravely affected.
In the newspaper's defense Petkoff claimed that it was ChAvez himself who had made his daughter into a public figure by mentioning her repeatedly in his speeches. A few days before the article appeared, ChAvez had suggested in his "Hello President" broadcast that the national coat of arms should be changed because his daughter had pointed out that the white horse on the emblem was looking the wrong way, an event which in fact came to pass.[243]
Article 65 of the LOPNA protects children's "right to honor, reputation, self image, private life, and family privacy, which may not be subject to arbitrary and illegal interference."[244] While the judge found that the article had "seriously compromised" these rights, she did not explain how she reached this conclusion. According to her finding, "there is no report to determine how her rights were damaged, what were the disturbances in her family life, what was the harm caused, but we know that it is so, since we have all been children…." The judge added, "it is also evident, and follows from the [president's] speeches on 'Hello President' that neither the father, nor the child herself, agrees with the publication."[245]
The judge was referring to remarks by ChAvez in his weekly broadcast two days after the publication of the Tal Cual article. ChAvez had criticized the writer's reference to his daughter, describing her reaction to the article with pride: "She said to me: 'Papi, it's a lack of respect for the coat-of-arms.' She didn't complain about herself, but about the coat-of-arms, you see? How fantastic children are! How fantastic children are to teach a lesson to those animals infesting the sewers!"[246] The prosecution of Tal Cual seemed to follow the cue of the president's objections.
Regulating Media Content
In December 2004, the Law on Social Responsibility in Radio and Television ("Social Responsibility Law"), a comprehensive statute that regulates television and radio content, came into force. The new law, which replaced broadcasting regulations enacted in 1984, contained detailed regulations to protect minors from exposure to unsuitable content, established programming obligations in order to promote Venezuelan music and national producers, and allowed audience groups to participate in broadcasting regulation. The law also expanded the scope of an already broad prohibition on incitement and established severe penalties for broadcasters that violated it.
The broad and imprecise wording of the new incitement provisions, the severity of the penalties, and the fact that the law is enforced by a body dependent on the executive branch all increase the broadcast media's vulnerability to arbitrary interference and pressure to engage in self-censorship.[247]
International Norms
It is generally recognized that incitement to violence may legitimately be subject to legal sanctions on public order grounds. But the power to prohibit such speech is not unlimited. Because of the importance of allowing a full and free public debate, the government must only impose restrictions on grounds of incitement where there is a direct relation between the speech in question and a specific criminal act. The International Criminal Tribunal for Rwanda, for example, held that the "direct" element of incitement implies that the incitement "assume a direct form and specifically provoke another to engage in a criminal act," and that "more than mere vague or indirect suggestion goes to constitute direct incitement....The prosecution must prove a definite causation between the act characterized as incitement ... and a specific offense."[248]
In Incal v. Turkey, the European Court of Human Rights ruled that Turkey had violated the European Convention on Human Rights by sentencing a Turkish national to prison because he had written a propaganda leaflet that, according to the government, incited hatred and hostility through racist words and advocated illegal forms of protest. The court agreed that the leaflet included a number of "virulent" criticisms of the government's policies towards the Kurdish minority, and called on Kurdish citizens to "oppose" these policies by forming "neighborhood committees." The court concluded, however, that these appeals could not be taken as incitement to the use of violence, hostility, or hatred between citizens. It also considered that a prison sentence was "disproportionate to the aim pursued and therefore unnecessary in a democratic society."[249]
As these judgments illustrate, governments are required to tread with care to avoid endangering freedom of expression in efforts to prevent violence or the disruption of public order. Moreover, because the crucial link between speech and action must be demonstrated by interpretation and argument, it is essential that the procedures under which cases are examined are transparent and impartial.
Incitement Provisions
The Social Responsibility Law, which applies to all television and radio broadcasters except international cable channels, contains broad and imprecise provisions on incitement whose infringement can lead to a channel having its broadcasting license suspended or revoked.
According to article 29 of the law, stations which transmit messages that "promote, defend or incite war,… disturbance of public order,… crime…, or are a threat to national security" may have their license suspended for 72 hours or revoked for up to five years on a second offense.[250] In addition, once an investigation under article 29 is underway, the law permits the government telecommunications commission, CONATEL, to censor the broadcaster's messages if they are considered to violate the article's provisions.[251]
The Social Responsibility Law was intended to modernize broadcasting regulations which date from 1984, but the overly vague incitement provisions of those regulations were retained and expanded.[252] Whereas the 1984 regulations referred only to "incitement,"[253] article 29 of the new law also makes it an offense to "promote" (promover) or "defend" (hacer apologia) disturbances, crimes, or threats to national security. Under the new law, broadcasters can be sanctioned for commentary that appears to justify actions that already occurred.
The lack of clear language limiting the application of these terms increases the possibility of arbitrary application, and also offends the principle that laws must be of sufficient certainty and legal precision that people are able to regulate their conduct to avoid infringement. This principle of legality is infringed where it would be particularly difficult to distinguish between the circumstances in which a message would be considered as public "promotion" or "defense" of an act of public disorder and those in which it would represent the legitimate exercise of the right to express an opinion.[254]
The Social Responsibility Law also greatly increased penalties for infractions. Under the 1984 broadcasting regulations fines had become trifling, not exceeding 4,000 Bolívares (a little over US$2.00 in 2004).[255] Channels or stations that violate the regulations to protect children now face fines of up to 2 percent of their income in the previous tax year. Whereas in the 1984 broadcasting regulations, incitement of rebellion was subject to a fine or suspension, in the Social Responsibility Law, incitement is punishable by suspension on a first offense.
