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VI. THE REGULATION OF TELEVISION

Chilean Television: From Dictatorship to Democracy

Direct censorship of television programs is not permitted in Chilean law. Television is regulated by a watchdog commission, the National Television Council (Consejo Nacional de Televisión, CNTV) which exerts control by means of a system of penalties imposed on stations that violate television programming laws. Regulation is imposed on programming at all hours, there being no scheduling slot which allows the transmission of unregulated material. Unlike the film classification council (CCC), the CNTV is a democratically structured body, representative of the range of political opinion represented in Congress, and all its decisions are public. What is more, the CNTV is explicitly mandated to safeguard pluralism, understood as ethnic, cultural, religious and gender pluralism, not just ideological diversity.

The main concern about the CNTV’s regulatory role relates to the extent to which the application of programming restrictions may lead to self-censorship and whether it is consistent with the pluralism that current television legislation upholds. Two aspects of the system are especially troubling. First, the CNTV is obliged to enforce bans on the transmission of films rejected by the CCC and to penalize stations that transmit outside family hours films classified by the CCC for over-eighteens. Second, it enforces norms relating to moral values which are ill-defined and exceed the boundaries accepted in international law for restrictions of free expression. International law accepts public morals as grounds for restriction of pornography and the depiction of violence. But there is an important difference between the protection of public morals and the inhibition of moral or ethical discussion or of material that challenges orthodox moral perspectives. The danger of confusing the two could be clearly seen in a penalty imposed on the satire program Plan Z, discussed below, which mocked national stereotypes.

From its experimental beginnings in the universities during the late 1950s, television broadcasting was conceived by Chile’s elites as a public service, with a strongly educational and integrative function. During the last decade, this model has given way to an entirely market-based one, in which even the state channel has been forced to compete, without privileges or subsidy, for audience ratings. The fierce competition for audiences has centered on well-tried formulas, such as popular soap operas (teleseries), magazine programs featuring national and international stars, reality shows, andcomedy.59 Paradoxically, despite the emergence during the 1990s of three new private channels, the available fare is remarkably uniform. The two most widely viewed channels, the state channel TVN and the Catholic University Television (UCTV), screen rival soap operas to capture pre-teen viewers during the early evening, placed strategically to hook audiences for the main 9:00 p.m. news broadcast.

Opinion surveys suggest that the main criticism of the content of television comes less from the general public than from traditional elites who watch it comparatively little but at the same time fear that it has a corrosive effect on conduct and morals. Such fears have coexisted with television since its birth and have given rise to an elaborate system of public controls. The two elements, consumer preference and regulatory controls, maintain a precarious balance under the current legal regime regulating the medium.

Chile’s first television law, Law No. 17,377 of October 1970, was promulgated by the Frei Montalva government. Law 17,377 contemplated three university television channels — the University of Chile, the Catholic University and the Catholic University of Valparaíso — and a state channel, Televisión Nacional de Chile (TVN), the only one allowed to transmit across the entire nation. TVN was established as a public corporation linked to the state through the Ministry of Education. Apart from its educational goals, the objectives the law defined for television could be described as integrative:

to spread knowledge of the basic problems of the nation and to procure the participation of all Chileans in the great initiatives undertaken to resolve them; to affirm national values, cultural and moral values, dignity and respect for the rights of the person and of the family, to promote education and the development of culture...to inform objectively...and to provide healthy entertainment, safeguarding the spiritual and intellectual development of children and young people.60

The law reflected a broad political consensus against private television, which it was felt would lead inevitably to a lowering of moral and intellectual standards. Instead, a system of mixed finance was created, based in part onadvertising revenues, in part on state subsidy. The “state-university” model created in 1970 lasted until the final year of the military regime. During the 1970s and 1980s, however, mounting operating costs forced the university channels to depend increasingly on advertising income; in 1977 the military government abolished the tax from which state funds had been derived. A new law, No. 18,838 of September 1989, opened the market for the first time to private operators, a further step away from the initial public model.

The eminently public role envisaged at the outset for Chilean television entailed a regulatory mechanism to ensure that the public interest was safeguarded in its day-to-day operations. For this purpose the 1970 law established a watchdog body, the National Television Council. The CNTV was to “safeguard the correct functioning” of the medium, with powers to fix programming and advertising standards but without powers to intervene directly or previously in programming decisions.

The CNTV has reflected the political outlook of successive governments. Its composition and powers have been modified three times — twice under the military government (in 1974 and 1989) and once since the return to democracy, by the Aylwin government in 1992.

The foundational values of Chilean television laid down in 1970 included a commitment to ideological pluralism as well as to “the free pluralistic expression of critical awareness and creative thought.” The composition of the CNTV ensured a substantial degree of autonomy from the government. Headed by the education minister, it included one presidential nominee, six members elected by Congress, two representatives of the Supreme Court, the rectors of the three universities with television channels, the president of TVN, and a TVN worker representative.

