President Chávez and his supporters in the Venezuelan Congress have undermined freedom of expression through a variety of measures aimed at influencing the control and content of the countrys mass media. They have extended and toughened penalties for speech offenses; implemented a broadcasting law that allows for the arbitrary suspension of channels for a vaguely defined offense of incitement; limited public access to official information; and abused the governments control of broadcasting frequencies to punish stations with overtly critical programming.
After nine years during which the country has been polarized between Chávezs supporters and detractors, Venezuela still enjoys a vibrant public debate in which anti-government and pro-government media are equally vocal in their criticism and defense of Chávez. However, in its efforts to gain ground in this media war, the government has engaged in discriminatory actions against media airing opposition viewpoints, strengthened the states capacity to limit free speech, and created powerful incentives for government critics to engage in self-censorship. Should the government choose to utilize the expanded speech offenses and incitement provisions more aggressively to sanction public expression, the existing political debate could be severely curtailed.
Chávez and his supporters have attempted to justify media restrictions as a response to what they consider to be irresponsible reporting and excessively partisan coverage by journalists and broadcasters. They accuse opposition media of conspiring to remove Chávez from office, and even participating directly in the 2002 short-lived anti-Chávez coup. They also justify the measures as being part of a broader effort to democratize the media so that it reflects viewpoints that were largely excluded from the commercial media in the past.
States have a right to sanction media that incite violence, the commission of crimes, or breaches of public order. However, under international norms on freedom of expression, broadcasting regulations must be precisely defined in order to avoid overbroad or arbitrary interpretation by officials that constrain free expression and the publics access to information and opinion. Permissible restrictions on speech do not include sanctions for expressing critical opinions of government officials, however offensive they may be. Governments are also fully justified in seeking to regulate the concentration of media ownership and in backing public service and community outlets in order to promote a more diverse and plural public debate. However, governments may not abuse their control of broadcasting frequencies to discriminate against outlets whose editorial line is not to their liking.
The Venezuelan governments media democratization efforts have produced positive results in at least one area. By licensing and giving financial support to hundreds of start-up community broadcasting ventures, the Venezuelan government has taken a leading role in the region in promoting local radio and TV stations.
However, the governments legitimate efforts to promote alternative media at the local level have been overshadowed by its efforts to restrain critical opinion. Chávez and his supporters in the National Assembly have resorted to actions and measures, aimed at influencing large-scale print and broadcast media, that run counter to international norms and threaten freedom of expression. Specifically, they have:
Chávez and his supporters in the National Assembly have expanded the scope of laws punishing expression deemed to insult public officials and established draconian penalties for defamation, including increased prison sentences and onerous fines. Under reforms to the criminal code enacted in 2005 they increased the number of public officials benefiting from the protection of insult laws and greatly increased penalties, including prison terms, for criminal defamation. These measures are inconsistent with Venezuelas obligations under international legal norms of press freedom.
Journalists working for opposition media have borne the brunt of prosecutions under these laws in recent years, generating pressure on these media to tone down criticism. Were the government to aggressively pursue prosecutions under the new provisions, it would dramatically shrink the space for free expression in Venezuela.
The 2004 Law on Social Responsibility in Radio and Television (hereinafter Social Responsibility Law), which replaced broadcasting regulations enacted in 1984, expanded the scope of an already broad prohibition on incitement and established severe penalties for broadcasters that violated it. Under the 2004 law, broadcast media can face suspension and ultimately revocation of their licenses for broadcasting material deemed to promote, justify, or incite war, breaches of public order, or crime. The transmission of such material can also be banned under this law. The broad and imprecise wording of the incitement provisions, the severity of the penalties, and the fact that the law is enforced by an executive branch agency all increase the broadcasts medias vulnerability to arbitrary interference and pressure to engage in self-censorship.
On several occasions officials have warned channels covering protests or showing repeated images of violence in demonstrations that they could be sanctioned under the incitement provisions. Given that government officials often claim there are subversive intentions behind critical news coverage, journalists and broadcasters have good reason to fear that these loosely-worded provisions could be used to sanction them for legitimate news coverage.
Government officials routinely deny or fail to respond to requests for information by the press and the public. This lack of transparency contravenes Venezuelas obligation under international law to guarantee the right to seek, receive, and impart informationwhich includes a positive obligation to provide access to official information in a timely and complete manner. Access to official information is crucial to ensure democratic control and transparency, and to promote accountability within the government.
While the right to official information is recognized in Venezuelas 1999 Constitution, the government has failed to promote legislation to define the grounds under which information may legitimately be denied. It has also failed to provide a mechanism to hold accountable those officials who arbitrarily reject or ignore requests for information.
On numerous occasions since the 2002 coup, Chávez has personally threatened channels sympathetic to the opposition with revocation of their broadcasting licenses. Such threats appear to have led to editorial changes by some broadcasters, creating a media landscape more favorable to Chávez. In procedures lacking transparency, the national broadcasting authority blocked applications for frequencies by Globovisión, a news channel that refused to yield to such pressures, while granting them rapidly to newly created state channels.
The most flagrant example of this discriminatory policy was the governments treatment of Radio Caracas Television (RCTV), Venezuelas oldest television channel and a constant critic of Chávez. On his orders, the government singled out RCTVone of the four channels Chávez had accused of involvement in the coupby refusing to renew its broadcasting license. At the same time, it renewed that of Venevisión, a rival channel that he had also repeatedly accused of involvement in the coup but had since cut its overtly anti-Chávez programming.
Whereas Chávez faced an almost entirely hostile broadcast media early in his presidency, he has since significantly shifted the balance of media forces in the governments favor. This shift has been accomplished by stacking the deck against critical opposition outlets while advancing state-funded media that are heavily slanted in favor of the government. For example, TVESthe state-funded channel created to occupy the frequencies vacated by RCTVhas proven to be no less partial in its pro-Chávez coverage than other state channels, despite much fanfare that it would be Venezuelas first genuine public service channel.
Instead of exercising its crucial role as guarantor of freedom of expression, the Supreme Court has effectively backed the government in these policies. It has declared insult laws to be constitutional and declared that the findings of the Inter-American Commission of Human Rights are not binding on Venezuela if they conflict with the Constitution. Most notably, the court failed to protect the right to freedom of expression and respect for due process in the RCTV case. The court requisitioned RCTVs transmitterswithout a time-limit or compensationfor use by a newly created state channel, and yet failed to address the central human rights issues of freedom of expression, due process, and discrimination affecting RCTVs journalists and owners.
The print and broadcast media have been the site of intense political struggle throughout the Chávez presidency. Both the government and its critics have used the media at their disposal as tools to attack each other and to mobilize their own supporters. Media coverage has tended to be extremely partisan on both sides.
During the early years of Chávezs government, four private television channelsRadio Caracas Television (RCTV), Venevisión, Televen, and Globovisióndominated the public airwaves. Until 2004, all four stations sided openly with the opposition, providing uniformly partisan and anti-Chávez news coverage and commentary.
This partisanship was most evident during the short-lived 2002 coup. All four channels gave extensive coverage to the opposition march on April 11, but on April 12 and 13, 2002after Chávez had been taken by the military to an unknown destination and his supporters were filling the streets demanding his returnthey substituted cartoons and old movies for news coverage.167
The news blackout of Chávezs return to power was followed by highly partisan coverage of the oil strike and opposition marches in December 2002 and January 2003, when opposition stations replaced commercial advertising with donated opposition political spots calling on people to join the protests. Apart from slanted news coverage, the private stations had interview programs dedicated to discrediting Chávezs policies, in which pro-government experts were rarely invited to participate.
The print media was also predominantly in the opposition camp. Two long-established daily newspapersEl Universal and El Nacionalwere persistent critics, and another critical paper, Tal Cual, although with a much smaller circulation, also had considerable influence.
During the early years of his government, Chávezs administration had only one national television channel at its disposal (Venezolana de Televisión, VTV-Channel 8). Although VTV is a state channel with a mandate to be non-partisan, under Chávez it has been as partisan and biased as its private counterparts.168
Chávez ran and continues to run his own television and radio show on VTV and National Radio, Hello President, as a vehicle to communicate directly with his supporters. Hello President became his preferred venue for announcing new policy initiatives and he often uses it to challenge his media critics and political enemies.
One state television program openly attacks the opposition and the governments press critics. A nightly show on VTV, La Hojilla (The Razorblade), has used secretly recorded conversations, private documents, and similar material to expose or ridicule media critics. Chavéz often talks live on the phone to its host, Mario Silva, adding his own observations to Silvas attacks.
Chávez also made up his media deficit by using presidential authority to order all stationsincluding private television and radio stationsto interrupt programming without prior warning and broadcast his speeches and other government events live, often for hours on end, at peak viewing hours.169 In the nine years of his government, the president has ordered 1,710 such mandatory broadcasts, totaling 1,048 hours or 43 days of uninterrupted transmission, according to a recent study.170
In the print media, two privately owned newspapers, Venezuelas largest selling daily, Últimas Noticias, and the Zulia-based newspaper Panorama, have been largely sympathetic to Chávez and his government.
In addition to the opposition and government media, a vibrant community media sector has emerged since the events of April 2002. After decades of being shut out by the mainstream media, a network of community activists seized upon Chávezs 1998 triumph to push for state support for community radio initiatives. They worked with Chavista lawmakers to draft legislation on alternative media that is among the most advanced in the hemisphere.
The Venezuelan law establishes a duty on the government to support community radio stations by granting licenses and providing seed capital, infrastructure grants, and training.Although the government was slow to implement the law, the licenses and financing began to flow after community radios proved their political value during the 2002 coup by breaking a news blackout by the private media and summoning Chávez supporters to the demonstrations that helped return him to power. By August 2007, 266 community radio stations and more than 30 community television outlets were licensed and operating, according to the National Telecommunications Commission (CONATEL).171
After the 2002 coup was overturned, Chávez and his supporters adopted an increasingly adversarial approach to the private media. They accused the United States of leading the international media and their Venezuelan counterparts in a media war to smear and destroy his government. 172
Government officials vigorously engaged the media enemy. The communication and information minister said in an interview that the government was waging a battle for the hearts and minds of the population, with the aim of gaining state hegemony in communication and information.173 The minister described VTVs program La Hojilla as a tool for the media war, whose purpose is to dismantle the false opinions created by the private media which hope to fool the people and destabilize the revolutionary process.174 In his speeches Chávez demonized his media critics as fascists, terrorists, enemies of the people, liars, coup-mongers, immoral, trash, and laboratories of psychological warfare, among other things.175
These tirades, often delivered in speeches all media were obliged to transmit, fueled street violence between Chavezs supporters and opponents. In the months following the reversal of the coup, Chávez followers physically attacked and threatened scores of journalists and cameramen working for opposition outlets.176
Although the number of such incidents declined after 2004, journalists working for media identified with the opposition have remained vulnerable to physical attack and threats of violence. The freedom of expression NGO Espacio Público reported 20 cases of aggression and intimidation of journalists during 2007, including three cases in which journalists cars were reportedly set on fire while parked outside their homes.177 In July 2008, as the campaign for the November 2008 regional elections gathered steam, press monitoring groups reported several new cases.178 Such attacks are encouraged by the fact that those responsible for previous incidents have rarely, if ever, been identified and prosecuted. The Inter-American Court of Human Rights is currently considering the cases of 44 journalists and workers at Globovisión and of 20 journalists and workers at RCTV who allege they were victims of physical attacks or threats, among other violations of free expression.179
Alongside its verbal onslaught against the private media, the government expanded the number of outlets under its control. In addition to VTV it now also controls or owns three recently created channels: Vive TV, a cultural and educational channel founded in 2003; Telesur, an international cable channel which transmits nationally on public airwaves using the frequency once occupied by the private Canal Metropolitano de Televisión (CMT);180 and Venezuelan Social Television (Televisora Venezolana Social, TVES), set up in May 2007 to occupy RCTVs nation-wide frequencies. In addition, the National Assembly, now composed exclusively of pro-Chávez legislators, has its own cable television channel, Asamblea Nacional Televisión (ANTV), which transmits on public airwaves in Caracas.181 The more recently created public stations rarely transmit programs challenging the government view.182
In addition to creating new state-financed channels, Chávez and his supporters have taken steps to limit broadcasting they deem unacceptable. The Social Responsibility Law introduced wide-ranging restrictions on the content of radio and television broadcasting. As this chapter details below, these legal constraints gave the state tools with which to interfere in free expression and intimidate media critics.
In 2005 two of the stations that had previously given full support to opposition campaigns, Venevisión and Televen, pulled controversial opinion shows and ceased to engage in overtly anti-Chávez commentary. Only RCTV and Globovisión retained their clearly critical editorial line.
Despite his repeated threats, Chávez refrained for years from closing down any media outlet. Indeed, prior to 2007, the only interruptions of broadcasting came during the short-lived coup of 2002, when coup supporters backed by police shut down VTV and National Radio and the police raided three community television and radio stations.183
However, in December 2006, Chávez abruptly announced that he would not renew RCTVs 20-year broadcasting license when it expired the following year. Despite a national and international outcry, RCTVthe only remaining channel left on nation-wide public airwaves with an overtly critical line was taken off the air on May 27, 2007. Its frequencies and national network of transmitters were taken over by a new government-funded channel, TVES, which has failed to deliver the plural and balanced public service broadcasting the government promised it would. RCTV was obliged to convert to cable in order to continue broadcasting.
Although the government has significantly shifted the constellation of broadcast media forces in its favor, political opponents continue to have access to critical outlets, albeit fewer in number. They include the cable channel RCTV International (the subscription channel through which RCTV reinstated its transmissions), Globovisión, Unión Radio, and several major national newspapers.184
Nevertheless, as the rest of this chapter shows, the government now has an array of legal weapons with which it can clamp down on government critics at any moment. By promoting self-censorship, these laws constrain the expression of critical opinion, even when they are not rigorously enforced. The governments discriminatory use of its control of the airwaves and its repeated threats to use this control against critical channels also represent significant threats to freedom of expression.
In March 2005, Chávez and his supporters in the National Assembly expanded existing speech offense laws and established draconian penalties, including increased prison sentences and onerous fines for expression deemed to offend government officials.
