First of all, however, I’d like you to know that I’m very pleased that after months of negotiations your government has reached an agreement with the opposition on a mechanism to manage the current political crisis. That it was possible to reach a consensus to address Venezuela’s political disagreements within the framework of the Constitution and the rule of law is an important achievement.
The main purpose of this letter, however, is to urge you to take steps to address serious threats to freedom of the press in Venezuela. Under your government, I would emphasize, the press has enjoyed considerable freedom. Indeed, as part of the often heated and acrimonious debate between supporters of the government and its opponents, the press has been able to express strong views without restriction. Although we fully acknowledge your government’s lack of censorship, Human Rights Watch is concerned that many journalists working for media that support the opposition have been victims of aggression and intimidation by your government’s supporters.
We condemn these attacks, just as we condemn the intimidation of journalists working for media that are sympathetic to your government. While defending your right to express openly and frankly your views about the media, we have urged you to make it clear to your supporters that the government does not condone or tolerate physical aggression, intimidation, or threats against journalists, whatever their opinions may be. We therefore welcomed comments that you made in your April 27 Hello President program urging restraint and respect for the work of journalists, even those with whose views the government disagrees.
Until now, your government has respected press freedom even in the face of a strident and well-resourced opposition press. We are therefore deeply concerned by the current investigation of four private television stations for infractions of broadcasting regulations, and by your government’s proposal of a new law to regulate radio and television that would impose severe restrictions on the audiovisual media.
Investigations of RCTV, Globovisión, Televen, and Venevisión
By investigating the conduct of RCTV, Globovisión, Televen, and Venevisión during the recent national stoppage, the Ministry of Infrastructure seeks to enforce regulations that on their face violate freedom of expression standards protected in human rights treaties that Venezuela has ratified. We fear that the investigations currently underway are an attempt to create a climate of self-censorship.
Examples include the application of article 53(j) of the Broadcasting Regulations, which prohibits the transmission of “false, deceitful, or tendentious news.” Dr. Eduardo Bertoni, Special Rapporteur on Freedom of Expression of the Organization of American States has found this prohibition to be contrary to article 13 of the American Convention on Human Rights because “the right to information includes all information, including that which, rather than truthful, may be ‘erroneous,’ ‘ill-advised,’ or ‘incomplete,’ precisely because the wide-ranging discussion and exchange of ideas is the appropriate way to search for the truth.”
Similarly, article 53(c) of the regulations prohibits the transmission of “messages, speeches, sermons or lectures that incite rebellion or lack of respect for the legitimate institutions and authorities.” Preventing incitement to rebellion, violent insurrection, or the overthrow of a government by force may be legitimate grounds to restrict freedom of expression. But to be so the threat must be real and imminent, and the expression found objectionable must directly contribute to it. The term “incitement” should never be used to penalize strongly-worded expressions of criticism or opposition to a government, as appears to be the case with the television programs currently under investigation. And the second prohibition contained in article 53(c), covering “incitement of lack of respect,” is an anachronistic concept that has no place in a modern democracy.
The New Bill on the Social Responsibility of Radio and Television
The new bill on the Social Responsibility of Radio and Television, presented to Congress on May 14, is also of great concern to Human Rights Watch. The most recent version of the draft legislation states that its purpose is to establish the “social responsibility of radio and television service providers...creating a democratic balance between their duties, rights and interests” (article 1). To accomplish this, the bill introduces an array of restrictions on broadcasting content that, if enforced rigorously, would enfringe upon basic norms of democracy. It also provides for a regime of drastic punishments for infractions, whose likely effect would be to encourage pervasive self-censorship.
As government officials have recently pointed out, some of the most restrictive provisions of the earlier version have been omitted from the new version of the law. For example, the prohibition of contents that "promote, defend or incite lack of respect toward legitimate institutions and authorities" has been removed. The proposal for the creation of a powerful, state-controlled "National Institute for Radio and Television" has also been dropped. Human Rights Watch welcomes both of these modifications, which we strongly advocated in our meeting with the director of CONATEL, Jesse Chacón, on February 11.
However, many other unacceptable restrictions remain in place in the new bill. In particular, the restrictions that would be imposed under the justification of protecting children from unsuitable programs are excessive, as are provisions introduced ostensibly to protect public order and compliance with the law.
Prohibitions on the transmission of contents considered potentially harmful to children because of offensive language or sexual and violent content must be consistent with the child’s right to freedom of expression, which includes the freedom to seek, receive, and impart information and ideas. Under article 17(e) of the Convention on the Rights of the Child, which requires the state to "encourage the development of appropriate guidelines" to protect children from exposure to harmful materials, states must also "bear in mind" article 18 of the convention, which states that parents or legal guardians have the "primary responsibility" for the upbringing and development of the child. The word “guidelines” implies voluntary standards rather than legal controls.