Dangers of Broad and Imprecise Wording
This latitude in the current provisions is particularly troubling given the penchant of ChAvez and government officials to categorize dissent as subversion, treason, or incitement of violence. They often describe protests as a cover for destabilizing action and as being manipulated by the "oligarchy," "fascists," or the "imperial power." ChAvez, for example, referred to the largely peaceful student protests against the non-renewal of RCTV's broadcasting license in 2007 as a "soft coup" (golpe blando).[256]
Similarly, the current communication and information minister referred to the boycott of the 2005 congressional elections as "a new coup d'état" and as being "contrary to democracy."[257] While electoral abstention may be harmful if its effect is to weaken democratic checks and balances, it is also an exercise of the right to engage in peaceful protest. To describe it as tantamount to a coup is at best misleading and inaccurate and worst another threat against non-violent expression, especially given that neither participation in elections nor voting are obligatory in Venezuela. Vice-President José Vicente Rangel even described opposition candidate Manuel Rosales's suggestion that the election be postponed as being "in the same line as the April 12 coup."[258]
Following the government's logic, any radio or TV broadcasts deemed to have incited, promoted, or merely defended participation in the protests, the electoral abstention, or the postponement of elections could be accused of violating the Social Responsibility Law, and the broadcaster would be liable to suspension or ultimately revocation of its license for five years.
Lack of an Independent Regulatory Body
The bodies responsible for investigating and sanctioning infractions under the Social Responsibility Law do not enjoy sufficient guarantees of independence to protect them from political interference. The decision to open an investigation and the application of sanctions for infractions of broadcasting laws are the responsibility of the National Telecommunications Commission (CONATEL), a body attached to the Ministry of Communication and Information. CONATEL also decides on the application of preventive measures, which as noted can include prohibiting transmissions.[259] While defined in law as an autonomous body, CONATEL's four-person board of directors and its director general are all appointed by the president of Venezuela and can be dismissed at his discretion.[260]
The government also has a majority on the Directorate of Social Responsibility, the body created under the Social Responsibility Law to analyze infractions and impose sanctions. The directorate is headed by CONATEL's director general, and includes six officials selected by ministries and state institutions, two representatives of audience groups organized by CONATEL, a university representative, and a church representative.[261]
The danger of overbroad interpretation of the vague incitement provisions could be limited if the enforcement body were independent from the executive branch and staffed by professionals who have suitable qualifications, serve fixed terms of office, and enjoy security of tenure while in office. While the directorate includes members from different sectors of society, the law does not state the criteria required for appointment to the directorate or the period of office of its members, and it does not protect them from arbitrary or politically motivated dismissal.
Government Use of Incitement Provisions
To Human Rights Watch's knowledge, CONATEL has not at this writing imposed any sanction under article 29 of the Social Responsibility Law.[262] Yet officials have repeatedly invoked these provisions in warnings issued to television stations at moments of political tension, and in circumstances in which their application would have been unjustified and hence an arbitrary interference in freedom of expression.
Coverage of Anti-Crime Protests
In April 2006, for example, CONATEL's director general invoked the incitement provision of the Social Responsibility Law in response to private stations' coverage of street protests sparked by a violent crime. In letters to the directors of Globovisión and RCTV, the official warned them against inciting breaches of public security and crime and reminding them that the station could be punished for failing to comply. The provisions of article 29 of the Social Responsibility Law were underscored in the letters.[263] Globovisión and RCTV had been covering the discovery of the bodies of three teenage brothers and their driver who had been kidnapped for ransom and ultimately executed. The shocking murders sparked street protests-extensively covered by the two channels-against the government's failure to tackle the problem of rising violent crime.
These brutal murders and the protests they sparked were clearly matters of public interest, and therefore legitimately the subject of extensive coverage. The government was not justified in invoking the incitement provisions as a lever to persuade the channels to change their editorial decisions, whether or not they believed the channels had political motives in making such decisions.
Coverage of RCTV Case
Government officials also invoked the incitement provisions in response to media coverage of RCTV's removal from the public airwaves after its license expired. When this event sparked large student demonstrations across Venezuela, the Directorate of Social Responsibility warned about transmitting messages that incite hatred and lawbreaking, and announced that it was, in permanent session, monitoring media coverage of the protests.[264]
The government objected specifically to the media's presence at a press conference that the Inter American Press Association (IAPA) held in Caracas. The Ministry of Communication and Information's delegate on the directorate claimed that an IAPA statement read at the conference invited Venezuelans not to recognize the government's decision not to renew RCTV's broadcasting concession.[265] She said that the IAPA's declarations violated the Social Responsibility Law and called on the channels not to broadcast them. The official warned the audiovisual media that they could face a 72-hour shutdown if they disseminated messages "promoting discrimination or inciting war."[266]
The accusation that IAPA had incited disobedience of the law was unfounded. The IAPA press release described the RCTV decision as an "abuse of power" and called the Venezuelan government "undemocratic" for declining to renew RCTV's license.[267] While the press release might have encouraged some people to discuss the issue or express comparable views, it could not have "incited" illegal acts preventing the decision from taking effect because only the government or the courts could have prevented its implementation. In any case, the media had a right to report on what the press association said at its press conference, whether or not it was critical of the decision and the government.
Coverage of Electoral Boycott
In December 2005, CONATEL invoked the Social Responsibility Law's incitement provisions in response to media coverage of the campaign leading up to the congressional elections of that month, during which the main opposition parties announced they were pulling out and called on voters to boycott the vote. The government was concerned that the private media were themselves encouraging the election boycott. Top government officials including ChAvez and Vice-President José Vicente Rangel accused opposition parties advocating abstention of fomenting an "electoral coup", instigated by the United States embassy.[268] ChAvez, on a national broadcast, warned RCTV and Globovisión that "the permissive ChAvez was buried in 2002" and he would not allow further calls for "destabilization."[269]
Within hours of ChAvez's national address, CONATEL summoned media directors to a meeting to discuss coverage of the National Assembly elections after opposition candidates announced that they were withdrawing from the race in protest at alleged electoral irregularities. A CONATEL official who was present at the meeting told the press afterwards that he had merely "refreshed" the managers' memories about their legal responsibilities.[270] But more specifically, according to Venevisión's vice-president, the directors were urged to make sure their coverage did not incite crime, attack national security, or call for war-the three offenses listed in article 29 of the Social Responsibility Law.[271]
CONATEL official told Human Rights Watch there was no reason to be concerned about what took place. "The meeting was to evaluate with [the directors] how to interpret the norms in force and to request their cooperation. It was just a preventive measure, and there were no problems afterwards."[272] However, what was troubling about the meeting was that the central issue was the channels' coverage of abstention calls made by the opposition candidates. While the electoral boycott was controversial, opposition calls for abstention and opposition demonstrations challenging the electoral process were clearly matters of public interest. Covering the abstention campaign was a legitimate activity and cannot be said to have constituted incitement to crime or violence or a threat to national security.