Under the military government, the pluralism-autonomy model was transformed into its diametrical opposite. The 1974 amendments to Law 17,377 broadened the powers of the CNTV and left their definition to the council itself, whose role was redefined as one of moral supervision. In 1980 the CNTV approved a detailed list of “norms for the classification of suitability of programs,” that inter alia, prohibited nudity or “licentious reference to nudity,” , required dress to be “within the limits of decency,” the movements of dancers to be “decorous,” and strait jacketed the portrayal of “the passions and sex.”61 Political realities after the coup brought the CNTV under effective governmentcontrol. No longer with any elected members since the dissolution of Congress in 1973, the presence on the council of the university rectors and the president of TVN (all of them now appointees of the military junta) meant that the two judicial appointees were the only counterbalance to executive power.62 The council’s mandate to “safeguard the correct functioning of television” was written into the 1980 constitution, leaving the crucial definition of “correct functioning” to later legislation. In the event, the 1974 norms remained in force for a full fifteen years, transforming the CNTV into a body representative of political and moral views associated closely with the military government.

The 1989 television law, one of the last legislative acts of the military government, defined “correct functioning” as “the constant affirmation, through programming, of the dignity of persons and of the family, and of moral, cultural, national, and educational values, especially the spiritual and intellectual formation of children and young people.” [Emphasis added.] By doing so, the law narrowed the council’s functions to what was, in essence, one of moral protection — the 1970 law, as noted above, had sought also to safeguard pluralism, a critical spirit and the right to be informed, all an essential part of the original conception of television as a public service. The 1989 law also reshuffled the composition of the CNTV to make sure that the military had a voice after an elected government came to power. The council was reduced to seven members, two of them appointed by the commanders-in-chief of the armed forces and Carabineros and one a former member of the Supreme Court, ensuring a powerful conservative voice in the council’s deliberations.63

Among the council’s functions was to “dictate general norms to prevent the transmission” of pornography and excessive violence and to impose penalties on stations transgressing the norms of “correct functioning,” ranging from admonitions and fines to the cancellation of operating licences. The law attributed a quasi-judicial role to the council, allowing offending stations toappeal against a penalty, in which case the council had a fifteen-day period to reconsider the evidence. There was a final right of appeal to the Santiago Appeals Court, although penalties were enforced while the hearing was in progress.

The CNTV in Democracy: New Values and Old

With the advent of a democratic government, the composition of the CNTV changed and its functions were redefined again. In the preamble to the Aylwin administration’s television law,64 society is stated to “be obliged to exercise special care in regard to the use made of television” because of its almost universal outreach and suggestive power. At the same time, control was to be exercised within a pluralistic democratic framework.65 To the list of conservative values in the 1989 law some were added to reflect the moral preoccupations of the center and the left. Thus, to “the moral and cultural values proper of the Nation, the dignity of persons, the protection of the family,” and the “spiritual and intellectual formation of children and young people within said moral framework” were added “pluralism, democracy, peace, and the protection of the environment.” “Correct functioning” was redefined to mean “permanent respect for” rather than “constant affirmation of” these values, entailing an obligation not to transgress them, rather than a duty, as before, to propagate them. Furthermore, “pluralism” was expressly intended to include ethnic, cultural, religious, and gender diversity as well as ideological pluralism.66

Apart from safeguarding correct functioning under Article 1, the council was required under Article 12 to adopt and enforce norms to prevent morbid violence (truculencia), pornography, and the “portrayal of children oradolescents in immoral or obscene acts.” Each of these four concepts was defined by the council in its “General Norms on Content of Television Broadcasts”2 published in the Official Gazette on August 20, 1993.

Article 13 requires the council to take measures to avoid the transmission of films that have not been classified by the Council of Cinematographic Classification (CCC), usually because they were not intended for general release. The CNTV may also sanction any television company that transmits a film the CCC has banned, and it may establish a time-slot for the transmission of films classified by the CCC for over-eighteens, penalizing stations that transmit such films at other hours. Such films may not be transmitted between 6:00 a.m. and 10:00 p.m., during which time advertising of tobacco and alcohol is also prohibited.

In short, the CNTV may penalize television stations for fourteen types of infractions under articles 1, 12, and 13 of the amended 1989 law. These include eight infractions under Article 1 on “correct functioning,” namely programs offending: the moral and cultural values of the nation, the dignity of persons, protection of the family, pluralism, democracy, peace, protection of the environment, and the spiritual and intellectual development of children and young people. In addition there are four infractions under Article 12, consisting of excessive violence, morbidity, pornography, and the participation of children and adolescents in immoral or obscene acts. Finally, Article 13 refers solely to films classified by the CCC. It penalizes the transmission of banned films at any hour, and those classified for over-eighteens before 10:00 p.m.

