THE LOSS OF BROADCASTING LICENSES
The country's four largest private television networks-RCTV, Globovisión, Televen and Venevisión-are currently under investigation for serious breaches of broadcasting regulations for their coverage of the recent general strike. President Chávez and his cabinet have insisted that if administrative penalties are imposed against the private television networks, Venezuela would be doing no more than protecting the public from the networks' abuse of broadcasting concessions. If the alleged infractions are confirmed, the stations could face fines of 4,000 Bolivars (approximately $2.50), temporary suspension, or the revocation of their broadcasting licenses.19 The insignificant amount of the fines contemplated in the law makes it likely that, unless the ministry is content merely to warn the stations, it could take them off the air, at least temporarily.20
Restrictions on Freedom of Expression under International Law
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right to freedom of expression, specifying that this right includes the "freedom to seek, receive and impart information and ideas of all kinds." Freedom of expression "carries with it special duties and obligations," and therefore may be subject to restrictions "for respect of the rights or reputations of others; for the protection of national security or of public order, or of public health and morals."21
Restrictions on freedom of expression may not be imposed for any purposes other than the above. Moreover, they must be "provided by law" and be "necessary" to attain the purpose in question.22 In practice, this means that restrictions must never exceed the specific purpose served or be so loosely formulated as to "put in jeopardy the right itself."23 In his commentary on the ICCPR, Manfred Nowak notes that "[i]nterference [with free expression] based solely on an administrative provision or a vague statutory authorization violates Art. 19."24
The "special duties and responsibilities" to which Article 19(2) refers may justify intervention by the state to ensure diversity of opinion and information and to prevent the formation of media monopolies. They may not, however, be invoked by the state as an excuse for imposing top-down controls over the media.25
The American Convention on Human Rights also protects freedom of expression, listing the same criteria for restrictions as in the ICCPR.26 Such restrictions must likewise be expressly established by law and be necessary to attain the purpose at hand. Unlike the ICCPR, however, the American Convention prohibits prior censorship, with the exception that access to "public entertainments" may be regulated "for the moral protection of childhood and adolescence."
Broadcasting regulations are specifically covered by Article13(3) of the American Convention, which provides:
The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
Some regulation of television and radio content is permissible under Article 13, such as where regulation serves the public interest of protecting children, safeguarding public health and public order, or preserving standards of decency. The question in the Venezuelan case, therefore, is whether penalizing the private television stations would be an abusive exercise of the legitimate government power to regulate the broadcast media.
The technical part of the current investigations is being conducted by CONATEL, a body under the administrative jurisdiction of the Ministry of Infrastructure, which is responsible for oversight of the telecommunications industry. CONATEL's powers include enforcing norms that regulate the content of radio and television broadcasting, including the Broadcasting Regulations (1984) and the Partial Regulations on Television Transmissions (1992). It is the minister of infrastructure, however, who makes the decision to revoke a broadcasting license. The ministry has 120 working days from the date of the opening of the investigation to reach its conclusions, sanction or exonerate the channels, a deadline that will expire in June 2003.27
Although CONATEL is described formally as autonomous, in practice there are no checks and balances to ensure its independence from the current government. The director general of CONATEL and the four members of CONATEL's executive council are all presidential appointees without fixed tenure. Indeed, all five CONATEL directors may be fired at will by the president.28 This greatly increases the risk that penalties contained in the broadcasting law could be abused to silence opposition criticism.
Any penalties imposed can, however, be appealed to the Supreme Court, which would ultimately have to assess the application of the law according to the free expression standards in the Venezuelan Constitution and the human rights treaties ratified by Venezuela. The affected parties may also apply to the court for a stay of any penalty imposed until a court hearing has been held.
Statements "Inciting Rebellion or Lack of Respect"
The investigations of the four stations have focused on statements by opposition leaders, including dissident military officers, blaming Chávez for the current bitter divisions in Venezuelan society, the alleged collapse of the economy, growing poverty, and deaths in opposition demonstrations. Other statements under investigation include calls to action, for instance, calls to citizens to protest in the streets, or soldiers to disobey orders to fire on civilians. The Ministry of Infrastructure claims that such statements violate a provision of the broadcasting regulations that prohibits the transmission of "messages, speeches, sermons or lectures that incite rebellion or lack of respect for the legitimate institutions and authorities."29
This provision combines two elements that are quite dissimilar. While "rebellion" necessarily implies actions in breach of public order, "lack of respect for government authorities" may imply no more than strongly-worded statements critical of government authorities, which is protected speech under international freedom of expression norms. While the former could be a legitimate ground for restricting free expression, the latter is not. The prohibition of speech that encourages lack of respect for government authorities is an example of an "insult law" (or ley de desacato as such laws are known in Spanish), which penalizes criticism of government authorities considered to be insulting.