These measures are inconsistent with international legal principles on press freedom. International human rights bodies have long called on governments around the world to decriminalize speech that may displease public officials so as to allow the press to effectively monitor government actions. But Venezuela has gone in the opposite direction. It has reaffirmed and extended insult laws (desacato)which directly violate international freedom of expression normsand introduced prison sentences of up to four years for defamation.
Insult laws (known in Spanish as leyes de desacato), which criminalize expressions deemed to offend the honor of public officials and institutions, directly contravene international human rights norms.185
The Inter-American and European systems on human rights both consider insult laws incompatible with the free debate essential to democratic society. In a landmark 1995 report, the Inter-American Commission on Human Rights (IACHR) concluded that these laws are incompatible with Article 13 of the American Convention on Human Rights, which protects the right to freedom of thought and expression. The commission wrote, [t]he special protection desacato laws afford public functionaries from insulting or offensive language is not congruent with the objective of a democratic society to foster public debate. It also noted that in democratic societies, political and public figures must be more, not less, open to public scrutiny and criticism. Since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance for criticism. The commission also noted that insult laws have a chilling effect, since the fear of criminal sanctions necessarily discourages people from voicing their opinions on issues of public concern particularly when the legislation fails to distinguish between facts and value judgments.186
More recently, in Palamara Iribarne v. Chile (2005), the Inter-American Court of Human Rights held that in the case of public officials, individuals who perform public services, politicians, and government institutions a different threshold of protection should be applied, which is not based on the specific individual, but on the fact that the activities or conduct of a certain individual is of public interest.187
The European Court of Human Rights has stressed that the protection of freedom of expression must extend not only to information or ideas that are widely accepted, but also to those that "offend, shock or disturb."188 As the European Court noted in a case involving a politician accused of insulting the government of Spain, "Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society."189
In a joint declaration, the Special Rapporteurs on Freedom of Expression of the United Nations, the Organization for Security and Cooperation in Europe, and the Organization of American States recommended in 2000 that laws which provide special protection for public figures, such as desacato laws, should be repealed. The experts also recommended that the State, objects such as flags or symbols, government bodies, and public authorities of all kinds should be prevented from bringing defamation actions.190
International rights bodies also hold that defamation involving public officials should be decriminalized in the interest of promoting the vibrant public debate necessary to a democracy.191 The Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights in 2000 assert that protection of the reputation of public officials should be guaranteed only by civil sanctions.192 In other words, no one should go to prison for criticizing or offending a public servant. The Inter-American Court of Human Rights has held recently that the use of criminal proceedings for defamation must be limited to cases of extreme gravity, as a truly exceptional measure where its absolute necessity has been demonstrated, and that in any such case the burden of proof must rest with the accuser.193
The Inter-American Commission on Human Rights Declaration of Principles on Freedom of Expression also holds that for a court to establish defamation it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.194
Even while decriminalizing defamation is the more urgent task, excessive civil damages can also close down freedom of expression and should be prohibited. As the joint declaration of the UN, OSCE, and OAS experts stated, civil sanctions for defamation should not be so large as to exert a chilling effect on freedom of expression and should be designed to restore the reputation harmed, not to compensate the plaintiff or to punish the defendant; in particular, pecuniary awards should be strictly proportionate to the actual harm caused and the law should prioritize the use of a range of non-pecuniary remedies.195
In his report covering the Americas for 2006, the Special Rapporteur on Freedom of Expression of the OAS concluded that the continuous use of criminal trial proceedings against journalists for desacato and defamation demonstrates, in the great majority of cases, both State intolerance of criticism and the use of these to frustrate investigations of acts of corruption.196
Under Chávez, Venezuela has bucked the international trend to eliminate insult laws. Ever since its ground breaking report on insult laws was published in 1995, the Inter-American Commission on Human Rights has urged OAS member states to repeal these provisions from their criminal codes. Ten member states of the OAS, including Argentina, Chile, Peru, Paraguay, and Panama have now done so. 197
Venezuelas Supreme Court, however has adopted a position contrary to this trend that openly defies international norms. In 2003, in response to an appeal against speech offense provisions of the criminal code filed by a human rights lawyer, its constitutional chamber ruled unanimously that Venezuelas insult provisions were constitutional. In refusing to align Venezuelan constitutional protection of freedom of expression with international standards it noted that the IACHRs recommendations were not binding on the state, and expressed the opinion that applying the norms set out by the IACHR could even endanger it and threaten its independence if implemented.198
Rather than eliminate Venezuelas insult laws, Chávez and his supporters enacted legislation in 2005 that increases the range of public officials who may resort to insult prosecutions when faced with unfavorable press. Before the legislature enacted reforms in March 2005, only the president, the vice-president, government ministers, state governors, mayors, and justices of the Supreme Court could initiate prosecutions for an insult. The reformed code added to the list members of the National Assembly, electoral council officials, the attorney general, the public prosecutor, the human rights ombudsman, the treasury inspector, and members of the military high command. 199 In fact, all top Venezuelan officials now enjoy enhanced legal protection against media criticism.
Because the crime of insult does not require that the speaker or writer accuse an official of specific actions but merely that he or she use language that subjectively offends or disrespects a public official, defendants in insult prosecutions cannot escape conviction by proving the truth of what they assert. Whether the assertion amounts to an insult and how serious it is are matters left entirely to the opinion of the court. The wording of the law (offends by word or deed, or shows lack of respect in any other way)200 is vague, broad, and subjective, making legal defense against a charge of this nature difficult. Journalists must choose their language carefully and conservatively to avoid offending the officials they write about.
The March 2005 reforms left unchanged a separate insult provision that penalizes insults directed not at officials but at institutions of state (an offense known as denigration [vilipendio]in Venezuela).Under this article, people held to have insulted the legislature, the Supreme Court, the cabinet, state legislative councils, or the higher courts can go to prison for up to 15 months.201 The notion that a state institution can bring insult actions resulting in prison sentences is a dangerous interference with freedom of expression that could seriously hamper the press from serving its role as watchdog in a free society.202
All insult crimes in Venezuela carry prison sentences, and the higher the office, the greater the penalty. This reverses the democratic principle that public officials with greater public roles and responsibilities must be open and liable to greater degrees of criticism than ordinary citizens. Penalties range from a maximum sentence of 20 months in the case of justices of the Supreme Court, legislators, and the government officials listed above except for mayors, to 40 months in the case of the most serious offense against the president.
Venezuelan law also contradicts international norms by establishing that prison sentences can be imposed on anyone who imputes to somebody a specific act that may expose them to public disdain or hatred, or harm their honor or reputation.203 Rather than eliminate these penalties, Chávez and his supporters in the legislature have increased them significantly.
While some governments in the region are considering legislation to decriminalize defamation in the case of public officials or persons in the public eye, Venezuela has once again moved in the opposite direction.204 Amendments enacted in March 2005 increased the minimum penalty for defamation from three months of imprisonment to one year. The maximum was increased from thirty months to four years if the offense is committed in a public document, in writing or drawings distributed or exposed to the public, or through other forms of publicity. In addition, the new article prescribes substantial fines not present in the previous law, ranging from 100 tax units to 2,000 tax units (US$2,145 to US$42,898, at current rates).205
It is also a form of defamation, injuria (roughly translated as libel), to offend the honor, reputation and decorum of someone without attributing to them a specific act.206 Under the new legislation the minimum prison sentence for this offense rose from three days to six months, the maximum from three months to two years. Fines, which were previously insignificant, were increased from a minimum of 50 tax units to a maximum of 500 tax units (US$1,071 to US$10,710 at current rates).207
In addition, the reforms to the criminal code provide that the statute of limitations of one year that applies to defamation cases, and of six months in cases of injuria, may now be interrupted by any action of the plaintiff.208 This makes it easier for the litigant to extend the period of investigation. A notable feature of defamation prosecutions in Venezuela is that many stay open in the courts without progress or conclusion for years on end. These lengthy proceedings can take a heavy toll on the professional and personal lives of journalists.209
While these speech laws have not been enforced systematically, they are more than just a latent threat. As the following cases demonstrate, speech offense laws have been employed against journalists in a wide array of cases.
The prosecution of Napoleón Bravo for offending the honor of the Supreme Court exemplifies an insult prosecution that violates article 13 of the American Convention on Human Rights. In February 2006, at the request of the Supreme Court, the state prosecutor opened legal proceedings against José Ovidio Rodríguez Cuesta (a television celebrity known in Venezuela as Napoleón Bravo) for insulting the court.
The alleged offense occurred in September 2004 when Bravos political program, 24 Hours, was covering the hunger strike of a sex abuse victim who was protesting the courts long delay in resolving her case. While the camera showed images of the protester, Bravo suggested, apparently with ironic intent, that the court served no purpose and should be made into a brothel. The then-chief justice asked the attorney general to open proceedings against Bravo. The prosecutor formally accused him of insulting the courts honor.210
Bravo was subjected to a two-year investigation followed by two years of proceedings in the Venezuelan courts. The case against him remains open today.211
A constitutional lawyer and academic, Tulio Álvarez was convicted of criminal defamation for publishing an article in which he cited an official report that he claimed implicated a congressman in financial mismanagement. He was convicted in February 2005 and given a suspended sentence of two years and three months imprisonment. (Under Venezuelan law, those sentenced to not more than five years in prison for a first offense may apply to a court for their prison sentence to be conditionally suspended.212)
Álvarezs article, published in a May 2003 edition of the newspaper Así es la Notícia, suggested that a prominent congressman had used funds from the savings of National Assembly employees and former employees for other congressional purposes, leaving an unpaid debt to the employees savings fund of 1,707,723,317 Bolívares (about US$792,000). Álvarez was representing the National Assembly employees union in a legal case against the congressman, and had access to a report on the case issued by the superintendency of savings banks, a body attached to the Ministry of Finance.
In December 2003, the congressman filed a complaint against Álvarez for defamation. A year later, the court barred Álvarez from leaving the country as a precautionary measure to prevent him escaping justice. In February 2005, the court convicted Álvarez and sentenced him to two years and three months in prison, suspended.213 The court found that Álvarez had defamed the congressman by insinuating his guilt because the report he cited only established that the money owed to the savings bank had not been paid, and not that the congressman was guilty of malfeasance.214
Julio Balza, a veteran journalist who writes a weekly column for the opposition newspaper El Nuevo País, has faced four defamation prosecutions since 2004 for his criticism of public officials.
In July 2006 Balza was given a suspended prison sentence of two years and eleven months and fined about US$12,500 for calling a government minister imprudent, mendacious, negligent and incompetent after the viaduct linking Caracass Maiquetía airport with the capital was taken out of service in March 2006 due to risk of its collapse.215 The minister had headed long and unsuccessful efforts to reinforce the structure, which Balza had criticized in the paper. The Caracas Appeals Court confirmed the sentence in December 2006, and in April 2007 the Supreme Court declared a final appeal inadmissible.216 In this case the three impugned articles made no specific accusations but simply expressed a strongly worded opinion about the ministers competence.
In previous years, Julio Balza had been accused three times of defamation by officials of the Maiquetía airport authority for accusing them of corruption. Two of the cases were settled out of court. In one case, Balza agreed to publish three successive articles apologizing for the harm caused to the institution, and to write to its director promising not to attack the airports honor and reputation in the future.217
In May 2006, a Caracas court sentenced journalist Henry Crespo, a columnist for Las Verdades de Miguela periodical with a long record of investigating corruption cases and political intrigueto an 18-month suspended jail term for defaming the governor of Guárico state.
Las Verdades de Miguel had run a series of reports on a congressional investigation into financial irregularities involving four projects undertaken by the Gúarico state government.218 The court considered that a comment cited by Crespo that the governors actions were a compendium of the criminal code was defamatory, as were other articles Crespo wrote in Las Verdades de Miguel denouncing corruption in government projects.219
The governor and two close political associates also filed a defamation action against the magazines editor, Miguel Salazar, for publishing articles about alleged corruption and accusing the governor of hiring someone to kill him. Salazars trial began in April 2007 and continued as of this writing.
The only person convicted of a speech offense in recent years who has served prison time was not a journalist but rather a retired military officer who was prosecuted under the military criminal code for a comment he made on a television talk show.
Gen. (Rtd.) Francisco Usón, an outspoken critic of the Chávez government, was sentenced by a military court in November 2004 to five years and six months in prison for insulting the armed forces.220
Usón was convicted for comments he made in April 2004 as a guest on Televens television show La Entrevista (The Interview), hosted by opposition journalist Marta Colomina.
Part of the interview concerned events in the Mara Fort (Fuerte Mara) in February 2004, when eight soldiers being held in a punishment cell were severely burned. Two of them later died of their injuries. The soldiers deaths caused an outcry in the opposition press. A day before the program was aired, a prominent critic of the government, Patricia Poleo, had published an article alleging that the fire had been caused by a flamethrower. Interviewing Poleo and Usón, the programs host, Marta Colomina, asked Usón for a technical opinion on the use of a flamethrower. He said that to use it a mixture of gasoline and napalm had to be prepared beforehand, implying that if a flamethrower had been used such an action would have been premeditated. If that turns out to be true, it would be very, very serious, he said.221
Although he had retired from the army a year before the interview, Usón was charged under an article of the military criminal code that punishes anyone who insults, offends or disparages the armed forces.222 In November 2004 a military court convicted Usón in a rapid trial that was closed to the public. Over the next few months, both a Martial Court and the Supreme Court rejected Usóns appeals against the sentence.223 Usón was released on parole in December 2007.
In some cases, prosecutors investigating alleged abuses or cases of corruption reported by journalists subsequently level charges at the journalists, even though the officials accused in their articles did not sue for defamation.
Such was the case with Marianella Salazar, who faces criminal charges of maliciously accusing a public official (slander, calumnia)more than four years after the publication of the article in dispute. In Venezuela, to engage in malicious accusation (calumnia) is to accuse someone of a crime in the presence of a judicial authority knowing the accusation to be false.224
The article, published in the newspaper El Nacional in June 2003, was about an allegation that two government ministers were involved in a plan to acquire electronic spying equipment from a European defense agency. The article described an alleged dispute between them over lucrative commissions expected from the deal.225 In accordance with a procedure laid down in the law, the two ministers asked the public prosecutor to investigate the allegations made by Salazar in order to clear their names, but did not sue her for defamation.226 After interrogating Salazar and two men named in the article, the prosecutor concluded that the author had been unable to supply proof and that her allegations were unfounded.