The 1992 law retained the system of penalties established under the earlier law but expanded the powers of the council by allowing members of the public to denounce television companies for infractions. At the same time it strengthened due process guarantees by allowing television stations a period in which to prepare and present a defense after the council had formulated a charge against them. If the council accepted the defense, the station could be cleared of any infraction.

The CNTV was enlarged in 1992 to eleven members and its composition broadened. It now included one councillor appointed freely by the president and ten appointed by the president with the consent of the Senate, all of whom must be “persons of relevant personal and professional merit,” such as academicians, holders of a national prize, university professors, school directors, former parliamentarians, judges or military or police officers. The removal of the armed forces and judicial nominees made the commission more democratic. The CNTV’s composition is dependent on political negotiation in the Senate, where the conservative opposition has held a majority since 1990, due in largepart to the presence of the appointed senators. In addition, there is no longer any representative of the medium itself on the council.

At present, the council includes members of the Christian Democrats, the Radical Party, the Socialist Party, and the PPD, as well as representatives of RN and UDI. The balance is approximately even between the government and the opposition parties. The CNTV president, Pilar Armanet, is a member of the PPD. Political pluralism, rather than any direct representation of civil associations or non-governmental groups, is intended to ensure that the council reflects the cultural diversity of Chilean society. Essentially, the council could be considered to reflect the diversity of viewpoints in the cultural elite represented in parliament.

The council reaches all its decisions by a majority vote. Under the previous president of the council, José Joaquín Brunner, decisions had been reached by consensus, a method considered by Armanet to be inconsistent with the principle of political representation, as well as unworkable due to the unbreachable divergence of opinion that often emerged in its discussions. The council’s secretariat monitors open television round the clock and cable television by monthly samples, sending excerpts from programs that might constitute infractions to the councillors for their review and comments, which are then discussed and voted at the council’s next meeting.67 a research department, established by Brunner, carries out periodic studies of the development of the medium and of audience behavior and evaluation. These have included surveys to find out what kind of programming regulation the population wants and how the regulatory role of the CNTV is assessed.68

The Conflictive Issue of Cable Regulation

Since September 1995, the CNTV has also monitored signals generated outside Chilean borders applying the same regulatory norms to these as to Chilean cable television companies.69 In May 1996, Metrópolis Intercom became the first cable company to be penalized by the CNTV, receiving an official warning for transmitting on the Cinemax channel Las Chicas de la Barra, a film judged pornographic by the council; in November it was fined for showing Tres Formas de Amar and Max Mon Amour for the same reason. The Santiago Appeals Court rejected a protection writ lodged by four congressmen against the CNTV in which they had argued that the council’s monitoring of cable was an arbitrary and unconstitutional interference in the right to enter into a commercial contract and their right to information. The Appeals Court, later upheld by the Supreme Court, rejected the appeal, arguing that regulation of cable was prescribed in the 1992 law which allows the CNTV to regulate “restricted services of television” and that it was legitimate for the state to limit freedom of contract since all contracts were subject to the constitution and the laws.70 Opinion surveys conducted by CNTV during the same year showed that 47 percent of the population were opposed to any form of state control over cable.71

Legitimacy of the CNTV’s Role

In a literal sense, the CNTV has no mandate to interfere in programming decisions, to preview programs or suppress items before transmission; it may only apply penalties after the event. Current norms, however, do entail prior censorship in one important area. By penalizing thetransmission of films previously banned from public exhibition by the CCC, the 1992 law extends to television, including cable, the effects of prior censorship of the cinema.72

Unlike the regulation of violence and pornography which are defined in the law, the eight values enumerated in Article 1 that television is obliged to respect are undefined, and there are no legal guidelines to specify what infractions are. “The moral and cultural values of the nation” is an eminently vague and inclusive category, as are “protection of the family” and “the dignity of persons.” Restrictions based on these concepts exceed the restraints on freedom of expression allowed in the American Convention on Human Rights to protect public health and morals. Their extensiveness is inconsistent with the principle that any restraint on freedom of expression must be clearly drawn and tailored strictly to the protection of a defined and legitimate right or social imperative. Current television norms do not clearly specify the conduct constituting an infraction, thus contravening a basic principle of due process. In addition, they encourage self-censorship, since in the absence of such criteria stations may act with excessive caution to avoid penalties. Finally, if their effect is to suppress minority perspectives, they lead to an impoverishment of the public debate.

In fact, the actual effect of the application of Article 1 has been less punitive than the law permits, which we believe reflects awareness on the part of the council, or some of its members, of the need for a margin of tolerance. In the four and a half years from October 1993 to April 1998 the council has imposed 118 penalties, only fifteen of them under Article 1. Seventeen other charges under this article have been dropped after hearing the station’s defense.73 According to its president, the council has increasingly adopted a principle of proportionality, avoiding penalties unless the infraction is evidentand severe.74 The sparing use of Article 1 is an indication of an the council’s awareness that its use threatens the guarantees of pluralism the council is mandated to respect. The council has frequently split when called on to vote in Article 1 cases.