Other Incidents of Threatened Action against Broadcasters
In addition to threatening sanctions under the Social Responsibility Law, the government has pressed for criminal investigations against Globovisión on highly dubious allegations.
In May 2007, at the request of the communication and information minister, the attorney general launched an investigation to establish whether Globovisión had transmitted messages inciting Venezuelans to assassinate ChAvez. The minister said he believed the station had urged the president's assassination by transmitting a news archive clip of the gun attack on Pope John Paul II with an accompanying soundtrack of a song by salsa star Rubén Blades.[273]The communication and information minister sent the complaint to the attorney general, insisting that communications experts who had analyzed the clip concluded that it contained a subliminal message inciting violence against the president.[274]
The clip in question was transmitted by Globovisión as part of the political comment program "Hello Citizen," during an interview with RCTV's president, after RCTV's license renewal had been refused. During commercial breaks the station was airing clips from RCTV's 53-year history covering world events, including the sequence of the gun attack on the pope. The soundtrack from the Blades song "Have Faith," contained the words "Have Faith, it's Not Over Yet!" (Tengan fe, que esto no se acaba aquí) and had already been transmitted several times that week on the program. There is nothing to suggest that the lyrics are about anything other than hope and perseverance, and Globovisión, in fact, claimed that its commentators had urged participants not to resort to violence.[275] Although the attorney general began an investigation into the minister's complaints, and technicians who worked on "Hello Citizen" gave evidence as witnesses, nothing was heard of the investigation afterwards.[276]
In another case in October 2007, the interior and justice minister asked the attorney general to investigate an amateur video aired by Globovisión that showed a robbery in progress on a main road in Caracas.[277] The minister accused the station of engaging in a psychological campaign to generate anxiety and fear in the population, and said he suspected that the video has been "prepared" to attack the government's anti-crime record. The beginning of the investigation was widely reported in the press, but it too was discontinued.[278]
Restricting Information
ChAvez's professed commitment to broadening popular participation in the political process has led neither to greater openness and transparency in government nor to easier public access to information held by government officials. Journalists and the public often experience difficulty in gaining access to what should be public information, and there is no legislation to provide effective redress in such circumstances.
International Norms
The right to "seek, receive, and impart" information is recognized in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the American Convention on Human Rights.[279]
There is growing international recognition that the right to seek, receive, and impart information encompasses a positive obligation of states to provide access to official information in a timely and complete manner. Both regional and international organizations have held that the right of access to official information is a fundamental right of every individual.[280] In the Americas, the Inter-American Court on Human Rights has held that article 13 of the ACHR (on the right to freedom of expression) entails the right to receive information held by government offices, as well as these offices' obligation to provide it.[281] Moreover, it is internationally recognized that this right is crucial to ensure democratic control of public entities and to promote accountability within the government.[282]
The right of access to information is governed by the "principle of maximum disclosure," meaning the government is presumed to be under an obligation to disclose information.[283] This presumption can only be overridden under circumstances clearly defined by law in which the release of information could undermine the rights of others or the protection of national security, public order, or public health or morals.[284]
Access to Information under Venezuelan Law
Venezuela's 1999 Constitution guarantees the right of access to government files and records, "without prejudice to the limits acceptable in a democratic society concerning interior and external security, criminal investigation, and the intimacy of private life, in accordance with the law regulating the classification of documents whose contents are confidential or secret."[285] The constitution also guarantees the right to "timely and truthful" information about official procedures affecting individuals directly, and access to any official resolutions adopted. And it establishes that "no censorship by public officials affecting the provision of information on matters under their responsibility will be permitted."[286]
In furtherance of the right to information, the 2001 Organic Law of Public Administration establishes that anyone can submit a written request to a state entity for a specified document and has a right to receive a copy at his or her own expense.[287]By default, all requests or petitions directed to an administrative authority, whatever their nature, must receive a reply within 20 days.[288] Officials who do not reply face a possible fine of between 5 and 50 percent of their monthly salary.[289]
Even though the obligation to provide information exists in law, there is no law that specifies the circumstances in which access to public documents may be denied. Nor is there any enforcement mechanism to address situations where officials fail to respond satisfactorily to requests for information. Officials at the Ministry of Communication and Information told Human Rights Watch that Andrés Izarra, during his first term as minister, presented a draft bill to the National Assembly to strengthen access to information that was discussed in the Assembly's sub-committee on media.[290] Human Rights Watch was unable to confirm this information, but to our knowledge no such bill has been discussed on the floor of the National Assembly.
The Venezuelan section of Transparency International presented its own bill in 2007 to the president of the National Assembly's sub-committee on media. As of July 2007 the organization had been unable to get the endorsement of three legislators, the minimum required for introducing a draft law for consideration.[291] In June 2008 the president of the sub-committee said that the sub-committee had "other priorities" and claimed that progress on the law had been held up by the attempts of some journalists to politicize the issue.[292]
Failure to Respect the Right of Access to Information
Government officials routinely deny or fail to respond to requests for information by journalists. According to an investigation by Últimas Noticias, a generally pro-government newspaper, journalists have encountered obstacles in obtaining information from the police on crime statistics, judges and court officials, hospitals, state enterprises such as PDVSA, the comptroller general's office, and various ministries.[293]
According to a log publicized by the newspaper El Mundo, only 37.5 percent of the officials responded to requests for official information made by its investigative reporters in 2007. The average wait for a reply was 38 days, almost twice the legal maximum. For example, a reporter approached the Ministry of Planning and Development to get information about the salaries of public employees. It took seven months, three letters, and a change of vice-minister before a reply was received.[294] Similarly, it proved impossible to obtain information from the civil register (ONIDEX) on the number of Venezuelans who had left the country since 1997.[295]
For NGOs, obtaining official information can be even more difficult. In a study conducted by the human rights NGO Espacio Público, 46 requests for information were made to the same number of government ministries and departments in 2007. The requests were for information about salaries, advertising expenditure, and a copy of the bill on access to information supposedly in the National Assembly. Only 4 percent of the requests received a positive reply. Eight-seven percent were rejected or not answered.[296]
In the absence of an enforcement mechanism, neither journalists nor NGO representatives have any means of compelling officials to disclose the information that is withheld.