Subsequently, the prosecutor accused Salazar of calumnia because she had shown him, in the course of his investigation, an article by a third party that had corroborated her story.227 The case brought by the prosecutor against Salazar was still open at this writing, although the prosecutors accusation presents no evidence to support the notion that Salazar knew the information to be untrue.228
In October 2004 another prosecutor opened criminal proceedings against an investigative journalist after examining allegations she made against several government officials and finding them to be without substance. The prosecution again originated in an investigation requested by government ministers in reaction to allegations, in this case published by opposition columnist Ibéyise Pacheco in the newspaper El Nacional.229
Like Salazar, Pacheco was prosecuted not for these allegations but for evidence she submitted to the prosecutor in the course of his investigation, in her case for perjury. The investigation was eventually annulled on due process grounds.230
In a May 2003 article entitled Between Delinquents, featured in El Nacional,Pacheco published an alleged conversation between Hugo Chávez, Vice-President José Vicente Rangel, other officials, pro-government legislators, and military officers that supposedly took place in Miraflores (the presidential palace) the previous February, two months before the short-lived coup. Among the plans allegedly approved was one to kidnap union leader Carlos Ortega and blame the crime on an extreme left-wing Chavista group, another to intimidate the press, and another to organize fake terrorist attacks and assassinate opposition figures.231
After interviewing all the alleged participants in the conversation, the prosecutor concluded that it was fictitious, and closed the investigation. The prosecutor then concluded that Pacheco had lied during the investigation about the transcription of an alleged tape recording on which the article was based.232 Based on a discrepancy between her version and the evidence of a fellow journalist, the prosecutor opened proceedings against Pacheco for perjury that lasted for two-and-a-half years.233
Her lawyers filed an appeal to the Supreme Court alleging that Pachecos rights to due process had been violated. They argued that she had been charged without having legal representation and being given an opportunity to defend herself, in violation of Venezuelan law.234
Finally, in April 2006, the Supreme Courts Cassation Chamber granted the appeal and annulled the trial, finding that the prosecutor had failed to ensure that Pacheco was legally represented at the hearing at which she was charged, and moreover had denied her the right to be heard.235
Most of the journalists who have faced legal action for their reporting have been outspoken Chávez opponents, or have worked for strongly antigovernment media. However, investigative reporters working for pro-government media have not been immune from legal intimidation by government officials. In March 2007, Luz Mely Reyes, an investigative reporter for the generally pro-government tabloid Últimas Noticias, received a letter from a cabinet minister threatening to have her prosecuted for conspiracy for a series of reports alleging irregularities in a major government development project.
On March 11, 2007, Reyes published the first of a series of weekly articles in the newspaperdescribing how contracts for government development projects had been traded in exchange for million-dollar commissions, with an estimated loss to the state of about US$117 million.236 The projects were part of a joint development plan with Iran to install corn and milk production facilities in different parts of Venezuela. Execution of the plan was entrusted in March 2006 to the Ministry of Communal Economy, and was supposed to take six months. However, by the time the articles appeared none of the projects were operational and widespread management irregularities had been detected. At the center of the controversy were various successive communal economy ministers.
On March 18 during a Hello President transmission from the state of Barinas, Chávez complained about a reference to Iran in the title of one of the articles, accusing the paper of being manipulated by powerful groups in the country, which he did not identify.237
Reyes and the papers director, Eleazar Díaz Rangel, later received a letter from the communal economy minister, threatening both of them with prosecution for criminal conspiracy under a provision of the criminal code that punishes those who "conspire or rebel in order to violently change the Constitution of the Bolivarian Republic of Venezuela."238 This grave political crime carries a prison sentence of up to 24 years. The minister expressed concern that the article could be part of a campaign destined to encourage disloyal competition or simply cause economic damage to people, enterprises and institutions.239
Although the Attorney Generals Office never took up the case, the ministers threatening letter was itself problematic, since threats by officials of legal action in response to publications can lead to media self-censorship and hence indirectly limit freedom of expression.
In February 2007, a court specializing in child welfare cases fined author Laureano Márquez for publishing a letter to Chávezs nine-year-old daughter Rosinés, satirizing Chávez's authoritarian style of government, which appeared on the cover of the newspaper Tal Cual on November 25, 2005. The newspapers director, Teodoro Petkoff, was also fined. The fines totaled nearly US$50,000.
The imaginary letter asked Chávezs daughter to persuade her father to soften his attacks on his political opponents.240 A child welfare judge ruled that it violated the childs right to honor, reputation, and privacy, which are protected under the Organic Law for the Protection of Children and Adolescents (LOPNA) as well as Venezuelas law approving the United Nations Convention on the Rights of the Child.241
But more was at stake than the childs privacy. The court found that the article incited disrespect for symbols of the nation and for her father, since, regardless of the office he holds, he deserves his childrens respect, and a medium of communication should not encourage a young girl to despise her father, or involve a girl in political argument concerning the post that he holds, nor does the girl need to have direct knowledge of the political objections of the citizens .242 The judge concluded that the childs rights to honor, peer-group relations, family life, and social development had been gravely affected.
In the newspapers defense Petkoff claimed that it was Chávez himself who had made his daughter into a public figure by mentioning her repeatedly in his speeches. A few days before the article appeared, Chávez had suggested in his Hello President broadcast that the national coat of arms should be changed because his daughter had pointed out that the white horse on the emblem was looking the wrong way, an event which in fact came to pass.243
Article 65 of the LOPNA protects childrens right to honor, reputation, self image, private life, and family privacy, which may not be subject to arbitrary and illegal interference.244 While the judge found that the article had seriously compromised these rights, she did not explain how she reached this conclusion. According to her finding, there is no report to determine how her rights were damaged, what were the disturbances in her family life, what was the harm caused, but we know that it is so, since we have all been children . The judge added, it is also evident, and follows from the [presidents] speeches on Hello President that neither the father, nor the child herself, agrees with the publication.245
The judge was referring to remarks by Chávez in his weekly broadcast two days after the publication of the Tal Cual article. Chávez had criticized the writers reference to his daughter, describing her reaction to the article with pride: She said to me: Papi, its a lack of respect for the coat-of-arms. She didnt complain about herself, but about the coat-of-arms, you see? How fantastic children are! How fantastic children are to teach a lesson to those animals infesting the sewers!246 The prosecution of Tal Cual seemed to follow the cue of the presidents objections.
In December 2004, the Law on Social Responsibility in Radio and Television (Social Responsibility Law), a comprehensive statute that regulates television and radio content, came into force. The new law, which replaced broadcasting regulations enacted in 1984, contained detailed regulations to protect minors from exposure to unsuitable content, established programming obligations in order to promote Venezuelan music and national producers, and allowed audience groups to participate in broadcasting regulation. The law also expanded the scope of an already broad prohibition on incitement and established severe penalties for broadcasters that violated it.
The broad and imprecise wording of the new incitement provisions, the severity of the penalties, and the fact that the law is enforced by a body dependent on the executive branch all increase the broadcast medias vulnerability to arbitrary interference and pressure to engage in self-censorship.247
It is generally recognized that incitement to violence may legitimately be subject to legal sanctions on public order grounds. But the power to prohibit such speech is not unlimited. Because of the importance of allowing a full and free public debate, the government must only impose restrictions on grounds of incitement where there is a direct relation between the speech in question and a specific criminal act.
In Incal v. Turkey, the European Court of Human Rights ruled that Turkey had violated the European Convention on Human Rights by sentencing a Turkish national to prison because he had written a propaganda leaflet that, according to the government, incited hatred and hostility through racist words and advocated illegal forms of protest. The court agreed that the leaflet included a number of "virulent" criticisms of the government's policies towards the Kurdish minority, and called on Kurdish citizens to "oppose" these policies by forming "neighborhood committees." The court concluded, however, that these appeals could not be taken as incitement to the use of violence, hostility, or hatred between citizens. It also considered that a prison sentence was "disproportionate to the aim pursued and therefore unnecessary in a democratic society."249
As these judgments illustrate, governments are required to tread with care to avoid endangering freedom of expression in efforts to prevent violence or the disruption of public order. Moreover, because the crucial link between speech and action must be demonstrated by interpretation and argument, it is essential that the procedures under which cases are examined are transparent and impartial.
The Social Responsibility Law, which applies to all television and radio broadcasters except international cable channels, contains broad and imprecise provisions on incitement whose infringement can lead to a channel having its broadcasting license suspended or revoked.
According to article 29 of the law, stations which transmit messages that promote, defend or incite war, disturbance of public order, crime , or are a threat to national security may have their license suspended for 72 hours or revoked for up to five years on a second offense.250 In addition, once an investigation under article 29 is underway, the law permits the government telecommunications commission, CONATEL, to censor the broadcasters messages if they are considered to violate the articles provisions.251
The Social Responsibility Law was intended to modernize broadcasting regulations which date from 1984, but the overly vague incitement provisions of those regulations were retained and expanded.252 Whereas the 1984 regulations referred only to incitement,253 article 29 of the new law also makes it an offense to promote (promover) or defend (hacer apologia) disturbances, crimes, or threats to national security. Under the new law, broadcasters can be sanctioned for commentary that appears to justify actions that already occurred.
The lack of clear language limiting the application of these terms increases the possibility of arbitrary application, and also offends the principle that laws must be of sufficient certainty and legal precision that people are able to regulate their conduct to avoid infringement. This principle of legality is infringed where it would be particularly difficult to distinguish between the circumstances in which a message would be considered as public promotion or defense of an act of public disorder and those in which it would represent the legitimate exercise of the right to express an opinion.254
The Social Responsibility Law also greatly increased penalties for infractions. Under the 1984 broadcasting regulations fines had become trifling, not exceeding 4,000 Bolívares (a little over US$2.00 in 2004).255 Channels or stations that violate the regulations to protect children now face fines of up to 2 percent of their income in the previous tax year. Whereas in the 1984 broadcasting regulations, incitement of rebellion was subject to a fine or suspension, in the Social Responsibility Law, incitement is punishable by suspension on a first offense.
This latitude in the current provisions is particularly troubling given the penchant of Chávez and government officials to categorize dissent as subversion, treason, or incitement of violence. They often describe protests as a cover for destabilizing action and as being manipulated by the oligarchy, fascists, or the imperial power. Chávez, for example, referred to the largely peaceful student protests against the non-renewal of RCTVs broadcasting license in 2007 as a soft coup (golpe blando).256
Similarly, the current communication and information minister referred to the boycott of the 2005 congressional elections as a new coup détat and as being contrary to democracy.257 While electoral abstention may be harmful if its effect is to weaken democratic checks and balances, it is also an exercise of the right to engage in peaceful protest. To describe it as tantamount to a coup is at best misleading and inaccurate and worst another threat against non-violent expression, especially given that neither participation in elections nor voting are obligatory in Venezuela. Vice-President José Vicente Rangel even described opposition candidate Manuel Rosaless suggestion that the election be postponed as being in the same line as the April 12 coup.258
Following the governments logic, any radio or TV broadcasts deemed to have incited, promoted, or merely defended participation in the protests, the electoral abstention, or the postponement of elections could be accused of violating the Social Responsibility Law, and the broadcaster would be liable to suspension or ultimately revocation of its license for five years.
The bodies responsible for investigating and sanctioning infractions under the Social Responsibility Law do not enjoy sufficient guarantees of independence to protect them from political interference. The decision to open an investigation and the application of sanctions for infractions of broadcasting laws are the responsibility of the National Telecommunications Commission (CONATEL), a body attached to the Ministry of Communication and Information. CONATEL also decides on the application of preventive measures, which as noted can include prohibiting transmissions.259 While defined in law as an autonomous body, CONATELs four-person board of directors and its director general are all appointed by the president of Venezuela and can be dismissed at his discretion.260
The government also has a majority on the Directorate of Social Responsibility, the body created under the Social Responsibility Law to analyze infractions and impose sanctions. The directorate is headed by CONATELs director general, and includes six officials selected by ministries and state institutions, two representatives of audience groups organized by CONATEL, a university representative, and a church representative.261
The danger of overbroad interpretation of the vague incitement provisions could be limited if the enforcement body were independent from the executive branch and staffed by professionals who have suitable qualifications, serve fixed terms of office, and enjoy security of tenure while in office. While the directorate includes members from different sectors of society, the law does not state the criteria required for appointment to the directorate or the period of office of its members, and it does not protect them from arbitrary or politically motivated dismissal.
To Human Rights Watchs knowledge, CONATEL has not at this writing imposed any sanction under article 29 of the Social Responsibility Law.262 Yet officials have repeatedly invoked these provisions in warnings issued to television stations at moments of political tension, and in circumstances in which their application would have been unjustified and hence an arbitrary interference in freedom of expression.
In April 2006, for example, CONATELs director general invoked the incitement provision of the Social Responsibility Law in response to private stations coverage of street protests sparked by a violent crime. In letters to the directors of Globovisión and RCTV, the official warned them against inciting breaches of public security and crime and reminding them that the station could be punished for failing to comply. The provisions of article 29 of the Social Responsibility Law were underscored in the letters.263 Globovisión and RCTV had been covering the discovery of the bodies of three teenage brothers and their driver who had been kidnapped for ransom and ultimately executed. The shocking murders sparked street protestsextensively covered by the two channelsagainst the governments failure to tackle the problem of rising violent crime.
These brutal murders and the protests they sparked were clearly matters of public interest, and therefore legitimately the subject of extensive coverage. The government was not justified in invoking the incitement provisions as a lever to persuade the channels to change their editorial decisions, whether or not they believed the channels had political motives in making such decisions.