Restrictions that are so vague or loosely formulated as to lend themselves to subjective interpretation are invariably excessive when accompanied by severe sanctions, since the broadcaster is likely to feel obliged to interpret them broadly just to be on the safe side. Examples are the bans during family viewing hours on programs featuring "conduct that if imitated by children and adolescents could harm their physical, moral, and psychological integrity, like that of any other person's" (contained in article 27(2) of the new bill); or "messages that harm the integral development of children and adolescents" (contained in article 27(4)(c) of the new bill which covers the period of 7a.m to 7 p.m.).
Both of these provisions are vague and subjective. Parents, for example, would differ greatly in how they would define them, some parents being more permissive than others. It is not clear from the law what meaning the supervisory authority, CONATEL, would attach to them. Ultimately, therefore, radio and television editors would be obliged to define the regulations themselves, trying to minimize the risk of sanctions by imposing strict controls of their own. We are very concerned that such norms would have a chilling effect on free expression.
These are by no means the only such ill-defined formulations in the bill. We are also concerned about the ban on transmitting during family viewing hours "images and sounds in common use that, without being obscene Y have a gross nature" (article 5(1)), or of "images and sounds used in the transmission of information, opinion or knowledge about the prevention or eradication of violence that, if witnessed by children or adolescents, require the guidance of their mother, father, or legal guardian" (article 5(4)(b)). In the first case it should be noted how widely standards vary on the "acceptability" of colloquial expressions. In the second, the law nowhere defines what type of contents require parental guidance.
The danger of pervasive self-censorship should these norms be passed is very real because of the severity of the sanctions applied against those who infringe them. For example, under article 27(4), a station would be fined up to 582 million bolivars at current values for transmitting "messages that harm the integral development of children and adolescents," and, under article 28, would be suspended for up to seventy-two hours if it committed a second offense within three years of the first. A second suspension within five years of the first would result in the possible loss of a broadcasting franchise.
Other provisions of the bill that refer not to the welfare of children but to that of the public in general are equally troubling. I refer, in particular, to provisions that prohibit the transmission of messages that "defend violence or aggression as an easy or appropriate solution to human problems and conflicts;" or that "promote, defend or incite a breach of the legal order in force" (article 27(4)(o) and (q)). Broadcasting specific calls for violence or clearly illegal activities may be legitimately prohibited on public order grounds. However, as we indicated in our recent report on freedom of expression in Venezuela, such powers of restriction should be narrowly circumscribed. Because of the importance to democracy of a full and free public debate, they should be avoided unless a clear and direct relation between the speech in question and a specific criminal act can be established. Restrictions must in all cases be proportionate to the actual threat posed by the targeted expression.
Both offenses cited above incur a fine not exceeding 582 million bolivars at current values, and a suspension on a second occurrence. Under article 28(1), any station that "promotes, defends or incites disturbances of public order; promotes, defends or incites crime; is against the security of the Nation; is anonymous, faces an immediate suspension of up to seventy-two hours. Moreover, as noted above, a second suspension could mean the revocation of a broadcasting license. The effect of these provisions would be to encourage self-censorship, foster a timorous and compliant press, and stifle the public debate.
We are also strongly opposed to imposing the obligation on broadcasters to reveal their sources, as envisaged in article 4 of the bill in the case of news, opinion, and educational programs. A station’s policy on sources should be exclusively a matter of professional editorial judgment, and is not an area for any state intervention whatsoever.
In conclusion, I would strongly urge you to maintain Venezuela’s traditional respect for civil rights and freedom of expression by strictly limiting state intervention in the media to those measures necessary to promote a diverse and vibrant public debate. I therefore request you to ensure that your government withdraw the current bill on Social Responsibility of Radio and Television, and remove from it or revise dramatically the provisions that are incompatible with international standards on freedom of expression. In addition I call on you to end your government's ongoing investigation of the four private television networks previously mentioned.
I note, finally, that given the upcoming electoral processes the debate over media controls is far from academic. Indeed, it is more than ever important for your government to safeguard the internationally-guaranteed right to freedom of expression in Venezuela.
Thank you for your attention to these important matters.
José Miguel Vivanco
Cc: José Vicente Rangel, Vice-President of the Bolivarian Republic of
Cc: Diosdado Cabello, Minister of Infrastructure
Cc: Roy Chadderton, Minister of Foreign Relations
Cc: Nora Uribe, Minister of Communication and Information
Cc: Jesse Chacón, Director, CONATEL
Cc: Willian Lara, Member of Congress
Cc: Juan Barreto, Member of Congress
Cc: Dr. Cesar Gaviria, General Secretary of the OAS
Cc: Dr. Eduardo Bertoni, Special Rapporteur on Freedom of Expression of the OAS