The Inter-American Commission on Human Rights issued a special report on insult laws in 1994, concluding that they were incompatible with Article 13 of the American Convention on Human Rights. As the commission explained, in a democracy the honor or reputation of public officials is adequately protected by the same libel laws that protect other citizens. In fact, international jurisprudence recognizes that instead of enjoying special protection, public officials must be prepared to accept a greater amount of criticism, since this is inherent to the exercise of office. By penalizing criticism of government authorities, even when it is unreasonable, unjust, exaggerated, or expressed in biting terms, insult laws have a chilling effect on public debate, and make it more difficult for citizens to hold their governments accountable.
The political opinions expressed in the excerpts cited in the ministry investigation are undoubtedly incendiary in tone and content. Some were angry reactions to the killing of opposition demonstrators. The following examples cited by the ministry are illustrative of the kinds of comment it deems objectionable:
"Mr Chávez, all those ghosts do not exist, the only saboteur, coup-maker and conspirator, confessed and convicted is you!";
"above all, profound indignation and pain that all Venezuelans feel for the massacre that occurred today in this plaza, and for which the only person responsible is the murderer of Miraflores, Hugo Chávez";
"The people cannot obey a government that has committed crimes against humanity like the monstrous case of Puente Llaguno, still unresolved and which has unleashed the most brutal corruption." 30
"In this terrible moment I call on the Venezuelan army (...) not to act in the interests of a tyrant, a henchman, a murderer with the name of Hugo Chávez Frías."
"National Guard, you are still in time to put yourselves on the side of the people, do not obey under any circumstances or for whatever reason any order from your superior to fire on the people, remember about crimes against humanity (...) human rights violations (...)"
The use of angry epithets like "murderer" to describe the head of state may be offensive and unfair, but it would be a dangerous limitation on free speech to ban such language because of its "lack of respect." Even acerbic, unreasonable, and hostile political criticism should be protected from censorship, in order to encourage the free exchange of views necessary to a democracy. Libel laws are sufficient to protect the interests of those who claim to be wronged by speech, and fines or civil damages should be a sufficient deterrent against its abuse.
There are few international decisions which provide guidance as to when expression may be deemed to constitute a threat to public order. According to a leading nongovernmental authority on freedom of expression standards, "what the decisions of the Human Rights Committee and European Court make clear is that a government must support any restriction with concrete allegations of how the accused's exercise of his freedom of expression threatens public order, and that any restriction must be necessary to protect public order."31
It is generally recognized that incitement to violence is an unacceptable abuse of free speech, and may be legitimately restricted on public order grounds.32 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 clear relation between the speech in question and a specific criminal act.
While there are no cases in international law which provide an exact parallel to the situation in Venezuela, international courts have stressed that, to talk of incitement, the connection between speech and criminal act must be direct and specific. 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." 33 However, the tribunal went on to point out that "a particular speech may be perceived as `direct' in one country, and not so in another, depending on the audience," adding that this question must be resolved according to the circumstances of the individual case.
In Incal v. Turkey, the European Court of Human Rights ruled that Turkey had violated Article 10 of the European Convention on Human Rights (which protects freedom of expression) by convicting a Turkish national for writing a propaganda leaflet considered by the government to incite hatred and hostility through racist words and to advocate 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 the prison sentence was "disproportionate to the aim pursued and therefore unnecessary in a democratic society."34
As these judgments illustrate, governments are required to tread with care to avoid trampling on freedom of expression in their zeal to prevent violence or the disruption of public order. The U.S. courts have traditionally imposed demanding obligations in this regard.35 Moreover, because the crucial link between speech and action must be demonstrated by interpretation and argument, it is essential that the procedures under which these cases are examined are transparent and impartial. "Incitement" is a term that lends itself easily to abuse.
Opposition Campaign Spots as Prohibited "Propaganda"
During the stoppage in December 2002 and January 2003, the four private television channels under investigation replaced commercial advertising with hours of opposition messages in support of the strike, transmitted free of charge. In December, for example, the four stations transmitted Democratic Coordinator messages urging Venezuelans to fill the streets in protest against the Chávez government. The government alleges that these broadcasts violated a regulation prohibiting the transmission of "propaganda tending to subvert public or social order," and, furthermore, undermined the right to "free transit" protected in the Venezuelan Constitution.36 By closing down businesses and occupying the streets, the government contended, the strikers were preventing other Venezuelans from going to work and moving freely about the city.