Government officials also invoked the incitement provisions in response to media coverage of RCTVs removal from the public airwaves after its license expired. When this event sparked large student demonstrations across Venezuela, the Directorate of Social Responsibility warned about transmitting messages that incite hatred and lawbreaking, and announced that it was, in permanent session, monitoring media coverage of the protests.264
The government objected specifically to the medias presence at a press conference that the Inter American Press Association (IAPA) held in Caracas. The Ministry of Communication and Informations delegate on the directorate claimed that an IAPA statement read at the conference invited Venezuelans not to recognize the governments decision not to renew RCTVs broadcasting concession.265 She said that the IAPAs declarations violated the Social Responsibility Law and called on the channels not to broadcast them. The official warned the audiovisual media that they could face a 72-hour shutdown if they disseminated messages promoting discrimination or inciting war.266
The accusation that IAPA had incited disobedience of the law was unfounded. The IAPA press release described the RCTV decision as an abuse of power and called the Venezuelan government undemocratic for declining to renew RCTVs license.267 While the press release might have encouraged some people to discuss the issue or express comparable views, it could not have incited illegal acts preventing the decision from taking effect because only the government or the courts could have prevented its implementation. In any case, the media had a right to report on what the press association said at its press conference, whether or not it was critical of the decision and the government.
In December 2005, CONATEL invoked the Social Responsibility Laws incitement provisions in response to media coverage of the campaign leading up to the congressional elections of that month, during which the main opposition parties announced they were pulling out and called on voters to boycott the vote. The government was concerned that the private media were themselves encouraging the election boycott. Top government officials including Chávez and Vice-President José Vicente Rangel accused opposition parties advocating abstention of fomenting an electoral coup, instigated by the United States embassy.268 Chávez, on a national broadcast, warned RCTV and Globovisión that the permissive Chávez was buried in 2002 and he would not allow further calls for destabilization.269
Within hours of Chávezs national address, CONATEL summoned media directors to a meeting to discuss coverage of the National Assembly elections after opposition candidates announced that they were withdrawing from the race in protest at alleged electoral irregularities. A CONATEL official who was present at the meeting told the press afterwards that he had merely refreshed the managers memories about their legal responsibilities.270 But more specifically, according to Venevisións vice-president, the directors were urged to make sure their coverage did not incite crime, attack national security, or call for warthe three offenses listed in article 29 of the Social Responsibility Law.271
CONATEL official told Human Rights Watch there was no reason to be concerned about what took place. The meeting was to evaluate with [the directors] how to interpret the norms in force and to request their cooperation. It was just a preventive measure, and there were no problems afterwards.272 However, what was troubling about the meeting was that the central issue was the channels coverage of abstention calls made by the opposition candidates. While the electoral boycott was controversial, opposition calls for abstention and opposition demonstrations challenging the electoral process were clearly matters of public interest. Covering the abstention campaign was a legitimate activity and cannot be said to have constituted incitement to crime or violence or a threat to national security.
In addition to threatening sanctions under the Social Responsibility Law, the government has pressed for criminal investigations against Globovisión on highly dubious allegations.
In May 2007, at the request of the communication and information minister, the attorney general launched an investigation to establish whether Globovisión had transmitted messages inciting Venezuelans to assassinate Chávez. The minister said he believed the station had urged the presidents assassination by transmitting a news archive clip of the gun attack on Pope John Paul II with an accompanying soundtrack of a song by salsa star Rubén Blades.273 The communication and information minister sent the complaint to the attorney general, insisting that communications experts who had analyzed the clip concluded that it contained a subliminal message inciting violence against the president.274
The clip in question was transmitted by Globovisión as part of the political comment program Hello Citizen, during an interview with RCTVs president, after RCTVs license renewal had been refused. During commercial breaks the station was airing clips from RCTVs 53-year history covering world events, including the sequence of the gun attack on the pope. The soundtrack from the Blades song Have Faith, contained the words Have Faith, its Not Over Yet! (Tengan fe, que esto no se acaba aquí) and had already been transmitted several times that week on the program. There is nothing to suggest that the lyrics are about anything other than hope and perseverance, and Globovisión, in fact, claimed that its commentators had urged participants not to resort to violence.275 Although the attorney general began an investigation into the ministers complaints, and technicians who worked on Hello Citizen gave evidence as witnesses, nothing was heard of the investigation afterwards.276
In another case in October 2007, the interior and justice minister asked the attorney general to investigate an amateur video aired by Globovisión that showed a robbery in progress on a main road in Caracas.277 The minister accused the station of engaging in a psychological campaign to generate anxiety and fear in the population, and said he suspected that the video has been prepared to attack the governments anti-crime record. The beginning of the investigation was widely reported in the press, but it too was discontinued.278
Chávezs professed commitment to broadening popular participation in the political process has led neither to greater openness and transparency in government nor to easier public access to information held by government officials. Journalists and the public often experience difficulty in gaining access to what should be public information, and there is no legislation to provide effective redress in such circumstances.
The right to seek, receive, and impart information is recognized in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the American Convention on Human Rights.279
There is growing international recognition that the right to seek, receive, and impart information encompasses a positive obligation of states to provide access to official information in a timely and complete manner. Both regional and international organizations have held that the right of access to official information is a fundamental right of every individual.280 In the Americas, the Inter-American Court on Human Rights has held that article 13 of the ACHR (on the right to freedom of expression) entails the right to receive information held by government offices, as well as these offices obligation to provide it.281 Moreover, it is internationally recognized that this right is crucial to ensure democratic control of public entities and to promote accountability within the government.282
The right of access to information is governed by the principle of maximum disclosure, meaning the government is presumed to be under an obligation to disclose information.283 This presumption can only be overridden under circumstances clearly defined by law in which the release of information could undermine the rights of others or the protection of national security, public order, or public health or morals.284
Venezuelas 1999 Constitution guarantees the right of access to government files and records, without prejudice to the limits acceptable in a democratic society concerning interior and external security, criminal investigation, and the intimacy of private life, in accordance with the law regulating the classification of documents whose contents are confidential or secret.285 The constitution also guarantees the right to timely and truthful information about official procedures affecting individuals directly, and access to any official resolutions adopted. And it establishes that no censorship by public officials affecting the provision of information on matters under their responsibility will be permitted.286
In furtherance of the right to information, the 2001 Organic Law of Public Administration establishes that anyone can submit a written request to a state entity for a specified document and has a right to receive a copy at his or her own expense.287 By default, all requests or petitions directed to an administrative authority, whatever their nature, must receive a reply within 20 days.288 Officials who do not reply face a possible fine of between 5 and 50 percent of their monthly salary.289
Even though the obligation to provide information exists in law, there is no law that specifies the circumstances in which access to public documents may be denied. Nor is there any enforcement mechanism to address situations where officials fail to respond satisfactorily to requests for information. Officials at the Ministry of Communication and Information told Human Rights Watch that Andrés Izarra, during his first term as minister, presented a draft bill to the National Assembly to strengthen access to information that was discussed in the Assemblys sub-committee on media.290 Human Rights Watch was unable to confirm this information, but to our knowledge no such bill has been discussed on the floor of the National Assembly.
The Venezuelan section of Transparency International presented its own bill in 2007 to the president of the National Assemblys sub-committee on media. As of July 2007 the organization had been unable to get the endorsement of three legislators, the minimum required for introducing a draft law for consideration.291 In June 2008 the president of the sub-committee said that the sub-committee had other priorities and claimed that progress on the law had been held up by the attempts of some journalists to politicize the issue.292
Government officials routinely deny or fail to respond to requests for information by journalists. According to an investigation by Últimas Noticias, a generally pro-government newspaper, journalists have encountered obstacles in obtaining information from the police on crime statistics, judges and court officials, hospitals, state enterprises such as PDVSA, the comptroller generals office, and various ministries.293
According to a log publicized by the newspaper El Mundo, only 37.5 percent of the officials responded to requests for official information made by its investigative reporters in 2007. The average wait for a reply was 38 days, almost twice the legal maximum. For example, a reporter approached the Ministry of Planning and Development to get information about the salaries of public employees. It took seven months, three letters, and a change of vice-minister before a reply was received.294 Similarly, it proved impossible to obtain information from the civil register (ONIDEX) on the number of Venezuelans who had left the country since 1997.295
For NGOs, obtaining official information can be even more difficult. In a study conducted by the human rights NGO Espacio Público, 46 requests for information were made to the same number of government ministries and departments in 2007. The requests were for information about salaries, advertising expenditure, and a copy of the bill on access to information supposedly in the National Assembly. Only 4 percent of the requests received a positive reply. Eight-seven percent were rejected or not answered.296
In the absence of an enforcement mechanism, neither journalists nor NGO representatives have any means of compelling officials to disclose the information that is withheld.
The government has misused its control of broadcasting frequencies to discriminate against channels that are political opponents. In the most prominent and egregious case, Chávez gave orders not to renew the concession of Venezuelas oldest television channel, Radio Caracas Television (RCTV), because it refused to tone down its hostile editorial stance.
Evolving norms in international law have strengthened the obligation of governments to promote pluralism in broadcasting. In 2001, in a joint declaration, the special rapporteurs on freedom of expression for the United Nations, the OAS, and the OSCE, determined that:
The special rapporteurs issued a further declaration in 2007 stressing that media regulation to promote diversity must be protected from political interference:
Moreover, regional human rights norms on free expression do not allow states to use their control of radio-electrical frequencies to impede the communication and circulation of ideas and opinions.299 Nor may they use such control to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express.300
To safeguard against bias, political favoritism, and corruption, the procedures for granting or refusing broadcasting licenses should be open, impartial, and transparent. As the Inter-American Commission on Human Rights pointed out in a press release on the RCTV case:
Venezuelan law bestows the power to award radio and television concessions on the communication and information minister following prior technical evaluations carried out by CONATEL.302 Although CONATEL is technically an autonomous agency, its four directors, like the communication and information minister, are all appointed by the president of the republic and can be dismissed at his discretion. There are no institutional controls to ensure that such decisions are based on an impartial consideration of the public interest rather than the governments political objectives.
In the case of free-to-air radio and television, concessions are decided on an individual basis, rather than through a competitive bidding process or lottery, as is the practice for other users of the airwaves. This means that the ministerand, by extension, the presidenthas full discretion to accept or reject applications. The absence of clear criteria for awarding concessions and the lack of impartial regulation of the process open the door to politically motivated and discriminatory decisions.
In December 2006, Chávez announced on a nationwide broadcast that he would not renew the broadcasting license of RCTV, Venezuelas oldest and one of its most popular television stations. Filmed standing on a military parade ground, he said that Venezuela would no longer tolerate private media "at the service of coup-plotting, against the people, against the nation, against the independence of the nation, and against the dignity of the Republic!"303
Chávez had repeatedly threatened not to renew the broadcasting concessions of the countrys main private television channels in response to critical coverage of his government. While he pointed to the channels role in the 2002 coup as a justification, he also made clear that the threatened action would be in response to the continuously critical coverage of some of the channels.304
In March 2007, three months after Chávez announced his decision, the Ministry of Communication and Information published The White Book of RCTV (El libro blanco sobre RCTV), a compendium of the governments accusations against the channel. During the same month RCTV received a resolution and cover letter from the communication and information ministerthe official responsible for television concessionsformalizing Chávezs decision. Yet neither the official resolution nor the letter mentioned any of the accusations publicly leveled by Chávez against the channel as grounds for the decision not to renew the license. After the Supreme Court rejected RCTVs legal appeals for an injunction, the channel stopped broadcasting on public airwaves on May 27, 2007.
While the Chávez government was under no obligation to renew RCTVs concession, it improperly used its regulatory power to punish anti-Chávez programming, discriminating against RCTV on political grounds and disregarding due process considerations.
As noted, one of the principle justifications that Chávez and his supporters offered for denying RCTV a concession renewal was its role during the 2002 coup. Ever since the events of April 2002which he accused the media of fomentingChávez had threatened the four largest private channels (RCTV, Venevisión, Televen, and Globovisión) with revocation of their broadcasting licenses. From June 2002 until he made the announcement in December 2006, Chávez had made such threats on at least eight occasions in public broadcasts or interviews.305 On the last of these occasions, in November 2006, Chávez warned that some of the licenses were due to expire the following year. No one should be surprised if on March 27 [sic] I tell them their license is up.306
Two private stations licenses were in fact due to expire on May 27, 2007RCTVs and Venevisións. But in his December 2006 speech Chávez made no mention of Venevisióna channel he had accused with equal vehemence for its conduct during the coupand its license was duly renewed for five years on its expiry.
If the non-renewal of RCTVs license was indeed a belated sanction for the channels conduct during the coup, Venevisión should have received the same treatment. But after Chávezs victory in the recall referendum in August 2004, Venevisión (along with Televen) pulled its adversarial political opinion shows and drastically reduced its coverage of opposition news.307 In contrast, RCTV (along with Globovisión) continued to cover protests extensively and broadcast comment that was uniformly critical of the government.308
RCTV was singled out evidently because of its refusal to tone down this criticism. In fact, in June 2006, six months before Chávez announced his decision, he himself pointedly compared the conduct of some stations, in an apparent reference to RCTV and Venevisión. At a televised ceremony handing over Russian rifles to the army, Chávez ordered his ministers and CONATELs director general to review private television concessions, placing a question mark over their renewal the following year. After complaining that some channels still acted like fifth columns, he noted that other channels that he accused of supporting the coup had given signs of wanting to change, and look like they intend to respect the Constitution and the law.309 The communication and information minister went further:
Neither Chávez nor the minister mentioned the channels they were referring to, but it was widely understood that the governments sights were on RCTV.
The discriminatory use of the governments regulatory authority was also made clear by the fact that Chávez had issued his threats of non-renewal in response to critical coverage of his government. For example, the last such threat he made before announcing his decision on RCTV was during a televised address just weeks before the 2006 presidential election in which he denounced private stations for broadcasting a clandestine video of his energy minister calling on employees in the state oil company to abandon their jobs if they did not support Chávez.
As already noted, in March 2007, at the height of the controversy over RCTV, the Ministry of Communication and Information published the White Book on RCTV, a 360-page compendium of alleged malfeasance by the station. The documented cited several actions of RCTV as evidence of its involvement in the coup: its coverage of the street demonstrations which precipitated the coup; its splitting its screen during a presidential broadcast in order to continue showing scenes of the protests; repeated transmissions of speeches and comments by opposition leaders blaming the government for the violence; its refusal to transmit news of Chávezs illegal arrest by the coup plotters; and its blacking out coverage of pro-Chávez demonstrations as the coup unraveled.311 Yet none of these actions were formally investigated in an administrative or judicial hearing, and RCTV was not given an opportunity to defend its record.
