IV. PROBLEMS WITH THE NEW MEDIA BILL
On January 23, 2003, the Chávez government tabled in the National Assembly a new bill regulating television and radio output, intended to replace the regulations cited in the ministry's investigation. The bill, known as the "Law on Social Responsibility in Radio and Television" enlarges the state's role in the control of broadcast content, and contains several provisions that infringe international freedom of expression standards.
The bill, originally drafted by CONATEL, was submitted to a nine-month nation-wide consultation in 2002. Subsequently, legislators belonging to the governing party made substantial changes to the draft that had emerged from the consultation, resulting in a document still more restrictive than the original.
The National Assembly approved the bill in its first reading on February 13. As of late March, the bill was under discussion in the Assembly's Committee of Science, Technology and Media. The constitution requires that consultations with the public and members of civil society organizations be held before a vote in the Assembly on the final version of the bill.45
The primary justification advanced by the government for the new legislation was that current television output exposes children to an unacceptable amount of violence and fails to respect their special needs. Government officials objected strongly to scenes of violence in opposition demonstrations that were replayed repeatedly during peak viewing hours. The preamble to the bill cites Article 17 of the Convention on the Rights of the Child, which urges states party to "encourage the mass media to disseminate information and material of social and cultural benefit to the child," and to "encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being." Accordingly, the bill purports to establish measures to protect children from exposure to harmful materials, and to improve the quantity and quality of material specifically designed for children.
Article 13 of the Convention on the Rights of the Child guarantees the right of children to free expression in terms almost identical to article 19 of the ICCPR, and subject to exactly the same restrictions. Article 17(e) requires the state to "encourage the development of appropriate guidelines" to protect children from exposure to harmful materials, but does not require it to sanction media that fail to comply. In fact, it obligates states implementing article 17(e) to "bear in mind" the Convention's provisions on freedom of expression (art. 13) as well as article 18, which states that parents or legal guardians have the "primary responsibility" for the upbringing and development of the child. This language appears to be aimed at avoiding excessive governmental controls introduced ostensibly to protect children.46
In the proposed regulatory bill, children are to be shielded during what are defined as "protected" viewing hours (from 6:00 a.m. until 8:00 pm) when they are likely to watch television unaccompanied. Banned entirely during these hours, for example, are "moderate" sexual elements (defined as "manifestations or approximations of an erotic nature without explicit sexual acts") and "implicit sexual messages without an educational purpose." Crude or obscene language, and "physical, psychological, sexual or verbal violence" would also be forbidden. Stations that infringe these norms would face a first-time fine not exceeding 15,000 Tax Units (UTs - approximately $182,000). For a third offense during a three-year period, the station would have its license suspended for forty-eight hours.
If these norms were interpreted literally, stations could be penalized for showing news coverage of wars and internal conflicts before 8:00 p.m., making it necessary for them to present a sanitized version of the news during the day. Many films and soap operas, which contain erotic scenes, fights, family arguments, swearing, and the like, also could not be shown during the day. Children's cartoons could even be questioned for their violent content.
Some of the other norms regulating protected hours are ill-defined and very broad, such as a prohibition on the transmission of "contents that could harm the integral education of children and adolescents," or of "conduct that if imitated by children and adolescents could harm their personal integrity as well as that of any other person." If these norms become law, they could have a strong chilling effect on freedom of expression.
"Lack of Respect" Toward Authorities
Under the draft law, television companies, advertisers, and broadcasters could be punished for transmitting:
contents that promote, defend or incite lack of respect toward legitimate institutions and authorities, like the deputies of the National Assembly, the president of the Republic, the vice-president of the republic, ministers, magistrates of the Supreme Tribunal of Justice, the attorney general, the public advocate, the comptroller general of the republic, the senior authorities of the National Electoral Council and the armed forces, without prejudice to the legitimate exercise of freedom of expression and opinion, within the limits established in the Constitution, in the international treaties ratified by the Republic, and in the law.47
The draft law provides that any violation of this provision is considered a "very serious" infraction, which would incur a fine not exceeding 30,000 UTs (approximately $364,000). On the third offense within a five-year period, the station would be suspended for forty-eight hours.
This provision broadens the scope of Article 53c of the Broadcasting Regulations, currently in force, described above as an "insult law." It was not included in the original draft of the law prepared by CONATEL in 2002, but was added following public consultations, reportedly at the recommendation of a viewers' group.48 The disclaimer at the end of the proposed article would exclude from sanction speech that was protected by international treaties ratified by Venezuela. Since the Inter-American Commission on Human Rights has declared insult laws, as such, to be inconsistent with article 13 of the American Convention on Human Rights, all expressions that fall under the terms of the proposed article would be protected speech, making its provisions contradictory.