These splits seem to be another reflection of the competition of views within the political elite over permissiveness. According to one view, society must be protected against “offensive” expressions, and weak controls are a sign of moral laxity (libertinaje). Another view, still a minority one among opinion-leaders, holds that offense to conventional orthodoxies must be tolerated, and that the mature citizen should be entitled to make up his or her own mind about what they read or view. In a typical discussion, the council voted after a long debate not to charge Megavisión for a sketch in its popular humor program Jappening con J, which pictured the president and his wife in their home in banal, everyday circumstances. Both conservatives and Christian Democrats on the council felt this was a harmful lampoon because it mocked the “ordinariness” of the president, and that it set a troublesome precedent in the portrayal of his office. In the end the liberals won the argument, and none of the council members voted for the charge.75

Sex and humor are two areas that have been particularly vulnerable to penalties under Article 1. In October 1994, Megavision’s humor program Chileans All (Chilenos Todos) , starring one of Chile’s most popular comedians, Coco Legrand, was issued a warning for showing scenes “contrary to the moral and cultural values of the nation and the dignity of persons.” The station was later absolved of the charge. Chilevisión’s Let’s Talk about Sex (Hablemos de Sexo) was penalized in May 1995 for a discussion of oral sex that was considered to affect “the spiritual and intellectual development of youth.” The same channel’s chat program Scruples (Escrúpulos) was reprimanded in October 1995 for infringing the “moral and cultural values of the nation.” Special Report’s October 1995 feature on lesbianism was charged for an infraction of the norm protecting the family. Following complaints from the president of Chile’s Olympic Games Committee, Sergio Santander, La Red’s program Bonvallet en la Red was charged in August 1996 with “offending the dignity of persons.” Eduardo Bonvallet, a sports commentator notorious for his abrasive criticism of sports personalities, had offended Santander by referring to him as “Don Sata” (Mr. Satan). The charge was later dropped. Bonvallet was,however, sued for libel by Santander and others and in April 1996 was arrested and spent five days in Capuchinos prison.76

Crossing the line: Plan Z

The most controversial decision of the council was a penalty imposed in April 1997 on Rock and Pop’s humor series Plan Z for a sketch based on the suicide of Allende. Plan Z was also charged for infractions in other sketches but absolved in the midst of strong press criticism at the charges. Produced by a group of journalists in their twenties, Plan Z deliberately broke with conventional television genres by using a informal potpourri of styles, including hand-held 8-millimeter sequences and zany camera movements, to debunk national myths, prejudices, and stereotypes. When a predecessor, Faked Goods (Gato por Liebre),77 aired in 1996 it was a novel element in Chilean television and soon developed a cult following. The producers, Rock and Pop television, described Plan Z as not only aimed at myths but also at conventional television manners and style.78

Plan Z was first charged by the CNTV for three sequences in its January 14 edition, involving the Bible, the Chilean national flag and anthem, and Barbie dolls made to appear like Mapuche Indians.79 Stating its grounds for the charges, the council recognized the right to make “incisive, mordant, and ironic”(incisiva, mordaz e irónica) criticism, but this was not to be confused with “facetious, merely offensive, and denigrating exploitation of the dignity of persons and respect for institutions of special significance and value in the national culture. Neither the Bible, nor national symbols like the flag may be subjected to an abusive use of this style on a screen of public television.”

The council decision continued:

These infractions have been committed by wrongly presenting the Bible as a story of conflicts between Nazis80 and Jews, protagonized by Jesus and the Jewish patriarchs, and by treating the national flag in ridiculous situations. Finally, by using dolls which are children’s toys and presenting them as objects of sexual deviations or in mockery of a national ethnic group is contrary to the dignity of persons and of values in the formation of children.81

In its defense, the station explained that the Bible sketch was a satire on superficial and badly informed literary critics. It had been aimed at “the custom of certain television literary critics of popularizing a work at the expense of gross oversimplifications” and had formed part of a series which had begun with Don Quixote and Romeo and Juliet. The flag and national anthem sketch — which involved a contest to choose the most beautiful — had not been aimed at the symbols of the nation but at a streak of chauvinism in the national character. The Barbies were chosen as a cultural icon because of the values, conducts, and attitudes they represented to the program-makers. “Adding negative values to a well-known and familiar product is an obvious way of exposing latent streaks of racism in a Chile that prejudges and relegates members of a race to inferior jobs” the station argued, denying that the Barbies had been represented as “the object of sexual deviations.”82 By a narrow margin, the CNTV voted to withdraw the charges.

Even greater offense was caused by the comedy group’s satire on popular myths about the circumstances of the military coup. By portraying Allende in the stereotyped guise of a drunk and a crook, the program, according to its makers, sought to expose typical elements of anticommunist mythology, such that Allende was an alcoholic and a scoundrel who robbed the country, that the military took power amid universal clamor, and that human rights excesseswere committed in self-defense.83 The CNTV, however, considered the depiction of Allende to have “offended the dignity of persons.” The council again split down the middle. A minority of five accepted the station’s defense that the sketch had not been a straight lampoon of the former president but rather a satire of his portrayal in right-wing “pseudo-history.”