The White Book also charged RCTV with monopolistic practices, incitement to violence, non-compliance with standards protecting children, and tax evasion. Yet the book did not show that any of these allegations had been proven, either in court or in an administrative investigation by the broadcasting authorities.312
In March 2007, after an international outcry about Chávezs announcement, Communication and Information Minister Jesse Chacón, sought to recast Chávezs decision. In a resolution notifying the station of the expiry of its concession, Chacón presented the matter as a purely technical issue without any reference to the accusations. The government, Chacón stated, had a peremptory need for an open access television network with national range, like that which will become available when RCTVs concession expires.313 In a cover letter to the stations legal representatives, Chacón insisted that that the expiry of a term is not a punishment, and that due process guarantees were not applicable to the case.314
If the governments reason for not renewing RCTVs license had been, as Chacón claimed, to free up the frequency for a use that was in the public interest, the non-renewal would seem to be far more justifiable. However, the government appears to have had no such plans when Chávez announced his decision in December 2006.315 For several months after his announcement the actual proposals for RCTVs replacement were extremely vague, even though the law requires that the potential grantee of a concession provide CONATEL with detailed proposals and technical plans, and even though their evaluation is normally a lengthy process. Not until mid-May 2007two weeks before the new station was due to go on air for the first timewas the creation of the station, Venezuelan Social Television (Televisora Venezolana Social, TVES) officially announced.
Moreover, the government never explained satisfactorily why it did not use frequencies that were already at its disposal to create a new station. Chacón claimed that the VHF frequency used by RCTV was the best available for the purpose of creating a national network, and that other VHF frequencies were not practicable.316 However, at the time the government had 26 unused VHF frequencies that could have provided coverage similar to the RCTV concession.317 Failing that, the government could have used UHF as an alternative, as it did successfully when it launched Vive TV in 2003.318
The governments improvised response to the future vacancy of the RCTV frequency was also apparent in its lack of technical preparation. CONATEL had not secured the technological capacity to transmit TVESs signal throughout Venezuelas territory before the expiry of RCTVs concession. According to Jesse Chacón, at the time of the hand-over TVES only had three transmitters functioning, two in Caracas and one in Maracaibo.319 The government had stressed that it had no plans to expropriate RCTVs transmitters.320
As the crucial date neared, the audience groups registered with CONATEL provided a way out for the government. Eleven of them requested the Supreme Court to deliver an injunction obliging CONATEL to provide all Venezuelans with access to the station about to air for the first time. With unusual speed (the court had delayed for months before rejecting an appeal for an injunction filed by RCTV to keep it on the air), it granted the audience groups appeal, and ordered the military to secure RCTVs transmitters across the country so that CONATEL could use them to transmit the TVES signal.321
Chacón argued that the RCTV decision meant Venezuelas first public service outlet would contribute to the democratization of the media. After a year in operation, TVES has shown no signs of genuine independence of the government or editorial pluralism. The channel is funded by the government, its director and five of its seven governors are government appointees, and there are no safeguards to ensure representation of different sectors of opinion.322 An analysis of 42 hours of programming in June 2007 revealed that 8 percent consisted of repetitive government messaging, more than the 6 percent dedicated to news. The news coverage itself consisted largely of government information, and downplayed opposition opinion or stories that reflected badly on government authorities.323 A study of media coverage of the December 2007 referendum campaign revealed that TVES had coverage no less biased toward the Yes vote than the state channel VTV.324
With RCTVs removal from the public airwaves, only Globovisión, whose 20-year license is due to expire in 2015, remains as a station with an unequivocal opposition editorial line. But Globovisión transmits a free-to-air signal only in Caracas and Valencia, enjoying only a fraction of RCTVs reach.
Globovisión has also been under pressure from the government for years because of its political line. It has received warning letters from CONATEL because of the political tone of its reporting, it has been frequently refused entry to government press conferences, and its reporters and cameramen have been physically attacked and threatened by Chávez supporters.
Although government officials have recognized its broadcasting concession as legal, Globovisión, founded in 1994, still has not received a reply to an application for the validation of its license, a mandatory procedure for broadcasters whose license predated the Organic Law of Communications of 2000. Under this law, CONATEL was obligated to complete the validation process by June 2002, but it still had not done so at this writing.325
Globovisión executives complain that its many submissions to CONATEL for extended coverage have been denied or more often ignored.326 In 1998, in the final year of the Caldera administration, CONATEL assigned Globovisión two extra frequencies in the states of Vargas and Monagas, with a one-year deadline to install its transmitters. According to Globovisión, it filed a request in May 1999 to CONATEL for an extension of the deadline. Having received no reply, it submitted further applications for the frequencies in August 1999, January 2002, April 2002, June 2002, and February 2005, all without result.327
On top of failing to respond to Globovisións requests, the government decided to free the frequencies that the company had been trying to secure for years. In September 2005 CONATEL began an administrative investigation against Globovisión for its failure to occupy these frequencies.328 Globovisión protested that it had not received legal authorization to use them after it missed the initial deadline, and that to do so without authorization would be illegal. Three months later, the Ministry of Infrastructure decided Globovisión was not at fault and ordered CONATEL to investigate the legal status of the frequencies. In April 2006 despite Globovisións numerous applications for the frequencies over several years, CONATEL published a resolution freeing them for use by other service providers, without explaining to Globovisión the outcome of its long-delayed applications.
The Supreme Court supported the governments refusal to address Globovisións claims. Globovisión had filed a writ in the Supreme Court to annul CONATELs April 2006 resolution, alleging it had been denied a fair hearing. It also requested the court to issue a temporary injunction to suspend the effects of that resolution until the court had ruled on its legality. In November 2006, the Supreme Courts Political Administrative Chamber rejected Globovisións request for an injunction, arguing that CONATELs lack of response should be interpreted as a denial of Globovisións requests.329 Two years later, the court has yet to rule on the legality of CONATELs resolution.330
In stark contrast to the bureaucratic obstacles faced by Globovisión in its efforts to reach a wider public, state-owned Vive TV, a cultural channel founded by the government in 2003 (nine years after Globovisións inception), is currently transmitting on public airwaves to Caracas and all 23 of Venezuelas states.331 As we have seen, the governments most recently created channel, TVES, obtained in a matter of days nationwide frequencies and a network of national transmitters which RCTV was obliged to surrender indefinitely without a judicial hearing.
CONATELs treatment of Vale TV is another example of the lack of transparency and apparent arbitrariness of the governments administration of broadcasting frequencies. In this case, the reason for discrimination was less political (Vale TVs programming was politically innocuous), but appeared to be based on the governments conviction that the stations frequencies legitimately belonged to the state.
During the 1990s Channel 5 (then TVN-5), Venezuelas oldest state channel, was virtually defunct, only retransmitting sports programs from the main state channel (VTV) for a few hours a day. In 1998 the Archbishop of Caracas proposed to then-President Rafael Caldera to replace it with a new public service non-profit educational and cultural channel, with commercial and technical backing from Venevisión, RCTV, and Televen. In December 1998 CONATEL reserved Channel 5s 27 frequencies across the nation for use by Vale TV and authorized it to begin transmissions.332
The transfer of Channel 5 to the private sector attracted widespread criticism at the time, mainly because it was seen by media commentators on the left as a covert privatization. Upon assuming office, the Chávez government began proceedings to recover the frequencies.
On December 14, 2005, CONATEL annulled the concession approved under the Caldera government, arguing that it had been assigned illegally, and took back the 26 frequencies outside Caracas that it had conceded to Vale TV in 1998. Vale TV was told to submit a new application for the Caracas frequency, and was given temporary authorization to transmit in Caracas while the application was being processed. Vale TV asked CONATEL to reconsider, but received no reply.
In April 2006, without any further consultation with Vale TV, CONATEL announced that the 26 frequencies had now passed to the state, and were now free for assignation to other users.333 In March 2007 Vale TV submitted to CONATEL the required application for its Caracas frequency and also for four of those it had originally possessed in other states (Lara, Bolívar, Anzoátegui, and Carabobo). At this writing, CONATEL had ratified only the Caracas frequency, thus by default restricting Vale TVs coverage to the capital.334 To our knowledge, the 26 frequencies the state reclaimed from Vale TV have still not been assigned to other users.
At the same time as the Venezuelan government has engaged in political discrimination in the distribution and administration of radio-electrical frequencies, it has also gone further than many Latin American countries in opening opportunities for broadcast media at the community level. The governments support for these media has contributed to a dramatic increase in the number of licensed community radio and television outlets in recent years, which has given new opportunities for public expression to residents of many poor communities in Venezuela.
The United Nations has recognized the role of community media in fostering sustainable development objectives for more than a decade.335 International bodies like UNESCO and the Inter-American Commission on Human Rights have stressed the importance of non-profit community media for the poorest sectors of the population who normally have very restricted access to the conventional media. In his 2002 report, the Special Rapporteur on Freedom of Expression of the OAS, Eduardo Bertoni, recognized their role in expanding the scope of free expression in societies with significant levels of poverty.336
Since the 2002 coup, CONATEL has provided millions of dollars to support incipient community media across the country.
Government support was in part given in recognition of the role community radio played during the news blackout during the coup. While the mainstream commercial media were reporting that Chávez had resigned, and with VTV and National Radio out of action, only a few community radio frequencies reported that he had in fact been arrested, calling Chávez supporters from the barrios onto the streets to protest the coup and demand his return. Some paid an immediate price for their reporting: two community outlets, Radio Perola and Catia TV, were raided by police after Carmonas illegal swearing in.337
Long before the coup, however, the Chávez government had committed itself to supporting alternative community-based media. After more than two decades of neglect and marginalization, community media were formally included for the first time in the telecommunications sector in the Organic Law of Telecommunications, enacted in 2000. The promotion of community media for the exercise of the right to free and plural communication is named second in a list of the laws objectives.338
The Regulations for Non-Profit Public Service Community Radio Broadcasting and Open Community Television (hereinafter the Regulations), which came into force in November 2001, encourage community broadcasting. They allow anyone with appropriate skills to obtain a license to operate a community radio or TV station after a feasibility evaluation by CONATEL, and provided that conditions on financial independence and diversity are met.339 CONATEL provided technical support to start-up community media for a year after the Regulations came into force, including non-reimbursable grants for infrastructure, as well as training.340
In October 2003, Chávez announced that five billion Bolívares (approx. $2,300,000, at current rates) would be donated to a fund to be administered by a cooperative of community media operators to finance seed capital, infrastructure, and training.341 By 2006, some 3,994,008,000 Bolívares (about $1,860,000, at current rates) of the money had been spent, benefiting 109 community radio and television stations. By August 2007, 266 community radio stations and more than 30 community television outlets were licensed and operating, according to CONATEL.342
During visits to Venezuela in 2007, Human Rights Watch interviewed staff at five community radio stations in Caracas and Maracaibo. Four had received money from CONATEL for equipment such as computers, sound equipment, or aerials, and some were operating from premises loaned by the municipal government or other government bodies. Radio Voces Libertarias, which houses a school that trains young people in radio and computing skills, had five unpaid permanent volunteers, and a transmitter and computers lent by the municipality, which also owns the building from which it operates. CONATEL was hiring more experienced workers at the station to organize training workshops in other parts of the country.343 Radio Nuevo Día in the low income neighborhood of Catia also received government support. Everything you can see here we got with CONATELs help, its director told Human Rights Watch.344 Some community radios also receive income from government advertising.
The legal regime governing community broadcasting contains norms to protect stations from government or other external interference. Under the Regulations, discrimination in access to the services provided is proscribed; stations are protected from being taken over by any particular political or religious group; state aid may not be made conditional on the donors influence over program content or other controls; programming cannot be monopolized by an individual or a single group; and the re-transmission of government broadcasts is only acceptable within certain time limits.345
The Regulations also establish that the foundations set up to start a community radio project must be run on democratic, participatory, and plural lines, with a governing council which is elected every three years, if not earlier.346 Certain people may not hold official positions on community radio foundations, such as public officials, members of the military, leaders of political parties at any level, leaders or representatives of labor unions, or business associations.347 As well as these controls, there is an express provision in the law that prohibits discrimination in accessing community media. Foundations must provide equal access of all the members of a community to the services they provide, and may not do anything by action or omission to discriminate and prevent access to the medium of some individual or group.348 Operators must provide airtime so that members of the community can participate in programs directly. Discrimination on the basis of political beliefs, age, race, sex, creed, social condition, or any other condition is not allowed. Operators must abstain from transmitting party or propaganda messages of any kind.349
A large majority of community radio stations are supportive of the Chávez government. However, they are not politically homogeneous, and by no means uncritical. Most are associated with the National Association of Free and Alternative Community Media (Asociación Nacional de Medios Comunitarios Libres y Alternativos, ANMCLA), which was formed after a split in the Venezuelan Network of Community Media (Red Venezolana de Medios Comunitarios, RVMC), which helped the government draft the community radio regulations. The RVMC now has about 70 radio stations compared to ANMCLAs 130.350
Not all community-run outlets are pro-Chávez, and even those that are frequently criticize corruption, mismanagement, or malfeasance by local officials. Among non-profit radios that have maintained an independent journalistic line is the Jesuit network Fe y Alegría, which has been involved for decades in popular education in some of the poorest parts of Venezuela, and has won awards from the government as well as from the opposition. There are several stations licensed by CONATEL that are overtly critical of Chávez, such as Radio Tropical Stereo in Venezuelas second largest city, Maracaibo.351 Radio Tropical Stereos director told Human Rights Watch that CONATEL imposed no political conditions when its license application was under consideration in 2003.352
Although Human Rights Watch has not documented any cases of government discrimination against community broadcasters, the dependence of most community stations on the state for funding and broadcasting licenses makes them vulnerable to potential political interference in the future, particularly in light of the concerns noted above about the independence of CONATEL.
The Supreme Court has not fulfilled its role as a defender of the fundamental right to freedom of expression from threats by the executive branch or the legislature. As noted earlier in this chapter, it upheld the constitutionality of insult laws that are contrary to freedom of expression norms binding on Venezuela, and invoked these laws itself against a media critic. In its handling of the RCTV case in 2007, the Supreme Court failed to ensure that decisions on the allocation and renewal of broadcasting frequencies are made transparently, without discrimination, and with respect for due process.