Controlling the Airwaves
The government has misused its control of broadcasting frequencies to discriminate against channels that are political opponents. In the most prominent and egregious case, ChAvez gave orders not to renew the concession of Venezuela's oldest television channel, Radio Caracas Television (RCTV), because it refused to tone down its hostile editorial stance.
International Norms
Evolving norms in international law have strengthened the obligation of governments to promote pluralism in broadcasting. In 2001, in a joint declaration, the special rapporteurs on freedom of expression for the United Nations, the OAS, and the OSCE, determined that:
Promoting diversity should be a primary goal of broadcast regulation; diversity implies gender equity within broadcasting, as well as equal opportunity for all sections of society to access the airwaves; broadcast regulators and governing bodies should be so constituted as to protect them against political and commercial interference.[297]
The special rapporteurs issued a further declaration in 2007 stressing that media regulation to promote diversity must be protected from political interference:
Regulation of the media to promote diversity, including governance of public media, is legitimate only if it is undertaken by a body which is protected against political or other forms of unwarranted interference, in accordance with international human rights standards.[298]
Moreover, regional human rights norms on free expression do not allow states to use their control of radio-electrical frequencies to "impede the communication and circulation of ideas and opinions."[299] Nor may they use such control to "put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express."[300]
To safeguard against bias, political favoritism, and corruption, the procedures for granting or refusing broadcasting licenses should be open, impartial, and transparent. As the Inter-American Commission on Human Rights pointed out in a press release on the RCTV case:
[I]n competitions for or in the awarding of licenses for the use of wave bands, in accordance with the principle of equality of opportunity, states must promote open, independent and transparent procedures with clear, objective and reasonable criteria that avoid any political discrimination on the basis of the editorial line of a media outlet.[301]
Political Use of Discretionary Powers
Venezuelan law bestows the power to award radio and television concessions on the communication and information minister following prior technical evaluations carried out by CONATEL.[302] Although CONATEL is technically an autonomous agency, its four directors, like the communication and information minister, are all appointed by the president of the republic and can be dismissed at his discretion. There are no institutional controls to ensure that such decisions are based on an impartial consideration of the public interest rather than the government's political objectives.
In the case of free-to-air radio and television, concessions are decided on an individual basis, rather than through a competitive bidding process or lottery, as is the practice for other users of the airwaves. This means that the minister-and, by extension, the president-has full discretion to accept or reject applications. The absence of clear criteria for awarding concessions and the lack of impartial regulation of the process open the door to politically motivated and discriminatory decisions.
RCTV
In December 2006, ChAvez announced on a nationwide broadcast that he would not renew the broadcasting license of RCTV, Venezuela's oldest and one of its most popular television stations. Filmed standing on a military parade ground, he said that Venezuela would no longer tolerate private media "at the service of coup-plotting, against the people, against the nation, against the independence of the nation, and against the dignity of the Republic!"[303]
ChAvez had repeatedly threatened not to renew the broadcasting concessions of the country's main private television channels in response to critical coverage of his government. While he pointed to the channels' role in the 2002 coup as a justification, he also made clear that the threatened action would be in response to the continuously critical coverage of some of the channels.[304]
In March 2007, three months after ChAvez announced his decision, the Ministry of Communication and Information published The White Book of RCTV (El libro blanco sobre RCTV), a compendium of the government's accusations against the channel. During the same month RCTV received a resolution and cover letter from the communication and information minister-the official responsible for television concessions-formalizing ChAvez's decision. Yet neither the official resolution nor the letter mentioned any of the accusations publicly leveled by ChAvez against the channel as grounds for the decision not to renew the license. After the Supreme Court rejected RCTV's legal appeals for an injunction, the channel stopped broadcasting on public airwaves on May 27, 2007.
While the ChAvez government was under no obligation to renew RCTV's concession, it improperly used its regulatory power to punish anti-ChAvez programming, discriminating against RCTV on political grounds and disregarding due process considerations.
A Discriminatory Decision
As noted, one of the principle justifications that ChAvez and his supporters offered for denying RCTV a concession renewal was its role during the 2002 coup. Ever since the events of April 2002-which he accused the media of fomenting-ChAvez had threatened the four largest private channels (RCTV, Venevisión, Televen, and Globovisión) with revocation of their broadcasting licenses. From June 2002 until he made the announcement in December 2006, ChAvez had made such threats on at least eight occasions in public broadcasts or interviews.[305] On the last of these occasions, in November 2006, ChAvez warned that some of the licenses were due to expire the following year. "No one should be surprised if on March 27 [sic] I tell them their license is up."[306]
Two private stations' licenses were in fact due to expire on May 27, 2007-RCTV's and Venevisión's. But in his December 2006 speech ChAvez made no mention of Venevisión-a channel he had accused with equal vehemence for its conduct during the coup-and its license was duly renewed for five years on its expiry.
If the non-renewal of RCTV's license was indeed a belated sanction for the channel's conduct during the coup, Venevisión should have received the same treatment. But after ChAvez's victory in the recall referendum in August 2004, Venevisión (along with Televen) pulled its adversarial political opinion shows and drastically reduced its coverage of opposition news.[307] In contrast, RCTV (along with Globovisión) continued to cover protests extensively and broadcast comment that was uniformly critical of the government.[308]
RCTV was singled out evidently because of its refusal to tone down this criticism. In fact, in June 2006, six months before ChAvez announced his decision, he himself pointedly compared the conduct of some stations, in an apparent reference to RCTV and Venevisión. At a televised ceremony handing over Russian rifles to the army, ChAvez ordered his ministers and CONATEL's director general to review private television concessions, placing a question mark over their renewal the following year. After complaining that some channels still acted like "fifth columns," he noted that other channels that he accused of supporting the coup had "given signs of wanting to change, and look like they intend to respect the Constitution and the law."[309] The communication and information minister went further:
If we analyze the conduct of some channels that were openly in the coup and we compare it with today, there are qualitative changes: in programming, in reporting, in editorial line, in respecting the rights of users and fulfilling the obligations of public service providers. In other cases, there is no sign of any rectification and they stubbornly stick to their old ways."[310]
Neither ChAvez nor the minister mentioned the channels they were referring to, but it was widely understood that the government's sights were on RCTV.