The provision of the broadcasting regulations relied on by the government is so broad and imprecise that it is unclear exactly what kind of contents it prohibits. While broadcasting calls for violence or clearly illegal activities may be legitimately prohibited on public order grounds where requisite causation can be established, restrictions must in all cases be proportionate to the threats posed by the targeted expression. Such grounds may not be cited as a pretext for prohibiting the advocacy of peaceful protest.
Human Rights Watch has viewed one of the messages under investigation, which shows images of huge crowds marching and demonstrating, apparently peacefully, in the streets of Caracas. There were no images of violence or of clearly illegal practices such as the use of vehicles or barricades to block streets. The people shown in the images appeared to be exercising their right to "demonstrate peacefully without arms," protected in Article 68 of the Venezuelan Constitution. They were advocating the exercise of a constitutional right that is also protected by human rights treaties to which Venezuela is a party.37
The government also alleges that a thirty-second tax protest produced by the political party Alianza Bravo Pueblo and broadcast by all four stations was unlawful because it incited viewers not to pay their taxes. The message, including images and voices of different protesters speaking in turn, used the following text:
they [the government] took millions from the central bank / and from the SENIAT / and from PDVSA / and now they want to put their hands in our pockets to charge us more taxes / the economy is on the floor / unemployment is racing out of control / and our money de-valued! / NO to the new taxes! / not one Bolívar more for corruption! / It's an abuse!!!38
While it is a strong protest against new government taxation, the message contains no language that could be interpreted as an incitement not to pay taxes.
A Video as "False, Deceitful, or Tendentious News"
Globovisión and Venevisión are also accused of transmitting a faked video purportedly showing a civilian currently detained in connection with the killing of three demonstrators in the Plaza Altamira on December 6. The video, made by an amateur, apparently shows this man standing close to mayor Freddy Bernal in a pro-Chávez demonstration on the day before the killings. The stations broadcast the video soon after the shootings in the Plaza Altamira to suggest that the government was responsible. Chávez immediately denounced Globovisión publicly for manipulating the news.
In a meeting with Human Rights Watch, Minister of Infrastructure Diosdado Cabello said that the video was clearly a crude fake. CONATEL therefore believed that Globovisión and Venevisión had transmitted "false, deceitful, or tendentious news," which is prohibited by the broadcasting regulations.39
Television regulations in many parts of the world prohibit the transmission of inaccurate or distorted information.40 However, the Special Rapporteur on Freedom of Expression of the Organization of American States has criticized prohibitions of the transmission of "false, deceitful, or tendentious news," finding that they are incompatible with Article 13 of the American Convention on Human Rights. As the rapporteur has explained:
The right to information embraces all information, including that which, as opposed to truthful, may be "erroneous," "untimely," or "incomplete." The doctrine of "truthful" information represents a backward step for freedom of expression in the hemisphere, since the free flow of information would be limited to previous conditioning, which is contrary to the broad conception accorded this right within the Inter-American system.41
The rapporteur concluded that this and other regulations on which the infrastructure ministry's investigation was based were "inconsistent with international standards of freedom of expression."42
The only acceptable standard under which a prohibition of false news might be justified is where there has been a deliberate and malicious misrepresentation of the facts, or a failure to take reasonable steps to establish their accuracy. Under no circumstances should the objective inaccuracy of the facts be considered a basis for punishment. In its defense, Globovisión has argued that it acted in good faith, believing that the contents of the video were genuine and that its dissemination was in the public interest. In order to establish that an offense was committed in this case, the government would have to show that neither of these assertions were true.
Moreover, since it is the government's reputation, rather than that of any third party, that was directly affected by the video, it is essential that a body that is impartial and independent of the government conduct the investigation and determine whether the stations were at fault. As noted above, those responsible for the decision to penalize the stations do not enjoy genuine independence from the government.