As we saw earlier in this chapter, the Chávez government refused to renew RCTVs license, abusing its regulatory power to punish anti-Chávez programming and showing utter disregard for due process considerations. At the time, RCTV and some of its supporters turned to the Supreme Court for relief, submitting appeals aimed at blocking implementation of the presidents decision to deny RCTV a renewal of its license.
The Supreme Court, rather than addressing issues of protection of free speech and due process, engaged in a variety of dubious measuresincluding delaying urgent rulings, failing to address central issues, disregarding key facts, and miscasting the claims of the petitionersbefore deciding in favor of the government.
The RCTV lawyers submitted their first appeal on February 9, 2007, six weeks after Chávez announced the decision to deny the company a concession renewal. The appeal was directed to the Supreme Courts Constitutional Chamber, seeking protection of the rights of RCTV journalists and owners to free expression, due process, and equal treatment. Specifically, the station sought an injunction (amparo constitucional) against Chávez and Communication and Information Minister Jesse Chacón, to prevent them from taking measures to force the station to stop transmitting when its license expired.353
Under Venezuelan law, the court is required to expedite the resolution of such constitutional appeals but instead, for three months, the Constitutional Chamber remained silent on the matter.354 Only after the government had formally adopted the presidents decision not to renew the license, and ten days before the license was to expire, did the constitutional chamber finally issue a ruling.355 The chamber denied the petitioners request, rejecting some of their claims and deferring others to another chamber of the court, the Political Administrative Chamber (Sala Político Administrativa, SPA).
The SPA was, at that point, already reviewing a separate and similar appeal that RCTV lawyers had filed in April, after more than two months of waiting in vain for a ruling by the Constitutional Chamber. In this second appeal, the petitioners argued that the governments resolution formalizing the presidents decision was unconstitutional, and requested a temporary injunction (medidas cautelares) to prevent its execution until the court reached a final decision on the case.
The SPA issued its own ruling five days after the Constitutional Chamber did,356 declaring that the majority of claims were too complex to be resolved at that point and would instead be addressed in a final judgment on the merits of the case in the indefinite future.357 It also refused to grant RCTV a temporary injunction while it considered the merits of the case, thereby allowing the governments decision to go forward and RCTV to lose its concession notwithstanding the potential illegality of the decision and the inevitable and perhaps irreparable damage that RCTV would suffer as a result.358 At this writing, more than a year after RCTVs license expired, the court still had not issued a final judgment.359
In addition to putting off making a final judgment, both chambers of the Supreme Court made use of highly questionable arguments as they sought to justify their refusal to address RCTVs claims.
For example, the Constitutional Chamber rejected the appeal against Chávezs decision on the grounds that the president was not legally responsible for the decision to deny RCTV the concession renewal.360 The court argued that the administration of broadcasting frequencies was exclusively the responsibility of CONATEL.361 While this is correct in general terms, the court appeared to ignore that Venezuelan law expressly provides that free-to-air television and radio concessions are adjudicated directly, not by CONATEL, but by the Ministry of Infrastructure (now the Ministry of Communication and Information), an official who is directly subordinate to the president .362 Chávez was therefore perfectly within his powers to order the minister to rescind the decision not to renew RCTVs license, as the petitioners had requested, whether he had taken it personally or his minister had. In fact, Chávez himself had made it emphatically clear in public statements that he had personally taken the decision, a fact that the court disregarded completely.363
The SPA, meanwhile, dismissed the request for a temporary injunction claiming that the governments action did not pose a threat to freedom of expression. According to the court, RCTV would be able to continue broadcasting its views as a cable channel, and the stations large national audience would still be able to view many other private channels. Absent from the SPAs reasoning was any consideration of the fact that RCTV was the only remaining channel on public airwaves with national coverage that was openly critical of the government, as well as the fact that large segments of RCTVs national audience had no access to cable. The SPA also failed to consider the broader impact that the presidents openly political and discriminatory handling of the case could have on freedom of expression in Venezuela.
Similarly, when analyzing the temporary injunction request, the court dismissed RCTVs claim that its right to due process had been violated. RCTV argued that it had no opportunity to respond to the public accusation of criminal actions and broadcasting infractions cited by government authorities as grounds for the decision not to renew its concession. However the court based its ruling solely on an analysis of the resolution and letter issued by the communication and information minister in March 2007two documents which carefully avoided any punitive language.364 It avoided mention of Chávezs public justifications for his decision, as well as the White Book that detailed RCTVs alleged transgressions to justify the non-renewal of the concession. Based on this highly selective analysis, the court found that RCTVs assertion regarding its right to due process was misplaced.
The Supreme Courts response to petitions by opponents of RCTV was dramatically different. Five days before RCTVs concession expired, the Constitutional Chamber received a petition from 11 pro-Chávez audience groups seeking an injunction to guarantee viewer access to TVES, the state channel that was to replace RCTV after its license expired.365 It took the court only three days to admit the case and grant the petitioners a temporary injunction.
As noted earlier in this chapter, TVES was set up only two weeks before RCTVs frequency became available. As the date for TVESs launch neared, ministers recognized that the government had few transmitters of its own to broadcast its signal throughout the country.
The 11 audience groups argued in their appeal that if TVESs broadcasting range did not cover the entire country, it would violate their right not to be discriminated against, as well as their right to obtain a quality public television service. The charge of discrimination was based on statements made by TVES executives that for the time being the TVES signal would be limited to the cities of Caracas and Maracaibo and would only be available by cable to viewers living outside these cities.
The constitutional chamber immediately admitted the petition and issued a temporary injunction assigning RCTVs transmitters and broadcasting equipment to CONATEL for use by TVES. The court also ordered the defense minister to secure and protect the broadcasting installations.
In order to justify this measure, the Constitutional Chamber held that the temporary injunction would not affect RCTVs property rights, despite the fact that it was assigning control over them to the state. However, the court did not fix a time-limit by which CONATEL would have to return the facilities to their owner or initiate proceedings to expropriate them. As of July 2008, more than a year after the court decision, TVES continues to use the transmitters.
The court used a petition seeking precisely the opposite outcomeblocking removal of RCTV from the public airwavesto reiterate its decision that RCTVs equipment should be assigned for use by TVES. The Interactive Radio Listeners (Oyentes Interactivos de Radio, OIR), an audience group opposed to Chávez, requested an injunction to prevent Chávez and Chacón from taking steps to have RCTV removed from the air, arguing they had a right to continue watching RCTV. The court argued that their right was met by having access to a television service of quality, not by access to any particular broadcaster, and that the injunction enabling TVES to broadcast from RCTVs old transmitters satisfied any claims they might have.366
In both rulings, the court stated in no uncertain terms that petitions for injunctive relief required immediate resolution by the court:
This is exactly what the court failed to do when responding to the petitions by the RCTV journalists and owners. 368
To prevent future acts of violence and intimidation against journalists, the government should:
The National Assembly should repeal all legal provisions which contravene international norms on freedom of expression and generate undue pressure for self-censorship. Specifically, it should:
The government should ensure the impartiality and due process in the procedures by which broadcasting laws are enforced. Specifically, it should:
To safeguard the right of access to information and increase the transparency of government and the accountability of government officials, the government should:
To ensure the impartiality in the criteria used for the granting and renewal of broadcasting decision, the government should:
167 Andrés Izarra, a former journalist for RCTV who later became Chávezs communications and information minister, resigned from RCTV because, as he alleged, it had imposed on its journalists a policy of zero Chavismo during the April 2002 events. Human Rights Watch interview with Andrés Izarra, Caracas, February 6, 2003. RCTV officials have denied the allegation, stating that the absence of their mobile units on the streets on April 12 and 13 was due to a security policy to protect their staff from violence that dated from the 1989 riots in Caracas known as the Caracazo. Human Rights Watch interview with Eduardo Sapene, Vice-President of RCTV, Caracas, February 7, 2003.
The government has accused RCTV and Venevisión of more serious actions such as manipulating video footage of Chávez supporters firing pistols to make it appear that they were shooting at peaceful marchers. These serious allegations have never been examined in court, however. Kim Bartley and Donacha O'Briain, The Revolution Will Not be Televised, documentary, 2006, http://video.google.com/videoplay?docid=5832390545689805144 (accessed August 1, 2008). Bartley and OBriain have been accused of omissions and distortion in another documentary. Thaelman Urgelles and Wolfgang Schalk, X-Ray of a Lie, documentary, 2006, http://video.google.com/videoplay?docid=-3378761249364089950 (accessed August 1, 2008).
168 According to a recent study based on four days programming in 2006, more than half of VTVs output was devoted to pro-government news and opinion programs heavily biased against the opposition and in favor of the government view. Marcelino Bisbal and Rafael Quiñones, ¿Instrumento de gobierno o institución estatal?, Comunicación, vol. 139 (2007), p. 64. Another investigation carried out during the 2006 presidential elections by a media monitoring group sympathetic to Chávez found VTV to be the most partisan of the six channels studied. Global Observatory of Communication Mediums of Venezuela (Observatorio Global de Medios de Venezuela), Los contenidos de opinión e información electoral en medios de comunicación social nacionales y regionales: elecciones presidenciales Venezuela 2006, Final Report, 2007, http://www.observatoriodemedios.org.ve/docs/informe_electoral.pdf (accessed August 1, 2008), p. 54. A study of television coverage of the December 2007 constitutional reform referendum funded by the Norwegian Ministry of Foreign Affairs and the Swedish Institute also found VTV to be the worst performer on impartiality, followed by RCTV International. Monitoring Group of Communication Mediums (Grupo Monitoreo de Medios), Información equilibrada en tres de siete canales de televisión, Comunicación, vol. 141 (2008), http://www.gumilla.org.ve/publicaciones/publicaciones_revista_comunicacion.php (accessed August 1, 2008). Some VTV interview program hosts, however, have invited opposition spokesman onto their programs. Ernesto Villegas, who hosts VTVs morning show In Confidence,told Human Rights Watch he interviewed one of the leaders of the oil strike as well as supporters of the coup on his program and received complaints from audience members as a result. Human Rights Watch interview with Ernesto Villegas, Caracas, February 10, 2003.
169 Under article 192 of the Organic Law on Telecommunications promulgated in 2000, Chávez, the vice-president, and government ministers are authorized to order private channels to transmit speeches without time limits. Organic Law on Telecommunications (Ley Orgánico de Telecomunicaciones, LOTEL), Official Gazette, No. 36.970, 2000, http://www.tsj.gov.ve/gaceta/junio/120600/120600-36970-15.html (accessed August 1, 2008), art. 192.
The Social Responsibility Law prohibits adulteration or editing of the speeches. Law on Social Responsibility in Radio and Television (Ley de Responsabilidad Social en Radio y Televisíon), Official Gazette, No. 38.081, 2004, http://www.tsj.gov.ve/gaceta/diciembre/071204/071204-38081-01.html (accessed August 1, 2008).
170 Francisco Olivares, TV sin público, El Universal, June 1, 2008, http://archivo.eluniversal.com/2008/06/01/pol_art_tv-sin-publico_880350.shtml (accessed August 1, 2008), citing data from AGB Nielsen Media Research.
171 These figures are from the CONATEL website, August 2007. National Commission of Telecommunications of the Bolivarian Republic of Venezuela (Comisión Nacional de Telecomunicaciones República Bolivariana de Venezuela, CONATEL), http://www.conatel.gob.ve (accessed August 1, 2008); Cristóbal Alva, Redes de Comunicación Popular, National Seminar: Social Policy: A New Paradigm? (Seminario Nacional: Política Social: Una Nueva Paradigma), Caracas, May 11-13, 2004, http://www.gerenciasocial.org.ve/bsocial/bs_03/bs_03_pdf_doc/jueves/panel_cristobal_alva.pdf (accessed August 1, 2008).
172 In April 2008 Chávez suggested setting up a 24-hour media monitoring center led by the government and the ruling socialist party to counteract media distortions: a well equipped national brain, where there are people dedicated 24 hours a day to the media war. Bolivarian News Agency (Agencia Bolivariana de Noticias), Psuv dirigirá Centro Nacional de Mensajes para enfrentar guerra mediática, April26,2008, http://www.abn.info.ve/go_news5.php?articulo=130516 (Accessed August 1, 2008); Pedro Peñaloza, Crearán centro nacional de mensajes para guerra mediática, El Universal, April 26, 2008, http://www.eluniversal.com/2008/04/27/pol_art_crearan-centro-nacio_838363.shtml (accessed August 1, 2008).
173 Para el nuevo panorama estratégico que se plantea, la lucha que cae en el campo ideológico tiene que ver con una batalla de ideas por el corazón y la mente de la gente. Hay que elaborar un nuevo plan, y el que nosotros proponemos es que sea hacia la hegemonía comunicacional e informativa del Estado. Laura Weffer, Entrevista: Andrés Izarra piensa que deben evaluarse todos los operadores de TV, El Nacional, January 8, 2007, http://venezuelareal.zoomblog.com/archivo/2007/01/08/entrevista-Andres-Izarra-considera-que.html (accessed August 1, 2008).
174 Ministry of Communication and Information (Ministerio del Poder Popular para la Comunicacion y la Informacion), Ministro Izarra: Programa La Hojilla es herramienta para la guerra mediática, March 24, 2008, http://www.mci.gob.ve/noticias-nacionales/1/175847/programa_la_hojilla.html (accessed August 1, 2008).
175 Alfredo Rojas, Chávez llamó basura a los medios en una escuela, El Universal, September 19, 2002, http://www.eluniversal.com/2002/09/19/pol_art_19108AA.shtml, (accessed August 1, 2008); Rodolfo Carrera, Chávez acusa a televisoras, El Universal, December 9, 2002, http://www.eluniversal.com/2002/12/09/pol_art_09105AA.shtml (accessed August 1, 2008); Chávez invocó carta democrática para televisoras, El Universal, December 16, 2002 http://www.eluniversal.com/2002/12/16/pol_art_16104BB.shtml (accessed August 1, 2008); Se adiestran para el magnicidio, El Universal, May 10, 2004, http://www.eluniversal.com/2004/05/10/pol_art_10104A.shtml (accessed August 1, 2008).