The discriminatory use of the government's regulatory authority was also made clear by the fact that ChAvez had issued his threats of non-renewal in response to critical coverage of his government. For example, the last such threat he made before announcing his decision on RCTV was during a televised address just weeks before the 2006 presidential election in which he denounced private stations for broadcasting a clandestine video of his energy minister calling on employees in the state oil company to abandon their jobs if they did not support ChAvez.
Lack of Due Process
As already noted, in March 2007, at the height of the controversy over RCTV, the Ministry of Communication and Information published the White Book on RCTV, a 360-page compendium of alleged malfeasance by the station. The documented cited several actions of RCTV as evidence of its involvement in the coup: its coverage of the street demonstrations which precipitated the coup; its splitting its screen during a presidential broadcast in order to continue showing scenes of the protests; repeated transmissions of speeches and comments by opposition leaders blaming the government for the violence; its refusal to transmit news of ChAvez's illegal arrest by the coup plotters; and its blacking out coverage of pro-ChAvez demonstrations as the coup unraveled.[311] Yet none of these actions were formally investigated in an administrative or judicial hearing, and RCTV was not given an opportunity to defend its record.
The White Book also charged RCTV with monopolistic practices, incitement to violence, non-compliance with standards protecting children, and tax evasion. Yet the book did not show that any of these allegations had been proven, either in court or in an administrative investigation by the broadcasting authorities.[312]
TVES: Democratization or Damage Control?
In March 2007, after an international outcry about ChAvez's announcement, Communication and Information Minister Jesse Chacón, sought to recast ChAvez's decision. In a resolution notifying the station of the expiry of its concession, Chacón presented the matter as a purely technical issue without any reference to the accusations. The government, Chacón stated, had "a peremptory need for…an open access television network with national range, like that which will become available when RCTV's concession expires."[313] In a cover letter to the station's legal representatives, Chacón insisted that that "the expiry of a term is not a punishment," and that due process guarantees were not applicable to the case.[314]
If the government's reason for not renewing RCTV's license had been, as Chacón claimed, to free up the frequency for a use that was in the public interest, the non-renewal would seem to be far more justifiable. However, the government appears to have had no such plans when ChAvez announced his decision in December 2006.[315] For several months after his announcement the actual proposals for RCTV's replacement were extremely vague, even though the law requires that the potential grantee of a concession provide CONATEL with detailed proposals and technical plans, and even though their evaluation is normally a lengthy process. Not until mid-May 2007-two weeks before the new station was due to go on air for the first time-was the creation of the station, Venezuelan Social Television (Televisora Venezolana Social, TVES) officially announced.
Moreover, the government never explained satisfactorily why it did not use frequencies that were already at its disposal to create a new station. Chacón claimed that the VHF frequency used by RCTV was the best available for the purpose of creating a national network, and that other VHF frequencies were not practicable.[316] However, at the time the government had 26 unused VHF frequencies that could have provided coverage similar to the RCTV concession.[317] Failing that, the government could have used UHF as an alternative, as it did successfully when it launched Vive TV in 2003.[318]
The government's improvised response to the future vacancy of the RCTV frequency was also apparent in its lack of technical preparation. CONATEL had not secured the technological capacity to transmit TVES's signal throughout Venezuela's territory before the expiry of RCTV's concession. According to Jesse Chacón, at the time of the hand-over TVES only had three transmitters functioning, two in Caracas and one in Maracaibo.[319] The government had stressed that it had no plans to expropriate RCTV's transmitters.[320]
As the crucial date neared, the audience groups registered with CONATEL provided a way out for the government. Eleven of them requested the Supreme Court to deliver an injunction obliging CONATEL to provide all Venezuelans with access to the station about to air for the first time. With unusual speed (the court had delayed for months before rejecting an appeal for an injunction filed by RCTV to keep it on the air), it granted the audience groups' appeal, and ordered the military to secure RCTV's transmitters across the country so that CONATEL could use them to transmit the TVES signal.[321]
Chacón argued that the RCTV decision meant Venezuela's first public service outlet would contribute to the democratization of the media. After a year in operation, TVES has shown no signs of genuine independence of the government or editorial pluralism. The channel is funded by the government, its director and five of its seven governors are government appointees, and there are no safeguards to ensure representation of different sectors of opinion.[322] An analysis of 42 hours of programming in June 2007 revealed that 8 percent consisted of repetitive government messaging, more than the 6 percent dedicated to news. The news coverage itself consisted largely of government information, and downplayed opposition opinion or stories that reflected badly on government authorities.[323] A study of media coverage of the December 2007 referendum campaign revealed that TVES had coverage no less biased toward the Yes vote than the state channel VTV.[324]
With RCTV's removal from the public airwaves, only Globovisión, whose 20-year license is due to expire in 2015, remains as a station with an unequivocal opposition editorial line. But Globovisión transmits a free-to-air signal only in Caracas and Valencia, enjoying only a fraction of RCTV's reach.
Globovisión
Globovisión has also been under pressure from the government for years because of its political line. It has received warning letters from CONATEL because of the political tone of its reporting, it has been frequently refused entry to government press conferences, and its reporters and cameramen have been physically attacked and threatened by ChAvez supporters.
Although government officials have recognized its broadcasting concession as legal, Globovisión, founded in 1994, still has not received a reply to an application for the validation of its license, a mandatory procedure for broadcasters whose license predated the Organic Law of Communications of 2000. Under this law, CONATEL was obligated to complete the validation process by June 2002, but it still had not done so at this writing.[325]
Globovisión executives complain that its many submissions to CONATEL for extended coverage have been denied or more often ignored.[326] In 1998, in the final year of the Caldera administration, CONATEL assigned Globovisión two extra frequencies in the states of Vargas and Monagas, with a one-year deadline to install its transmitters. According to Globovisión, it filed a request in May 1999 to CONATEL for an extension of the deadline. Having received no reply, it submitted further applications for the frequencies in August 1999, January 2002, April 2002, June 2002, and February 2005, all without result.[327]
On top of failing to respond to Globovisión's requests, the government decided to free the frequencies that the company had been trying to secure for years. In September 2005 CONATEL began an administrative investigation against Globovisión for its failure to occupy these frequencies.[328] Globovisión protested that it had not received legal authorization to use them after it missed the initial deadline, and that to do so without authorization would be illegal. Three months later, the Ministry of Infrastructure decided Globovisión was not at fault and ordered CONATEL to investigate the legal status of the frequencies. In April 2006 despite Globovisión's numerous applications for the frequencies over several years, CONATEL published a resolution freeing them for use by other service providers, without explaining to Globovisión the outcome of its long-delayed applications.