The case was reminiscent of the scandal that erupted in Chile in August 1994 at the reproduction in La Epoca of a satirical portrait of Simón Bolivar, Latin American liberator and patriarch, by avant-garde artist Juan Dávila. The caudillo was pictured as a person of undefined sex, with breasts exposed beneath his tunic, making an obscene gesture at the onlooker. This flagrant violation of the aristocratic image of the liberator motivated angry protests from the Venezuelan, Colombian and Ecuadoran embassies, and Chilean flags were burned in Caracas by nationalist demonstrators. The Chilean government called the publication of the work a “lamentable incident,” and simultaneously apologized for and disowned Davila’s work, which had been part of project financed by FONDART, the state fund for support of the arts. The principled argument advanced by defenders of the work was that art could not be subjected to, moral orthodoxies or political control of any sort.84

There are dangers of applying a regulatory process to any form of expression for the values it supposedly expresses. In the first place, it rests on the questionable assumption that there is general agreement about what the injured value is. Secondly, it implies that there can be an objective interpretation of a cultural product or a work of art (clearly Plan Z’s makers had a radically different interpretation of the Allende sketch than the CNTV councillors who ruled it offensive). Apart from the element of subjectivity in any such judgments, criticism of values or the advocacy of other values is a permissible use of freedom of expression.

Public morals are in flux everywhere, and Chile is no exception. The Human Rights Committee has recognized that “public morals vary widely, that there is no universally applicable standard and that consequently a certain margin of discretion must be allowed to the responsible national authorities.”85 In the case under its consideration, which involved the censorship by the Finnish Broadcasting Company of a program about homosexuality, the committee ruled that the restriction was within the margin of discretion and could not be judged in violation of Article 19 of the International Covenant. The key question here is not about the legitimacy of this margin of discretion, but how wide it should be and whether the restrictions imposed in each case are “necessary” to protect public morals. One of the Human Rights Committee’s members, Mr. Opsahl, expressed an individual opinion, which should be highlighted:

In my view, the conception and contents of “public morals” referred to in Article 19 (3) are relative and changing. State-imposed restrictions on freedom of expression must allow for this fact and should not be applied so as to perpetuate prejudice or promote intolerance. It is of special importance to protect minority views, including those that offend, shock or disturb the majority.86

There is a distinction between the encouragement of immoral conduct, which may be a legitimate ground for restrictions, and the expression of dissident views or the breaking of taboos on moral issues. There is no provision in international law justifying restriction of the right to criticize or question a value or to favor a competing value. In the words of former Secretary General of Government José Joaquín Brunner, the purpose of restrictions is to preserve a “limit or threshold which is set by the ‘moral consensus’ and which, in this area of communication, society wishes to protect and which may not be infringed by television.”87 Moral consensus, in our opinion, is not a comparable notion to public morals. It is essentially not a question of conduct, but of conformity to a dominant or majority mode of thought. 88

Restrictions and penalties imposed in defense of a moral consensus are suspect to advocates of free expression. There may or may not be a consensus in society on moral issues, although in a plural society there normally are many divergent perspectives. Measures that enforce a consensus by restricting the expression of divergent ideas, it could even be argued, are inconsistent with the very idea of consensus: agreement, if it exists at all, must emerge freely out of a confrontation of points of view. As UN Human Rights Committee member Opsahl pointed out, such restrictions may also perpetuate prejudice and intolerance towards minority groups whose beliefs are different. A distinguished scholar in this field has stressed the dynamic role of confrontation of ideas in the development of knowledge. “If one starts with an absolute conception of the truth that holds that the truth has been given at some point in the past, then one’s job as its custodian is to make sure that it is in no way tainted.”89 He distinguishes this concept of custodianship from a dynamic concept of truth, according to which advances in ideas often take the form of a what seems at the time a heretical or eccentric departure from normality. It is a truism that many of the ideas and values now taken for granted were once advocated by isolated individuals or groups against an overwhelming consensus of scientific or ethical thought. Freedom of expression is about the right of every citizen, not just writers, artists or scientists, to say what they think from their own perspective, experience and beliefs, even when what they have to say may seem preposterously wrong, offensive or shocking to others.