Subliminal Insertions and Other Content as "False, Deceitful, or Tendentious News"
In another supposed infraction of the prohibition against transmitting "false, deceitful and tendentious news," RCTV is accused of including subliminal political messages in two children's films. Tapes provided to Human Rights Watch by Jesse Chacón, the director general of CONATEL, show that single frames from opposition propaganda spots appear in two children's films, Casper and The Parent Trap.43
In its defense submitted to the ministry, RCTV has explained the occurrence as a quite common technical error. 44
While the purposeful insertion of the extraneous images, if true, would be another indicator of the extent to which political partisanship has entered Venezuela's media, it does not appear to provide the basis for government action against RCTV. Venezuela has no regulations referring specifically to subliminal content. Instead, the transmissions were questioned for being "false, deceitful or tendentious." It is scarcely credible that the extraneous images, which appeared once in Casper and twice in The Parent Trap, had any significant effect on the public, particularly as broadcasts were saturated with opposition propaganda, including the spots from which the frames were taken, on the day the films were shown. The charge should be dropped unless the investigators have evidence to prove a malicious intent on the part of the channels.
Also held by CONATEL to offend the norm on tendentious content is a political advertisement sequence showing Chávez embracing high government officials shortly after returning to the government palace after the aborted coup. In the background can be heard music by a popular Venezuelan dance band and a voice-over saying "while a few are laughing this December, millions of Venezuelans are suffering." This is clearly protected political comment.
Other Alleged Infractions
The remaining infractions under investigation by CONATEL should be dropped immediately because the regulations used as the basis for the prosecutions prohibit speech that is clearly protected under international norms. These include Article 53 (i) of the Broadcasting Regulations, which prohibits concepts that "affect in some way the reputation or good standing of persons or institutions;" Article 53(m), which prohibits the transmission of "somber and pathetic scenes, sensationalistic narrations or the description of un-edifying events;" and Article 4(d) of the Partial Regulations on Television Transmissions, which prohibits the transmission of "scenes or messages that arouse terror." Much of the content objected to is graphic coverage of street violence during opposition demonstrations replayed over and over. That this material was of public interest and its importance is unquestionable. An example of a spot considered "somber and pathetic" was Venezuela wants life and freedom, showing images of stern-faced children tearing up photographs of violence and suffering in different parts of the world.
19 Article 199 of the Broadcasting Regulations.
20 The transmissions under investigation were monitored and recorded by CONATEL between October 9, 2002 and January 5, 2003.
21 ICCPR, art. 19(3).
23 General Comment 10, Freedom of Expression (Article 19), para. 4, Human Rights Committee, 19th sess., 1983, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, p. 11 (1994).
24 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Germany: N.P. Engel, 1993), p. 351.
25 See ibid., p. 350.
26 American Convention on Human Rights, art. 13.
27 Ley Orgánica de Telecomunicaciones, Art. 186. In June 2000, the government enacted an Organic Telecommunications Law (Ley Orgánica de Telecomunicaciones, LOT), which now governs the telecommunications industry. When the law was under debate, lack of a political consensus on norms regulating television and radio output obliged the government to defer consideration of these issues. Article 208 of the LOT provides that until the approval of a new law on broadcasting content, the existing regulations will remain in force. It refers expressly to the Broadcasting Regulations and the Partial Regulations on Television Transmissions. Human Rights Watch interview with Jesse Chacón, General Director of CONATEL, Caracas, February 11, 2003.
28 Article 40 of the Organic Telecommunications Law, enacted by the Chávez government in July 2000.
29 Article 53(c).
30 Auto de Apertura de Procedimiento Administrativo (Accusation) against RCTV, dated January 17, 2003.
31 Article 19, Freedom of Expression Manual, Chapter 6, "Restrictions Based on Threats to National Security or Public Order," http://www.article19.org (retrieved on March 26, 2003).
32 In the Oslo Accords, for example, Israel and the Palestine Authority agreed to abstain from incitement or hostile propaganda against each other, and to enforce this prohibition on parties under their control. Nevertheless, they also recognized that such enforcement must not infringe guarantees of free expression. A line had to be drawn between protected speech and incitement. Interim Agreement (Oslo 2) of September 28, 1995 (Article XXII).
33 The International Criminal Tribunal for Rwanda, Decision of September 2, 1998, Prosecutor v.Jean Paul Akayesu, Case No. ICTR-96-4-T, 6.6.3: 557. The tribunal was applying article 2(3)(c) of the Convention on the Prevention and Punishment of the Crime of Genocide, which prohibits "direct and public incitement to commit genocide."
34 European Court of Human Rights, Incal v. Turkey, No. 41/1997/825/1031, June 6, 1998, paras 50 and 59.
35 In the United States, for example, the courts have set a high threshold for holding publishers liable for incitement. "The courts are very hesitant to impose liability upon the publisher because it could result in a `chilling effect' on the freedom of speech. Therefore, the courts have not held publishers or other media companies liable unless the incitement was explicit, warnings were not included, or there was clear and present danger of immediate injury." Lloyd Rich,"Publisher Liability: Incitement & Negligent Publication," The Publishing Law Center, 1997, http://www.publaw.com/negligent.html (retrieved on March 12, 2003). The key legal test for incitement was established in the 1969 case of Brandenburg v. Ohio, in which the U.S. Supreme Court reversed the conviction of a Ku Klux Klan leader who had threatened violence. The court concluded that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, June 9, 1969.