The Supreme Court supported the government's refusal to address Globovisión's claims. Globovisión had filed a writ in the Supreme Court to annul CONATEL's April 2006 resolution, alleging it had been denied a fair hearing. It also requested the court to issue a temporary injunction to suspend the effects of that resolution until the court had ruled on its legality. In November 2006, the Supreme Court's Political Administrative Chamber rejected Globovisión's request for an injunction, arguing that CONATEL's lack of response should be interpreted as a denial of Globovisión's requests.[329] Two years later, the court has yet to rule on the legality of CONATEL's resolution.[330]
In stark contrast to the bureaucratic obstacles faced by Globovisión in its efforts to reach a wider public, state-owned Vive TV, a cultural channel founded by the government in 2003 (nine years after Globovisión's inception), is currently transmitting on public airwaves to Caracas and all 23 of Venezuela's states.[331] As we have seen, the government's most recently created channel, TVES, obtained in a matter of days nationwide frequencies and a network of national transmitters which RCTV was obliged to surrender indefinitely without a judicial hearing.
Vale TV (Channel 5)
CONATEL's treatment of Vale TV is another example of the lack of transparency and apparent arbitrariness of the government's administration of broadcasting frequencies. In this case, the reason for discrimination was less political (Vale TV's programming was politically innocuous), but appeared to be based on the government's conviction that the station's frequencies legitimately belonged to the state.
During the 1990s Channel 5 (then TVN-5), Venezuela's oldest state channel, was virtually defunct, only retransmitting sports programs from the main state channel (VTV) for a few hours a day. In 1998 the Archbishop of Caracas proposed to then-President Rafael Caldera to replace it with a new public service non-profit educational and cultural channel, with commercial and technical backing from Venevisión, RCTV, and Televen. In December 1998 CONATEL reserved Channel 5's 27 frequencies across the nation for use by Vale TV and authorized it to begin transmissions.[332]
The transfer of Channel 5 to the private sector attracted widespread criticism at the time, mainly because it was seen by media commentators on the left as a covert privatization. Upon assuming office, the ChAvez government began proceedings to recover the frequencies.
On December 14, 2005, CONATEL annulled the concession approved under the Caldera government, arguing that it had been assigned illegally, and took back the 26 frequencies outside Caracas that it had conceded to Vale TV in 1998. Vale TV was told to submit a new application for the Caracas frequency, and was given temporary authorization to transmit in Caracas while the application was being processed. Vale TV asked CONATEL to reconsider, but received no reply.
In April 2006, without any further consultation with Vale TV, CONATEL announced that the 26 frequencies had now passed to the state, and were now free for assignation to other users.[333] In March 2007 Vale TV submitted to CONATEL the required application for its Caracas frequency and also for four of those it had originally possessed in other states (Lara, Bolívar, AnzoAtegui, and Carabobo). At this writing, CONATEL had ratified only the Caracas frequency, thus by default restricting Vale TV's coverage to the capital.[334] To our knowledge, the 26 frequencies the state reclaimed from Vale TV have still not been assigned to other users.
Community Radio and Television
At the same time as the Venezuelan government has engaged in political discrimination in the distribution and administration of radio-electrical frequencies, it has also gone further than many Latin American countries in opening opportunities for broadcast media at the community level. The government's support for these media has contributed to a dramatic increase in the number of licensed community radio and television outlets in recent years, which has given new opportunities for public expression to residents of many poor communities in Venezuela.
International Norms
The United Nations has recognized the role of community media in fostering sustainable development objectives for more than a decade.[335] International bodies like UNESCO and the Inter-American Commission on Human Rights have stressed the importance of non-profit community media for the poorest sectors of the population who normally have very restricted access to the conventional media. In his 2002 report, the Special Rapporteur on Freedom of Expression of the OAS, Eduardo Bertoni, recognized their role in expanding the scope of free expression in societies with significant levels of poverty.[336]
Government Support
Since the 2002 coup, CONATEL has provided millions of dollars to support incipient community media across the country.
Government support was in part given in recognition of the role community radio played during the news blackout during the coup. While the mainstream commercial media were reporting that ChAvez had resigned, and with VTV and National Radio out of action, only a few community radio frequencies reported that he had in fact been arrested, calling ChAvez supporters' from the barrios onto the streets to protest the coup and demand his return. Some paid an immediate price for their reporting: two community outlets, Radio Perola and Catia TV, were raided by police after Carmona's illegal swearing in.[337]
Long before the coup, however, the ChAvez government had committed itself to supporting alternative community-based media. After more than two decades of neglect and marginalization, community media were formally included for the first time in the telecommunications sector in the Organic Law of Telecommunications, enacted in 2000. The promotion of community media "for the exercise of the right to free and plural communication" is named second in a list of the law's objectives.[338]
The Regulations for Non-Profit Public Service Community Radio Broadcasting and Open Community Television (hereinafter "the Regulations"), which came into force in November 2001, encourage community broadcasting. They allow anyone with appropriate skills to obtain a license to operate a community radio or TV station after a feasibility evaluation by CONATEL, and provided that conditions on financial independence and diversity are met.[339] CONATEL provided technical support to start-up community media for a year after the Regulations came into force, including non-reimbursable grants for infrastructure, as well as training.[340]
In October 2003, ChAvez announced that five billion Bolívares (approx. $2,300,000, at current rates) would be donated to a fund to be administered by a cooperative of community media operators to finance seed capital, infrastructure, and training.[341] By 2006, some 3,994,008,000 Bolívares (about $1,860,000, at current rates) of the money had been spent, benefiting 109 community radio and television stations. By August 2007, 266 community radio stations and more than 30 community television outlets were licensed and operating, according to CONATEL.[342]
During visits to Venezuela in 2007, Human Rights Watch interviewed staff at five community radio stations in Caracas and Maracaibo. Four had received money from CONATEL for equipment such as computers, sound equipment, or aerials, and some were operating from premises loaned by the municipal government or other government bodies. Radio Voces Libertarias, which houses a school that trains young people in radio and computing skills, had five unpaid permanent volunteers, and a transmitter and computers lent by the municipality, which also owns the building from which it operates. CONATEL was hiring more experienced workers at the station to organize training workshops in other parts of the country.[343] Radio Nuevo Día in the low income neighborhood of Catia also received government support. "Everything you can see here we got with CONATEL's help," its director told Human Rights Watch.[344] Some community radios also receive income from government advertising.