It is difficult to see in practice any way of harmonizing enforcement of respect for consensual values with the requirement of genuine pluralism of the kind the CNTV advocates. The senate commission that debated the television law decided not to give the CNTV powers to lay down more precise norms for the definition of the values in Article 1. The government had intended to do so, to avoid the possibility of the article being interpreted too liberally or too conservatively, but the senate disagreed. Most likely an effort to define infractions has been avoided because there is little consensus on what they are.It is troubling that television is required to abide by standards that have been left for definition entirely to the council’s decisions, with no prior public debate. One likely effect of the lack of definition of the norms is extensive self-censorship, passed down the line from station directors to editors and program-makers. This was pointed out by the makers of Plan Z, who complained of a “climate of self-censorship, characterized by fear of transgressing something undefined, which is not known, which may change without apparent reason, whose limits are imprecise and which presents itself suddenly and threateningly.”90



Regulation of violence and pornography

Chilean norms on the depiction of violence and sex are stringent in both print and visual media. Since October 1993, sixty-six of the 118 penalties imposed were for infractions under Article 12, involving excessive violence, the exploitation of suffering, pornography or the depiction of children in immoral or obscene acts. Violence and pornography, and particularly the exposure of children to them, appear to be concerns widely shared in the population: 87.5 percent of the CNTV sample agreed that they should be subject to some form of regulation. At present these restrictions are applied in open television and cable throughout their programming. There are no hours reserved for unsupervised viewing. The present system aims to prevent the transmission of violence and sex through self-censorship by the stations, minimizing freedom of choice and the role of parental control. In fact, films transmitted both on open and cable television are frequently cut, sometimes by bleeping obscenities from the soundtrack. Scenes with scantily dressed models and violent games were reportedly cut from the Chilean version of The Great Game of Oca (El Gran Juego de Oca), a Spanish contest show transmitted by Catholic University’s Channel 13 in 1996. The same channel’s Top Secret, a series based on the Brazilian I Promise, was reportedly provided with a different ending considered more suitable for Chilean audiences; in the original Brazilian version the hero finally abandoned his wife and went off with his mistress.91

It is not easy to say whether such self-censorship is a result of the dissuasive effect of CNTV’s penalties or whether it arises from the editorialpolicy of station directors and owners; most likely both factors come into play. 13's popular series Adrenaline (Adrenalina), an attempt to challenge TVN’s domination of the popular drama series, provides an interesting example of editorial self-regulation. In order to gain points on TVN, whose series Sucupira had featured numerous girls in bikinis, the Catholic station’s producers loosened its normal strict codes on dress and nudity. After elation at the initial rating success of the series, top station managers began to object to glimpses of the black lacy underwear of the program’s teenage stars, and the ebullience of its principal characters. Instructions were issued for skirts to be lengthened, cleavages to be covered, kisses to be shortened and de-eroticized, and a fistfight in a discotheque to be cut as too violent. According to El Mercurio, Santiago Archbishop Carlos Oviedo had protested about Adrenaline to a high-ranking station official, and on the following day the station’s drama director was unceremoniously fired.92

The protection of minors

Of the 339 charges formulated by the CNTV since October 1993, almost half (157) have been for the transmission during family hours of films classified by the Council for Cinematographic Classification as for over-eighteens. Most of these have been lodged against cable companies that have failed or been unable to adjust transmitting schedules to ensure that the CCC’s classifications are respected. In the great majority of these cases (124) the cable companies have been excused of any infraction. There is profound unhappiness in the CNTV at its obligation to enforce Article 13, because most of the classifications, which are unreviewable, were made by the CCC in previous years on the basis of standards that now appear absurdly restrictive and unworkable.93 To cite a few cases, the CNTV is obliged to protect Chileanminors from exposure to Gone With the Wind, Jailhouse Rock, Accident, Husbands and Wives, Rambo 2, Bugsy, Gumshoe, Pat Garret and Billy the Kid, and The Witches of Eastwick. Even classics like Rebel Without a Cause, Casablanca, The Seven Samurai, or 1900 can be screened only after 10:00 p.m., although any of these titles are freely available for rental on video. Council members have found different ways of sidestepping the bind of having to enforce a norm they find patently absurd. Some vote for the charge while signaling their disagreement with the classification; others abstain for the same reason; while others consistently vote against any charge. The high acquittal-penalty ratio clearly reflects the strength of this discreet opposition — and the urgent need for reform.

“Holier than the Pope?” Self-censorship in cable

Chilean cable companies must meet not only the explicit requirements for films classified as eighteen-plus; cable companies must also contend with the indefinable values protected in Article 1. In 1996 the word “largometraje” (full length film) — usually indicating a vacant slot after the cable company had removed a previously scheduled film from the schedule issued by the signal — appeared seventy-seven times in Metrópolis Intercom’s September catalogue. In the March 1998 issue, the word appeared 296 times, meaning that nearly ten programmed films a day had been altered.94 An official of Metrópolis Intercom told Human Rights Watch that the films cut belong to one of three categories: those banned by the CCC, those classified by the CCC as for eighteen-year-olds and above and originally scheduled to be shown before 10:00 p.m.,95 and films that have not been classified by the CCC but are considered by the operator to conflict with the criteria laid down by the CNTV for “correct functioning.”96 How are cable companies to review and judge the scores of action titlesprogrammed every week by eight or more signals, when transmission of a film like Robocop 2 is penalized for excessive violence, cruelty and the participation of minors in immoral and indecent acts? The response appears to have been: if in doubt, cut it.