36 Reglamento de Radiocomunicaciones, article 53(d); article 50 of the Constitution.
37 Article 21 of the International Covenant on Civil and Political Rights affirms the "right of peaceful assembly," Article 15 of the American Convention on Human Rights recognizes the "right of peaceful assembly, without arms."
38 The SENIAT (Servicio Integrado de Administración Adanuera y Tributaria) is the Venezuelan taxation authority. PDVSA (Petroleos de Venezuela, S.A.) is the state oil company.
39 Article 53(j).
40 In the United States, the Federal Communications Commission (FCC) has stated publicly that "rigging or slanting the news is a most heinous act against the public interest." Nevertheless, in practice, the FCC requires documented evidence of intentional falsification before taking action against a station, such as testimony from "insiders" or persons with direct personal knowledge of intentional falsification of the news. See the discussion on the FCC website: http://www.fcc.gov/cgb/consumerfacts/journalism.html (retrieved on March 13, 2003). In the United Kingdom, the Broadcasting Act (1990) prohibits the broadcasting of news that is not impartial or accurate, but the Independent Television Commission (ITC) relies on a system of voluntary controls and rarely takes enforcement action. An exception was the Kurdish satellite television station Med TV which was fined 90,000 pounds (approximately $140,000) for lack of impartiality in its news broadcasts. The ITC suspended Med TV's license in March 1999, as a result of four broadcasts which it found had included inflammatory statements encouraging acts of violence in Turkey and elsewhere. After hearing representations from the station, the ITC finally revoked its license in April 1999. See Article 19, Media Regulation in the U.K., 2000 (3) http://www.article19.org (retrieved on March 13, 2003). The Canadian Broadcasting Distribution Regulations (1997) prohibit the distribution of "any false or misleading news."
41 "The Special Rapporteur for Freedom of Expression declares concern over prosecution of a television channel in Venezuela," Press release, Pren/45/01, Washington D.C., October 29, 2001. The case involved an earlier investigation of the Globovisión channel for inaccurate reporting of the murder of some Caracas taxi-drivers. It was dropped after the channel apologized for the error.
42 "Special rapporteur for freedom of expression expresses serious concern over initiation of administrative proceedings regarding television channels in Venezuela ," press release, February 6, 2003. http://www.cidh.org/Relatoria/English/PressRel03/PRelease6803.htm (Retrieved on April 30, 2003).
43 In the United States, the FCC has defined subliminal advertising as "any technique whereby an attempt is made to convey information to the viewer by transmitting messages below the threshold level of normal awareness." There is no formal prohibition of subliminal advertising in the United States. According to a policy statement issued by the FCC in 1974: "the use of subliminal perception [technique] is inconsistent with the obligations of a licensee, and we take this occasion to make clear that broadcasts employing such techniques are contrary to the public interest. Whether effective or not, such broadcasts clearly are intended to be deceptive." However, a member of the FCC stated in September 2000 that "policy statements are not enforceable rules. Nor would it be appropriate for the Commission to fine a person for failure to comply with a policy statement." He further noted that "the FCC has no rules on what is, or is not, a `subliminal message.'"
The FCC was involved in a controversy over the alleged use of subliminal advertising by the Republican National Committee during the 2000 presidential campaign. Two senators alleged that a Republican Party advertisement displayed the word RATS for a fraction of a second during a critique of Vice-President Gore's prescription drug proposal. See "The FCC's Investigation of `Subliminal Techniques:' From the Sublime to the Absurd," press statement by FCC Commissioner Harold Furchtgott-Roth, September 19, 2000 http://www.fcc.gov/Speeches/Furchgott_Roth/2000/sphfr011.html (retrieved on March 14, 2003). See also Press Statement of Commissioner Gloria Tristani, March 9, 2001, criticizing the FCC for improperly dismissing the senators' request to investigate the complaint. http://ftp.fcc.gov/Speeches/Tristani/Statements/2001/stgt123.html (retrieved on March 14, 2003).
44 Human Rights Watch telephone conversation with Osvaldo Quintana, legal adviser to RCTV, March 27, 2003.