State-Sponsored Pluralism
The legal regime governing community broadcasting contains norms to protect stations from government or other external interference. Under the Regulations, discrimination in access to the services provided is proscribed; stations are protected from being taken over by any particular political or religious group; state aid may not be made conditional on the donor's influence over program content or other controls; programming cannot be monopolized by an individual or a single group; and the re-transmission of government broadcasts is only acceptable within certain time limits.[345]
The Regulations also establish that the "foundations" set up to start a community radio project must be run on democratic, participatory, and plural lines, with a governing council which is elected every three years, if not earlier.[346] Certain people may not hold official positions on community radio foundations, such as public officials, members of the military, leaders of political parties at any level, leaders or representatives of labor unions, or business associations.[347] As well as these controls, there is an express provision in the law that prohibits discrimination in accessing community media. Foundations must provide "equal access of all the members of a community to the services they provide," and may not "do anything by action or omission to discriminate and prevent access to the medium of some individual or group."[348] Operators must provide airtime so that members of the community can participate in programs directly. Discrimination on the basis of "political beliefs, age, race, sex, creed, social condition, or any other condition" is not allowed. Operators must abstain from transmitting party or propaganda messages of any kind.[349]
A large majority of community radio stations are supportive of the ChAvez government. However, they are not politically homogeneous, and by no means uncritical. Most are associated with the National Association of Free and Alternative Community Media (Asociación Nacional de Medios Comunitarios Libres y Alternativos, ANMCLA), which was formed after a split in the Venezuelan Network of Community Media (Red Venezolana de Medios Comunitarios, RVMC), which helped the government draft the community radio regulations. The RVMC now has about 70 radio stations compared to ANMCLA's 130.[350]
Not all community-run outlets are pro-ChAvez, and even those that are frequently criticize corruption, mismanagement, or malfeasance by local officials. Among non-profit radios that have maintained an independent journalistic line is the Jesuit network Fe y Alegría, which has been involved for decades in popular education in some of the poorest parts of Venezuela, and has won awards from the government as well as from the opposition. There are several stations licensed by CONATEL that are overtly critical of ChAvez, such as Radio Tropical Stereo in Venezuela's second largest city, Maracaibo.[351] Radio Tropical Stereo's director told Human Rights Watch that CONATEL imposed no political conditions when its license application was under consideration in 2003.[352]
Although Human Rights Watch has not documented any cases of government discrimination against community broadcasters, the dependence of most community stations on the state for funding and broadcasting licenses makes them vulnerable to potential political interference in the future, particularly in light of the concerns noted above about the independence of CONATEL.
Lack of Judicial Protection of Freedom of Expression
The Supreme Court has not fulfilled its role as a defender of the fundamental right to freedom of expression from threats by the executive branch or the legislature. As noted earlier in this chapter, it upheld the constitutionality of insult laws that are contrary to freedom of expression norms binding on Venezuela, and invoked these laws itself against a media critic. In its handling of the RCTV case in 2007, the Supreme Court failed to ensure that decisions on the allocation and renewal of broadcasting frequencies are made transparently, without discrimination, and with respect for due process.
The Court's Handling of the RCTV Case
As we saw earlier in this chapter, the ChAvez government refused to renew RCTV's license, abusing its regulatory power to punish anti-ChAvez programming and showing utter disregard for due process considerations. At the time, RCTV and some of its supporters turned to the Supreme Court for relief, submitting appeals aimed at blocking implementation of the president's decision to deny RCTV a renewal of its license.
The Supreme Court, rather than addressing issues of protection of free speech and due process, engaged in a variety of dubious measures-including delaying urgent rulings, failing to address central issues, disregarding key facts, and miscasting the claims of the petitioners-before deciding in favor of the government.
Detrimental Delays
The RCTV lawyers submitted their first appeal on February 9, 2007, six weeks after ChAvez announced the decision to deny the company a concession renewal. The appeal was directed to the Supreme Court's Constitutional Chamber, seeking protection of the rights of RCTV journalists and owners to free expression, due process, and equal treatment. Specifically, the station sought an injunction (amparo constitucional) against ChAvez and Communication and Information Minister Jesse Chacón, to prevent them from taking measures to force the station to stop transmitting when its license expired.[353]
Under Venezuelan law, the court is required to expedite the resolution of such constitutional appeals but instead, for three months, the Constitutional Chamber remained silent on the matter.[354] Only after the government had formally adopted the president's decision not to renew the license, and ten days before the license was to expire, did the constitutional chamber finally issue a ruling.[355] The chamber denied the petitioners' request, rejecting some of their claims and deferring others to another chamber of the court, the Political Administrative Chamber (Sala Político Administrativa, SPA).
The SPA was, at that point, already reviewing a separate and similar appeal that RCTV lawyers had filed in April, after more than two months of waiting in vain for a ruling by the Constitutional Chamber. In this second appeal, the petitioners argued that the government's resolution formalizing the president's decision was unconstitutional, and requested a temporary injunction (medidas cautelares) to prevent its execution until the court reached a final decision on the case.
The SPA issued its own ruling five days after the Constitutional Chamber did,[356] declaring that the majority of claims were too complex to be resolved at that point and would instead be addressed in a final judgment on the merits of the case in the indefinite future.[357] It also refused to grant RCTV a temporary injunction while it considered the merits of the case, thereby allowing the government's decision to go forward and RCTV to lose its concession notwithstanding the potential illegality of the decision and the inevitable and perhaps irreparable damage that RCTV would suffer as a result.[358] At this writing, more than a year after RCTV's license expired, the court still had not issued a final judgment.[359]
Questionable Arguments
In addition to putting off making a final judgment, both chambers of the Supreme Court made use of highly questionable arguments as they sought to justify their refusal to address RCTV's claims.