Inciting Disturbances of Public Order
Seven infractions contained in the draft law are considered so serious that a culpable station can be immediately suspended for up to forty-eight hours.49 The proscribed contents include any that "incite, advocate or promote war" or disturbances of public order; affect national security; "incite, justify, or promote crime"; disseminate pornography; are anonymous; or advertise firearms or explosives.
Restrictions on free expression imposed in order to safeguard public order are inherently liable to abuse because of the imprecise meaning of the term itself:
"since ordre public may otherwise lead to a complete undermining of freedom of expression and information-or to a reversal of rule and exception-particularly strict requirements must be placed on the necessity (proportionality) of a given statutory restriction."50
As already noted above, the "incite, advocate, or promote" language is extremely broad and could include speech that is protected under international standards. Under the new law, stations could easily be taken off the air temporarily for broadcasting political messages like those advocating mass protests in December 2002 and January 2003. The norms on advocacy of war might, for example, inhibit discussion of the Iraq invasion, or the war against terrorism. Again, the authorities responsible for enforcing the law might use these overbroad categories to restrict the public debate. Given the ambiguity about their scope, managers and editors are likely to exercise self-censorship to avoid sanctions.
Revocation of Licenses
The draft law stipulates that a station that has been temporarily suspended twice during the last three years will have its broadcasting license revoked. The law in its present form does not allow any discretion in the matter, such as a responsibility to ensure that the public interest is uppermost in the decision to close a station or that the punishment is proportionate to the harm caused to the public. This omission suggests that the law's central function is punitive, rather than a tool to improve the quality and diversity of broadcasting.
The National Institute of Radio and Television
It is essential that the body responsible for investigating infractions of broadcasting laws and imposing penalties on media be protected against interference, particularly of a political or commercial nature.51
Under the new media law a National Institute of Radio and Television would be created. The institute's executive council would be responsible for enforcing the new content regulations, and imposing sanctions. (The minister of infrastructure would still retain the powers he currently enjoys to suspend or revoke broadcasting licenses). The composition of the proposed eleven-person executive council is heavily weighted toward the executive and legislative branches. It has no representatives from the broadcasting industry, and there are insufficient safeguards to preserve its independence from the government of the day.
The institute is described in the law as an autonomous institute, with its own funding independent of the state budget, and with "technical, financial, organizational and administrative autonomy." Its wide powers include enforcing broadcasting laws, safeguarding the rights and interests of the audience, stimulating national production (including the production of children's programs), monitoring output, opening investigations of infractions, and applying sanctions.
The president of the institute's eleven-person executive council would be appointed by the president of the Republic for a three-year period. Four members of the council are to be "representatives" of the ministries of education, health, communication and information, and of CONATEL. Three members will be legislators from the National Assembly. Two of the remaining three members will be representatives of viewers' committees, and one will be a representative of independent national production companies.
Thus, five out of the council's eleven members will be officials from the executive branch and three will be politicians from the legislature. No expertise or experience in the media industry is required for appointment. Media organizations, universities, and religious organizations will have no representation on the council.
There are no safeguards in the proposed legislation to minimize the risk of political interference. The mandate of the council does not refer explicitly to the requirement that it act always in the public interest. The law does not disqualify government officials or leaders or employees of political parties from being council members. Indeed, as noted already, four members of the council are to be "representatives" of government ministries, which implies that they could be held accountable to the ministries that appointed them, instead of to the public they serve. The law does not specify how long the term of office of council members will be, nor does it give them fixed tenure during that period.
The lack of safeguards against political interference in the governing body is especially troubling given the complexity of the legislation it is supposed to enforce, and the imprecision of the numerous regulations with which companies, broadcasters and advertisers are required to comply.
Sebastian Brett, senior researcher for Human Rights Watch's Americas Division, wrote this report. Joanne Mariner, deputy director of the Americas Division, Wilder Tayler, Human Rights Watch's Legal and Policy Director, and Joseph Saunders, Deputy Program Director, edited it. Americas Division associates Marijke Conklin and Jon Balcom worked on the research logistics and production. Human Rights Watch would like to thank the Overbrook Foundation for its generous funding of our work in South America.
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45 Article 211 of the Constitution.
46 In a general discussion on "The Child and the Media," organized by the Committee on the Rights of the Child in October 1966, a workshop studying "protection of the child against harmful influences through the media" recommended strengthening voluntary controls, such as the implementation of guidelines by the media industry "in a spirit of self-discipline." CRC/C/50, Annex IX, 13th Session, October 7, 1996.
47 The prohibition is contained in article 115, which applies to television licensees, article 121, which applies to advertisers, and article 125, which applies to broadcasters.
48 Human Rights Watch interview with Jesse Chacón, Caracas, February 11, 2003.
49 Article 129.
50 Manfred Nowak, U.N. Covenant, p. 357.
51 See Article 19, "Access to the Airwaves: Principles on Freedom of Expression and Broadcast Regulation," (Principle 10), London, March 2002, http://www.article19.org/docimages/1289.htm (retrieved on March 17, 2003).