While the cable operators insist that they are only complying with the law, members of the CNTV accuse them of overzealous editorial control, i.e self-censorship.97 In fact, one of the two major cable operators, Metrópolis Intercom, adheres to standards on sexual content that appear more prim than could be expected from mere adherence to the norms laid down by the CNTV.

In September 1995, Metrópolis and Intercom, then separate companies, replaced American Undercover, a series on HBO about underground sexual practices in the United States, with cartoons and a feature on swimsuits, announcing on-screen that the series did not comply with the 1992 law.98 a re-transmission by HB. in December 1996 was also blocked.99 In January 1998, the company censored América’s program D a 2 because of sexual content, on grounds that it infringed Law 19, 131 (VTR-Cablexpress, which transmitted the program, however, was not charged with any infraction).100 In May, Metrópolis Intercom cut a report in its America’s Zoo series on the porn film industry and later removed América’s transmissions altogether from its offer, replacing them with a channel “appropriate to family audiences and more in accord with Metrópolis’ line,” according to a company official.101 While the company blamed Chilean laws for the cuts, the secretary general of CNTV, Hernán Pozo, denied that the council had penalized the program and said that the cuts were theoperator’s responsibility alone.102 Despite the pervasiveness of self-censorship in Chilean society, no one likes to own up to it.




59 Rivalry among the teleseries is a prime topic in the cultural sections of the newspapers.

60 Cited in Flavio Cortéz, “Modernización y Concentración...” p.594.

61 “It must be based on the institution of marriage and the home. No film must infer that casual or promiscuous sexual relations are an acceptable or common thing.” Cited in Brunner and Catalán, Televisión, p. 56.

62 Chile’s universities were intervened after the coup and their rectors replaced by “rector-delegates” appointed by the junta. The Supreme Court retained its formal independence throughout the Pinochet era but became ardent in its support for the military coup and failed, with tragic consequences, to oppose human rights violations in the years that followed. See International Commission of Jurists, Chile, a Time of Reckoning, pp. 73-89.

63 The other four members included one appointed freely by the president, one appointed by the president subject to the approval of the Senate, and two appointed by the university rectors.

64 Law No. 19,131 of April 8, 1992.

65 "It is the purpose of the present bill to assure the development of Chilean television within a framework of democracy, pluralism, freedom, respect for the human person and promotion of the great national values.”

66 According to Secretary General of Government Jose Joaquín Brunner, who was the new CNTV’s first president, the Senate committee that revised the bill established cultural pluralism “within the value, ethical, moral and cultural framework indicated” as a central objective of the council. Brunner interpreted this concept to imply a built-in self-limitation in the sense that ensuring respect for basic moral values did not mean repressing the expression of alternative points of view, lifestyles, etc. Brunner and Catalán, Televisión, p. 67.

67 Human Rights Watch interview with Pilar Armanet, president of the National Television Council, May 27, 1998.

68 See, for example, Consejo Nacional de Televisión, División de Estudios Supervisión y Fomento, Principales Resultados Encuesta Nacional de Television, 1996. According to this study, 51.8 percent of the sample were either against any form of regulation in open television at all or against any regulation in a time-slot reserved for adults. Forty-eight percent said there should be a regulated adult time-slot or stricter controls on content and scheduling. While there is a clear consensus for control over the scheduling of “adult” programs, therefore, a slight majority would prefer a more liberal system than the present one.

69 Chile is no exception to the explosive growth of cable in the region during the 1990s. By 1996, 598,903 homes were cable subscribers, but due to the high number of pirate connections the real number of families with cable access was estimated at 755,000 (23 percent of households). Cable transmissions almost tripled between 1994 and 1996 (from 454,714 to1,204,865 annual hours, whereas free-access television increased only slightly (22,000 to 49,000 hours). More than 200 operating concessions had been granted by 1994 (involving seventy-five companies), although the market then underwent an equally rapid process of concentration. Currently the market is shared by the two giants, Metrópolis Intercom and VTR Cablexpress. Figures from Flavio Cortez, “Modernización y Concentración,” pp. 598-599.

70 "Cornejo: El fallo legítima la censura de la TV cable,” La Epoca, October 12, 1996.

71 Consejo Nacional de Televisión, Encuesta 1996, p. 67.

72 Referring to the banned film The Last Temptation of Christ, Jorge Nararrete, in his new post of executive director of VTR Cablexpress, said, “The Last Temptation of Christ is a film we can’t transmit. And if there are other films we cannot transmit it is because we must comply with the law. Our decision is not the product of an editorial line.” “Navarrete: debemos cumplir la ley,” La Epoca, August 30, 1996.