For example, the Constitutional Chamber rejected the appeal against ChAvez's decision on the grounds that the president was not legally responsible for the decision to deny RCTV the concession renewal.[360] The court argued that the administration of broadcasting frequencies was exclusively the responsibility of CONATEL.[361] While this is correct in general terms, the court appeared to ignore that Venezuelan law expressly provides that free-to-air television and radio concessions are adjudicated directly, not by CONATEL, but by the Ministry of Infrastructure (now the Ministry of Communication and Information), an official who is directly subordinate to the president.[362] ChAvez was therefore perfectly within his powers to order the minister to rescind the decision not to renew RCTV's license, as the petitioners had requested, whether he had taken it personally or his minister had. In fact, ChAvez himself had made it emphatically clear in public statements that he had personally taken the decision, a fact that the court disregarded completely.[363]
The SPA, meanwhile, dismissed the request for a temporary injunction claiming that the government's action did not pose a threat to freedom of expression. According to the court, RCTV would be able to continue broadcasting its views as a cable channel, and the station's large national audience would still be able to view "many other private channels." Absent from the SPA's reasoning was any consideration of the fact that RCTV was the only remaining channel on public airwaves with national coverage that was openly critical of the government, as well as the fact that large segments of RCTV's national audience had no access to cable. The SPA also failed to consider the broader impact that the president's openly political and discriminatory handling of the case could have on freedom of expression in Venezuela.
Similarly, when analyzing the temporary injunction request, the court dismissed RCTV's claim that its right to due process had been violated. RCTV argued that it had no opportunity to respond to the public accusation of criminal actions and broadcasting infractions cited by government authorities as grounds for the decision not to renew its concession. However the court based its ruling solely on an analysis of the resolution and letter issued by the communication and information minister in March 2007-two documents which carefully avoided any punitive language.[364] It avoided mention of ChAvez's public justifications for his decision, as well as the White Book that detailed RCTV's alleged transgressions to justify the non-renewal of the concession. Based on this highly selective analysis, the court found that RCTV's assertion regarding its right to due process was misplaced.
Supporting the New State Channel
The Supreme Court's response to petitions by opponents of RCTV was dramatically different. Five days before RCTV's concession expired, the Constitutional Chamber received a petition from 11 pro-ChAvez audience groups seeking an injunction to guarantee viewer access to TVES, the state channel that was to replace RCTV after its license expired.[365] It took the court only three days to admit the case and grant the petitioners a temporary injunction.
As noted earlier in this chapter, TVES was set up only two weeks before RCTV's frequency became available. As the date for TVES's launch neared, ministers recognized that the government had few transmitters of its own to broadcast its signal throughout the country.
The 11 audience groups argued in their appeal that if TVES's broadcasting range did not cover the entire country, it would violate their right not to be discriminated against, as well as their right "to obtain a quality public television service." The charge of discrimination was based on statements made by TVES executives that for the time being the TVES signal would be limited to the cities of Caracas and Maracaibo and would only be available by cable to viewers living outside these cities.
The constitutional chamber immediately admitted the petition and issued a temporary injunction assigning RCTV's transmitters and broadcasting equipment to CONATEL for use by TVES. The court also ordered the defense minister to secure and protect the broadcasting installations.
In order to justify this measure, the Constitutional Chamber held that the temporary injunction would not affect RCTV's property rights, despite the fact that it was assigning control over them to the state. However, the court did not fix a time-limit by which CONATEL would have to return the facilities to their owner or initiate proceedings to expropriate them. As of July 2008, more than a year after the court decision, TVES continues to use the transmitters.
The court used a petition seeking precisely the opposite outcome-blocking removal of RCTV from the public airwaves-to reiterate its decision that RCTV's equipment should be assigned for use by TVES. The Interactive Radio Listeners (Oyentes Interactivos de Radio, OIR), an audience group opposed to ChAvez, requested an injunction to prevent ChAvez and Chacón from taking steps to have RCTV removed from the air, arguing they had a right to continue watching RCTV. The court argued that their "right" was met by having access to a television service of quality, not by access to any particular broadcaster, and that the injunction enabling TVES to broadcast from RCTV's old transmitters satisfied any claims they might have.[366]
In both rulings, the court stated in no uncertain terms that petitions for injunctive relief required immediate resolution by the court:
[O]n some occasions the object of judicial protection requires expedited protection, which in turn responds to the need to ensure the effectiveness of the court's future pronouncement, and to avoid the risk that a possible finding in favor of the claim is rendered ineffective by the irreversible consolidation of situations contrary to law or to the interest recognized by the court at the time.[367]
This is exactly what the court failed to do when responding to the petitions by the RCTV journalists and owners. [368]
Recommendations
To prevent future acts of violence and intimidation against journalists, the government should:
·Ensure that all attacks on journalists are investigated promptly and thoroughly; and
·Avoid inflammatory public statements that could be construed as condoning such attacks.
The National Assembly should repeal all legal provisions which contravene international norms on freedom of expression and generate undue pressure for self-censorship. Specifically, it should:
·Repeal all insult laws (desacato);
·Repeal all laws that criminalize defamation of public officials and institutions;
·Ensure that civil damages for defamation are limited so as to avoid a chilling effect on free expression; and
·Amend the language of article 29(1) of the Social Responsibility Law to ensure that the offense of incitement is clearly defined and restricted to situations in which broadcasters directly and explicitly incite the commission of crimes.
The government should ensure the impartiality and due process in the procedures by which broadcasting laws are enforced. Specifically, it should:
·Ensure that investigation and sanctioning of alleged infractions of broadcast laws are carried out by an impartial and independent body protected from political interference; and
·Ensure that alleged violators of broadcast regulations are guaranteed the right to contest the charges against them.
To safeguard the right of access to information and increase the transparency of government and the accountability of government officials, the government should:
·Introduce legislation to implement effectively and without discrimination the constitutional right of access to information held by public entities.
To ensure the impartiality in the criteria used for the granting and renewal of broadcasting decision, the government should:
·Give applicants for concessions and frequencies opportunities to present their cases and be heard in a manner that follows appropriate due process, and includes safeguards against political interference.