176 For more on these attacks and their effects on freedom of expression, see Human Rights Watch, Caught in the Crossfire: Freedom of Expression in Venezuela, vol. 15. no. 3(B),May, 2003 http://www.hrw.org/reports/2003/venezuela/. In May 2008, a former policeman was sentenced to fifteen years in prison for the murder of press photographer Jorge Aguirre, who was shot in the street in April 2006 by an off-duty policeman while covering protests against violent crime. Clodovaldo Hernández, Condenado a 15 años un asesino que fue fotografiado por su víctima, El País (Spain), May 21, 2008.
177Venezuela: Situación del derecho a la libertad de expresión e información, 2007 (Caracas: Espacio Público, 2008), http://www.espaciopublico.info/index.php (accessed July 29, 2007), pp. 15, 122, 132, 180.
178 Javier Moreno Sucre, "Colegio nacional de periodistas exige investigar agresiones," El Universal, July 29, 2008, http://www.eluniversal.com/2008/07/29/pol_art_colegio-nacional-de_967925.shtml (accessed August 4, 2008).
179 Inter-American Court of Human Rights, Gabriela Peroza y otros v. Venezuela, Judgment of February 27, 2004, Inter-Am.Ct.H.R., (Ser. L) No. 122 (2004); Inter-American Court, Luisiana Ríos y otros v. Venezuela, June 11, 2008, Order of the President of the Inter-American Court, http://www.corteidh.or.cr/docs/asuntos/luisiana.pdf (accessed August 1, 2008).
180 The Venezuelan government has the majority shareholding in Telesur, which is jointly owned by the governments of Venezuela, Argentina, Cuba, and Uruguay. Telesur bought CMT in 2006. Telesur compra televisora venezolana CMT, aporrea.org, December 13, 2006, http://www.aporrea.org/medios/n87857.html (accessed August 5, 2008).
181 Although state media have proliferated in recent years, their audience figures remain consistently low in comparison with the commercial channels. Between 2002 and 2006, all the state channels put together were being watched by less than 6 percent of the television audience, whereas RCTV alone had an average audience share of more than 30 percent. The migration of RCTV to cable following the non-renewal of its broadcasting license has scarcely altered this picture. In March 2008, VTVs audience share was less than 4 percent, whereas RCTVs was above 13 percent despite the fact that only about a quarter of Venezuelan households have access to cable. Víctor Suárez, Un rating inusitado, El Universal, April 20, 2008, http://www.eluniversal.com/2008/04/20/eco_art_inside-telecom_825589.shtml (accessed August 1, 2008). The figures cited are from AGB Panamericana de Venezuela Medición S.A., a branch of Nielsen Media Research.
182 During a four-day period in July 2006, 76 percent of Vives broadcasting consisted of news slanted toward the government and pro-government propaganda. Marcelino Bisbal and Rafael Quiñones, ¿Instrumento de gobierno o institución estatal?, pp. 65-66. Although TVES was ostensibly set up as a plural public service broadcaster, a recent study shows that 8 percent of its programming consisted of government messages promoting Chávez s Bolivarian socialism. Gustavo Hernández, Gubernamental TVES, in Medios de Servicio Público, Comunicación, vol. 139, (2008), p. 28.
183 José Ignacio López Vigil, Golpe de radio: los tres días que transmitimos peligrosamente, (Caracas: Aler, 2007), pp. 52, 61.
184 Except for the creation in 2003 of a pro-Chávez tabloid, Vea, the balance of forces in the print media has not changed significantly.
185 Insult laws are a class of legislation that criminalizes expression which offends, insults, or threatens a public functionary in the performance of his or her official duties. Inter-American Commission on Human Rights, Report on the Compatibility of Desacato Laws with the American Convention on Human Rights, Annual Report of the Inter-American Commission on Human Rights 1994, OEA/Ser/.L/V/11.88, 1995, http://www.cidh.org/annualrep/94eng/chap.5.htm (accessed August 1, 2008). The offense does not necessarily involve a false assertion; for this reason proving its truth is generally no defense. Moreover, it is usually classified not only as a detriment to the honor of the public official in question but also to his or her office. By extension it is often considered an offense against public order.
187 Inter-American Court, Palamara Iribarne v. Chile, Judgment of November 22, 2005, (Series C), No. 35 (2005), http://www.corteidh.or.cr/docs/casos/articulos/seriec_135_ing.pdf (accessed August 1, 2008), para 88.
188 European Court of Human Rights, Castells v. Spain, Judgment of 23 April ,1992, Series A. no. 236, p. 22, para. 42.
190 Joint declaration issued by Abid Hussain, U.N. Special Rapporteur on Freedom of Opinion and Expression; Freimut Duve, OSCE Representative on Freedom of the Media; and SantiagoCantón, OASSpecial Rapporteur on Freedom of Expression, UN Press Release, December 1, 2000, http://www.unhchr.ch/huricane/huricane.nsf/view01/EFE58839B169CC09C12569AB002D02C0?opendocument (accessed on August 1, 2008).
191 Defamation can be defined as a communication that tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Robert D. Sack, Sack on Defamation: Libel, Slander and Related Problems 29 (1999), cited in Bonnie Docherty, Defamation Law: Positive Jurisprudence, Harvard Human Rights Journal, Vol. 13 (2000), http://www.law.harvard.edu/students/orgs/hrj/iss13/docherty.shtml#fn7 (accessed August 1, 2008).
192 Inter-American Declaration of Principles on Freedom of Expression, approved by the Inter-American Commission on Human Rights in its 108th session, 2000, http://www.iachr.org/declaration.htm (accessed August 1, 2008). Principle 10 of the Declaration of Principles states: The protection of a persons reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. Inter-American Commission on Human Rights, Annual Report of the Rapporteur on Freedom of Expression (2002), Chap. 5 (18, 19), pp. 149-154, http://www.cidh.oas.org/relatoria/showarticle.asp?artID=159&lID=2 (accessed August 5, 2008).
193 Inter-American Court, Eduardo Kimel v. Argentina, Judgment of May 2, 2008, Inter-Am. Ct. H. R. (Series C) No. 177 (2008), para. 78, http://www.corteidh.or.cr/pais.cfm?id_Pais=2 (accessed August 5, 2008).
194 Inter-American Declaration of Principles on Freedom of Expression, Principle 10. These standards are similar to the actual malice doctrine, which originated in the United States in the landmark New York Times v. Sullivan case in 1964. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
195 Joint declaration issued by Abid Hussain, U.N. Special Rapporteur on Freedom of Opinion and Expression; Freimut Duve, OSCE Representative on Freedom of the Media; and Santiago Canton, OAS Special Rapporteur on Freedom of Expression, December 1, 2000.
196 Report of the Office of the Special Rapporteur on Freedom of Expression, Annual Report of the Inter-American Commission on Human Rights, 2006. OEA/Ser.L/V/II.127 Doc 4. Rev. 1, March 3, 2007, http://www.cidh.oas.org/annualrep/2006eng/Rapporteurship%20for%20Freedom%20of%20Expression.pdf (accessed July 8, 2007). The report mentions five countries in the region in which defamation or insult prosecutions were underway in 2006: Honduras, Mexico, Paraguay, Peru, Uruguay, and Venezuela.
197 Report of the Office of Special Rapporteur on Freedom of Expression, Annual Report of the Inter-American Commission on Human Rights, 2007, December 29, 2007, OEA/Ser.L/V/II.130, Doc. 22, rev. 1, para. 137.
198 Supreme Court Constitutional Chamber, Jesús Eduardo Cabrera Romero, Case No. 01-0415, July 15, 2003, http://www.tsj.gov.ve/decisiones/scon/Julio/1942-150703-01-0415.htm (accessed August 1, 2008).
199 Criminal Code of Venezuela [Código Penal de Venezuela], Official Gazette, No. 5.494, 2000, http://www.mintra.gov.ve/legal/codigos/penaldevenezuela.html (accessed August 1, 2008), art. 148.
200 Ibid., art. 147.
201 Ibid., art. 149.
202 Joint declaration issued by Abid Hussain, U.N. Special Rapporteur on Freedom of Opinion and Expression; Freimut Duve, OSCE Representative on Freedom of the Media; and Santiago Canton, OAS Special Rapporteur on Freedom of Expression, December 1, 2000.
203 Criminal Code of Venezuela, art. 442.
Elaborating on this point of the law, the Supreme Court has ruled on two occasions that to escape conviction journalists are not necessarily bound to prove the truth of an accusation, provided that they can show they took reasonable steps to confirm information that turned out to be false. Supreme Court Constitutional Chamber, Jesús Eduardo Cabrera, Case No. 00-2760, June 12, 2001, http://www.tsj.gov.ve/decisiones/scon/Junio/1013-120601-00-2760%20.htm (accessed August 1, 2008); Supreme Court Constitutional Chamber, Jesús Eduardo Cabrera, Case No. 01-0415, July 15, 2003, http://www.tsj.gov.ve/decisiones/scon/Julio/1942-150703-01-0415.htm (accessed August 1, 2008). The principle followed by the Supreme Court is consistent with rulings of the Inter-American Court of Human Rights, which has argued that the requirement to prove the truth of an assertion to escape liability on a defamation charge is an excessive limitation on freedom of expression, as it produces a dissuasive, intimidating and inhibiting effect on journalists. Inter-American Court, Herrera Ulloa v. Costa Rica, Judgment of July 2, 2004, Inter-Am. Ct. H.M. (Ser. C) No. 107 (2004), http://www1.umn.edu/humanrts/iachr/C/107-esp.html (accessed August 1, 2008), paras. 132, 133.
204 Mexico approved a federal statute decriminalizing defamation and libel in the case of public officials in 2007. Other countries, such as Argentina and Uruguay, have bills in the legislature. Alejandro Torres, Senado despenaliza delito de difamación, El Universal (Mexico), March 7, 2007, http://www.el-universal.com.mx/nacion/149031.html (accessed August 5, 2008); Asociación Mundial de Radios Comunitarios (AMARC, Uruguay), Gobierno impulsa proyecto de ley para despenalizar delitos de desacato y difamación y injurias, http://politicas.infoycom.org.uy/?q=node/2184 (accessed August 5, 2007).
205 Criminal Code of Venezuela, art. 442.
206 Ibid., art. 444. This law is similar to an insult law in that it criminalizes the expression of insulting language, rather than specific factual allegations. It is not, however, limited to protecting government officials.
208 Criminal Code of Venezuela, art. 450.
209 Human Rights Watch interviews with Julio Balza and Marianella Salazar, Caracas, March 8 and March 15, 2007. Out of 63 court cases against journalists opened since 2002, 26 were still unresolved in 2007. Carlos Correa and Débora Calderón, El Peso de las Palabras, (Caracas: Espacio Público, 2007), pp. 53-60.
210 Prosecutors written statement of charges (Fiscal Sexta a Nivel Nacional con Competencia Plena), Acusación, February 8, 2006.
211 Human Rights Watch telephone interview with Alberto Arteaga, Bravos defense lawyer, Caracas, April 9, 2008. Juan Francisco Alonso, Ordenan reiniciar proceso contra Napoleón Bravo, El Universal, March 13, 2007. The Supreme Court ruled in support of freedom of expression in a July 2005 case in which the attorney general sought to prosecute a news source for an editorial. The attorney general ordered an investigation to determine whether the newspaper El Universal had insulted his office and the countrys judiciary by publishing an editorial entitled Justice on its Knees. The investigation revealed that the attorney generals office could not prosecute the paper for insulting the public ministry since it was not among the institutions authorized to do so under the Criminal Code, nor could it sue for defamation or disrespect as the editorial had not targeted any individual in particular. The attorney general instead presented the case to the Supreme Court and requested that it rule on whether the article offended its institutional honor. In a sound decision, the court concluded unanimously that the article was an expression of opinion and did not amount to an institutional insult. Improcedente solicitud del Fiscal General contra editorial de El Universal," Supreme Court of Venezuela, Press Release, October 5, 2005.
212 Organic Code of Procedure [Código Orgánico Procesal Penal], Official Gazette, No. 5,558, November 14, 2001, http://www.tsj.gov.ve/legislacion/reforma_copp2001.asp (accessed August 1, 2008), arts. 478,494.
213 Supreme Court Criminal Chamber, Eladio Ramón Aponte Aponte, Case No. AA30-P-2005-00534, February 7, 2006, http://www.tsj.gov.ve/decisiones/scp/Febrero/RC05-0534-2.htm (accessed August 1, 2008).
215 Supreme Court Criminal Chamber, Hector Manuel Coronado Flores, Case No. 07-102, April 12, 2007, http://www.tsj.gov.ve/decisiones/scp/Abril/148-12407-2007-C07-0102.html (accessed August 1, 2008).
217 Human Rights Watch interview with Julio Balza, journalist for El Nuevo País, Caracas, March 8, 2007.
218 Carlos Correa and Débora Calderón, El Peso de las Palabras, pp. 78-79.
219 Accidental Court of Appeals of the Criminal Judicial Circuit of Caracas, Jesús Orangel García, Case No. 2968-06, July 12, 2006, http://bolivar.tsj.gov.ve/decisiones/2006/julio/1728-12-S7-2968-06-.html (accessed August 1, 2008).
220 Having previously occupied senior army posts, Usón served briefly as Chávezs finance minister in 2002. He resigned this cabinet post during the April 2002 coup in protest against the governments handling of the opposition protests. After returning to his military duties, in letters to the defense minister, Usón denounced what he claimed were politically motivated promotions in the army and the use of excessive force against protesters. In May 2003 the ministry issued an order forcing him into retirement. Usón continued to participate actively in opposition activities until he was arrested in May 2004 while collecting signatures for the recall referendum.
221 Official transcription by the criminal investigations police (Cuerpo de Investigaciones Científicas, Penales y Criminalísticas, CICPC), October 4, 2004, available at http://www.humanrightsfoundation.org/reports/uson/2.pdf (accessed July 20, 2008).