73 Consejo Nacional de Televisión: “Formulación de Cargos, Absoluciones y Sanciones 23 de Julio de 1992 a 11 de Mayo de 1998,” unpublished. The CNTV documents each of its decisions and makes this information public.

74 Human Rights Watch interview with Pilar Armanet, May 27, 1998.

75 Ibid.

76 “CNTV formula cargos a La Red por Bonvallet,” La Epoca, September 10, 1996; and “Consejo de TV absolvió a La Red,” La Epoca, October 8, 1996.

77 "Gato por liebre” literally means “cat for hare”; it refers to something mediocre dressed up to look like something special.

78 Mónica Maureira, “Conductores de ‘Gato por Liebre’: ‘Queremos ser más inteligentes,’” La Epoca, October 30, 1996.

79 The Mapuches are Chile’s largest indigenous group.

80 The “Nazis” were the Romans.

81 Consejo Nacional de Televisión, Formulación de cargo a Radio Cooperativa Televisión por la exhibición del programa “Plan Zeta,” el día 14 de enero de 1997.

82 "Honorable Consejo Nacional de Televisión,” Defense of Luis Ajenjo Isasai, Executive Director of Radio Cooperativa Televisión S.A., April 1, 1997.

83 Ibid.

84 "Conflicto por retrato de Bolívar,” La Epoca, August 17, 1994; Sebastian Brett, “¿El libertador liberado?” La Epoca, August 19, 1994.

85 U.N. Human Rights Committee, Hertzberg et al. v. Finland, Views adopted on 2 April 1982.

86 Ibid.

87 Brunner and Catalán, Televisón: Libertad, Mercado y Moral, p.79.

88 The issue of abortion, for example, has been virtually excluded from public debate in Chile, even though Chile has one of the highest rates of abortion in Latin America, according to a recent estimate. Abortion is illegal under any circumstances, even when to save the mother’s life, and carries prison sentences both for the mother and the abortionist. Conservative senators are currently pressing legislation to toughen the law. Clifford Krauss, “Abortion debated in Chile, where it’s always a crime,” New York Times, August 9, 1998.Suppression of the topic from public debate has not diminished the number of abortions, and the lack of discussion of the topic on television contributes to the marginalization and stigmatization of many women.

89 W.M.Reisman, “Freedom of Speech as a Matter Fundamental to all Human Rights. Why and What for?” in Manfred Wichmann (ed.), Freedom of Expression and Human Rights Protection, (Brussels: Friedrich-Naumann-Stiftung, 1998), p.81. Reisman is Wesley N.Hohfeld Professor of Jurisprudence at Yale Law School.

90 "Honorable Consejo Nacional de Televisión,” Relexión sobre censura previa, correcto funcionamiento y autocensura.

91 Axel Pickett, Matías Carvajal and Fernanda Perelló, “El disfraz de la censura en Chile,” in Cosas, February 28, 1995.

92 "Triunfar sin transar, Adrenalina: Las Bondades de la Maldad,” El Mercurio, September 8, 1996.

93 Replying to an interviewer, Gonzalo Figueroa, the Radical Party member of the CNTV, said, “What I mean is that I am not going to impose a penalty on criteria that are not my own. And the CCC’s criteria are not mine. That is why I have abstained from voting in the sessions I have participated in. I want to know what it is I am sanctioning. I think that the CCC is pretty obsolete and retrograde in its classifications.” Gonzalo Figueroa, “Los del cable se ponen más papistas que el Papa,” La Epoca, September 8, 1996. The CNTV’s president, Pilar Armanet, has also publicly criticized the norm and described it to Human Rights Watch as “our big drama.” Human Rights Watch interview, May 27, 1998.

94 The programs for eight signals (HBO Olé, Cinecanal, Cinemax, Fox, TNT, Space, Entertainment USA and Isat), all providers of movie and popular series, were analyzed. Revista Metrópolis Intercom, March 1998. Due to repeats, the actual number of films affected is considerably less.

95 In October, films in this category included To Bed with Madonna, Acoso Sexual (t), Mortalmente Parecido (t), Rambo 2, Soldado Universal (t), Dangerous Liaisons, Arma Mortal (t), Stallido Mortal (t).

96 Human Rights Watch telephone interview with Fernando Manns, deputy manager of production, Metrópolis-Intercom, May 25, 1998.

97 Mónica Maureira, “Gonzalo Figueroa: ‘Los del cable se ponen más papista que el Papa,’” La Epoca, September 8, 1996.

98 Bárbara Partarrieu, “El sexo es un problema en Metrópolis Intercom,” La Tercera, May 27, 1998.

99 "Censura en TV Cable,” El Mercurio, Revista Wikén, December 20, 1996.

100 “Estamos en descuerdo con censura de Metrópolis,” El Mercurio, January 30, 1998.

101 Bárbara Partarrieu, “El sexo es un problema.”

102 Bárbara Partarrieu, “El CNTV no ha dicho que ese canal transgreda la normas,” La Tercera, May 29, 1998.

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