222 Article 505 of the Organic Code of Military Justice, for example, prescribes a prison sentence of between three and eight years for anyone who insults, offends and disparages in any way the armed forces or one of their units. Organic Code of Military Justice [Código Orgánico de Justicia Militar], Official Gazette, No. 5,263, September 17, 1998, art. 505. A prison sentence of between three and eight years is prescribed for this offense.
223 Supreme Court Criminal Chamber, Deyanira Nieves Bastidas, Case No.05-125, June 2, 2005, http://www.tsj.gov.ve/decisiones/scp/junio/rc05-0125.htm.htm (accessed August 1, 2008).
224 Criminal Code of Venezuela, art. 241.
225 Marianella Salazar, Guerra Electrónica, El Nacional, June 11, 2003.
226 Under Venezuelas laws of criminal procedure, a person who has been publicly accused of a crime may request the Attorney Generals Office to conduct an inquiry into the allegations. If they are proven to be unfounded, the accuser must pay the costs of the investigation. Organic Law of Criminal Procedure [Ley Orgánica Procesal Penal], Official Gazette, No. 5. 208, 1998, http://www.tsj.gov.ve/legislacion/copp.html (accessed August 1, 2008), art. 290. ,
227 Prosecutors written statement of charges (Fiscalía Quincuagésima Sexta, Área Metropolitana de Caracas), Case No. F-01-56-460-03, undated.
228 Salazar appealed the first court decision on the casewhich admitted the accusation against heron the grounds that the judge had not evaluated the evidence properly. A Caracas appeals court accepted the appeal and ordered a new hearing. Court of Appeals of the Criminal Judicial Circuit of the Metropolitan Area of Caracas (Corte de Apelaciones del Circuito Judicial Penal del Area Metropolitana de Caracas), Chamber 9, Case No. 1934-06, October 26, 2006.
229 Ibéyise Pacheco, Entre Delincuentes, El Nacional, May 9, 2003.
230 Ibeyise Pacheco has faced ten prosecutions for defamation, treason, and perjury since 2002. At present, all but one or two have been settled by agreement or have been annulled. Nevertheless, in March 2006, Pacheco was held under house arrest after being sentenced to nine months in prison for defaming an army colonel whom she had accused of faking his academic credentials. She admitted making a mistake, and the colonel pardoned her. Carlos Correa and Débora Calderón, El Peso de las Palabras, pp. 75-76.
231 Pacheco, Entre Delincuentes, El Nacional.
232 Prosecutors written statement of charges (Fiscal Quincuagésimasexta del Area Metropolitana de Caracas), Acusación, undated.
233 David González, Imputaron a Ibéyise Pacheco en expediente abierto por petición del vicepresidente, El Nacional, October 29, 2004.
234 Defense petition to the Supreme Court (Asunto: Petición de Avocamiento), July 26, 2005.
235 Supreme Court Criminal Chamber, Eladio Ramón Aponte Aponte, Case No. 05-000354, April 4, 2006, http://www.tsj.gov.ve/decisiones/scp/Abril/A05-0354-124.htm (accessed August 4, 2008).
236 Luz Mely Reyes, Se buscan recompensa, Últimas Noticias, March 11, 2007; Eliezer Díaz Rangel, Precisiones,Últimas Noticias, March 19, 2007.
237 César Concepción Salza, Chávez: No es justo meter a Irán en supuesta corrupción, Últimas Noticias, March 19, 2007.
238 Criminal Code of Venezuela, art. 144.
239 Luz Mely Reyes, La bonita libertad, Últimas Noticias, March 25, 2007. The letter said: we are concerned that what is expressed in the publications I refer to may form part of a national or international conspiracy, classified as a crime under article 144 of the Criminal Code; or, it may form part of a campaign destined to encourage disloyal competition or simply cause economic damage to people, enterprises and institutions. (Es de nuestra preocupación que lo expresado en las referidas publicaciones pueda formar parte de una conspiración nacional o internacional, tipificada como delito en el artículo 144 del Código Penal; o puede ser parte de una campaña destinada a fomentar la competencia desleal o simplemente causar daños económicos a personas, empresas o instituciones.)
240 Laureano Márquez, Querida Rosinés, Tal Cual, November 25, 2005.
241 Organic Law for the Protection of Boys, Girls, and Adolescents [Ley Orgánica para la Protección de Niños, Niñas y Adolescentes], Official Gazette, No. 5,859, 2007, http://www.tecnoiuris.com/derecho/LOPNA_2007.php (accessed August 4, 2008). Article 65 prohibits the publication of images of children without their consent, as well as of information that could affect their honor or privacy, especially that of victims or alleged perpetrators of crimes.
242 Tribunal de Protección del Niño y Adolescente de la Circunscripción Judicial del Estado Lara, Case No. KP02-V-2006-00226, February 8, 2007.
243 Transcript of Aló Presidente, No. 240, November 20, 2005, http://www.alopresidente.gob.ve/component/option,com_docman/Itemid,54/task,doc_view/gid,78/ (accessed May 8, 2008). In fact, the coat-of-arms was officially changed on March 9, 2006. The horse now looks to the left.
244 All children and adolescents have the right to honor, reputation, and good image. In this way they have the right to a private life and to an intimate family life. These rights cannot be the object o f arbitrary or illegal injuries. (Todos los niños y adolescentes tienen derecho al honor, reputación y propia imagen. Asimismo tienen derecho a la vida privada e intimidad de la vida familiar. Estos derechos no pueden ser objeto de injerencias arbitrarias o ilegales.) Organic Law for the Protection of Boys, Girls, and Adolescents, art. 65.
245 Tribunal de Protección del Niño y Adolescente de la Circunscripción Judicial del Estado Lara, Case No. KP02-V-2006-00226, February 8, 2007.
246 Transcript of Aló Presidente, No. 24, November 27, 2005, http://www.alopresidente.gob.ve/component/option,com_docman/Itemid,54/task,doc_view/gid,79/ (accessed August 5, 2008). Entonces ella me llamó anoche y me dijo: Papá. Ella no reclamó por ella ¿saben? Fue lo más grande, que me llenó de orgullo. Ella me dijo: Papi, es un irrespeto al Escudo, pero no reclamó por ella, sino que reclama por el Escudo, ¿ves? Entonces ¡qué grandes son los niños! ¡Qué grandes son las niñas para darle lección a las bestias que pululan por ahí entre los albañales!
247 The law also contains detailed provisions on scheduling and content restrictions on language, drugs, alcohol, gambling, sex, and violence. It prescribes fines of up to two percent of a TV channel or radio stations income for serious infractions. Law on Social Responsibility in Radio and Television, art. 28.
248 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."
All translations by Human Rights Watch except for text from international instruments, the Venezuelan Constitution, the Social Responsibility Law, and the Regulations on Community Broadcasting.
249 European Court of Human Rights, Incal v. Turkey, judgment of June 9, 1998, (41/1997/825/1031),available at http://www.legislationline.org/legislation.php?tid=112&lid=4884, paras. 50, 59.
250 Art. 29 states: Radio and televisions service providers shall be sanctioned with:
Law on Social Responsibility (official translation issued by CONATEL), art. 29.
251 Law on Social Responsibility, art. 33. Stations are allowed to appeal and present evidence before CONATEL reaches a final decision.
252 Reglamentos de Radiocomunicaciones, Decreto No.2,427, February 1, 1984.
253 Ibid., art. 53(c). The Broadcasting Regulations of 1984 prohibited the transmission of "messages, speeches, sermons, or lectures that incite rebellion or lack of respect for the legitimate institutions and authorities." This article prohibited not only the incitement of criminal breaches of public order, but also expressions found to show lack of respect to authorities, an example of an insult provision. It is to the credit of the government and its supporters that this insult provision was dropped during debate of the Social Responsibility Law.
254 In many cases in which governments have sought to limit language that does not directly advocate violence, the European Court of Human Rights has found the government has gone too far and violated the protection of free speech. For example, in a series of cases, the court has held that speech criticizing democracy and calling for the imposition of Sharia law cannot legitimately be subject to restriction provided that it does not incite violence. European Court of Human Rights, Gunduz v. Turkey, (no. 35071/97), judgment of December 4, 2003, http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699399&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649. The court has held similarly in the case of separatist propaganda. European Court of Human Rights, Association Ekin v. France, (no. 39288/98),judgment of July 17, 2001, http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697480&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649; Okçuoğlu v. Turkey [GC], (no. 24246/94), judgment of July 8, 1999, http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696154&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.
255 Broadcasting Regulation, art. 199.
256 Chávez alertó sobre nuevo plan conspirativo contra Venezuela, Agencia Bolivariana de Noticias, June 17, 2007, http://www.abn.info.ve/go_news5.php?articulo=95289 (accessed May 23, 2008).
257 Consejo de Responsabilidad Social insta a los medios a cumplir Ley Resorte, El Universal, December 2, 2005. http://www.eluniversal.com/2005/12/02/pol_ava_02A639131.shtml (accessed May 23, 2008).
258 Jose Luis Carrillo, Opositores perdieron el chivo y el mecate: Rangel, Últimas Noticias, December 2, 2005.
259 Law on Social Responsibility, arts. 19 (11), (13).
260 Organic Law on Telecommunications [Ley Orgánica de Telecomunicaciones], Official Gazette, No.36,970, 2000, http://www.tsj.gov.ve/legislacion/LT_ley.htm (accessed August 4, 2008), arts. 35 and 40. When the commission was incorporated into the Ministry of Communication and Information following the December 2006 elections the then-minister of telecommunications assumed the position of director general.
261 Law on Social Responsibility, art 20. CONATEL has organized and maintains a register of over 1,078 audience committees, which are often the source of the complaints it investigates. Ministerio del Poder Popular para la Comunicación y la Información, Libertad de expresión: política y estrategia del Estado Venezolano, 2007.
262 Between December 2004, when the Social Responsibility Law entered force, and July 2007 no television station has been punished for incitement, or for any other offense related to coverage of political events or the expression of political views. The sanctions applied against radio stations have been for transmitting race-track advertisements (five cases); failure to broadcast the mandatory number of hours of Latin American and Caribbean music (one case); and breach of the rules on language and sex aimed at protecting children (one case). All of the other offenses were for failure to comply with the stations obligation under the law to present CONATEL with a monthly report on their music programming. CONATEL: Cuadro de Procedimientos Administrativos de la Ley de Responsabilidad Social en Radio y Televisión, (undated), document provided to Human Rights Watch by Franco Silva, CONATEL, March 15, 2007. This information was published in February 2006. In July 2007, a CONATEL official told Human Rights Watch that no other radio or TV stations have been sanctioned since then. Email communication from Aylema Rondón, Manager of Social Responsibility, CONATEL, to Human Rights Watch, July 6, 2007.
As noted previously, the Ministry of Infrastructure opened investigations against Venevisión, RCTV, Globovisión, and Televen in 2003 for alleged infractions of the Broadcasting Regulations during their coverage of the 2002/2003 oil strike. These investigations were never concluded. Human Rights Watch, Caught in the Crossfire: Freedom of Expression in Venezuela, vol. 15 no. 3(B),May 2003, http://www.hrw.org/reports/2003/venezuela/venez0503-03.htm#TopOfPage (accessed August 4, 2008).
263 Letter from Alvin Lezama, CONATEL director, to Guillermo Zuloaga, President of Globovisión, April 6, 2006.
264 Directorio de Responsabilidad Social instala sesión permanente, CONATEL press release, May 26, 2007, http://www.conatel.gob.ve/ (accessed August 4, 2008).
265 Consideran en Venezuela una injerencia postura de la SIP, Telesur, May 27, 2007, http://www.telesurtv.net/secciones/noticias/nota/index.php?ckl=12240 (accessed August 4, 2008); Declaraciones de SIP son un injerencia en Venezuela, Bolivarian News Agency (Agencia Bolivariana de Noticias), May 27, 2002, http://www.abn.info.ve/go_news5.php?articulo=93196&lee=18 (accessed August 4, 2008).
266 Directorio de Responsabilidad Social llamó a ejercer con ética el periodismo, CONATEL press release, May 27, 2007. http://www.conatel.gov.ve/noticia.asp?numn=1972 (accessed May 28, 2008).
267 What IAPA President Rafael Molina said (as quoted in the IAPA press release) was: This is a very easy thing to describe it is nothing more or less than an act of abuse of power in which logic disappears, and we clearly see how a politically-motivated and undemocratic step has been taken to shut down a news outlet that had an independent editorial policy not to the governments liking. According to another IAPA official cited in the press release, we are witnessing one further link in a global strategy that clearly demonstrates how the government is trying to control media and limit the Venezuelan peoples right to know . IAPA calls Venezuelan government undemocratic for taking RCTV off the air, Inter American Press Association press release, May 28, 2007, http://www.sipiapa.com/pressreleases/srchcountrydetail.cfm?PressReleaseID=1925 (accessed August 4, 2008).
268 Vice-President José Vicente Rangel described the abstention campaign as a subversive electoral strike on the same format as April 11, 2002 (un paro electoral subversivo dentro del mismo formato del 11 de abril de 2002). He accused the United States embassy of being behind the campaign. María Lilibeth Da Corte, Planean paro electoral subversivo, El Universal, December 1, 2005, http://www.eluniversal.com/2005/12/01/pol_art_01106AA.shtml (accessed August 4, 2008).
269 The permissive Chávez was buried in 2002, the one who allowed them to call for destabilization: Im not going to allow it, whatever the world says. I recommend that they consider their position carefully. Im considering mine, as in any battle. (El Chávez permisivo quedó enterrado en el 2002, él que permitió que llamaran a la desestabilización. No lo voy a permitir. Diga lo que diga el mundo. Le recomiendo que se midan, los estoy midiendo como en cualquier batalla). María Lilibeth Da Corte, Chávez alerta sobre golpe electoral, El Universal, December 2, 2005, http://politica.eluniversal.com/2005/12/02/pol_art_02106A.shtml (accessed August 4, 2008).
270 Solicitan a los medios propiciar la participación, El Universal, December 3, 2008, http://www.eluniversal.com/2005/12/03/pol_art_03106A.shtml (accessed August 4, 2008).
271 Consejo de Responsabilidad Social insta a los medios a cumplir Ley Resorte, El Universal, December 2, 2005, http://www.eluniversal.com/2005/12/02/pol_ava_02A639131.shtml (accessed on August 4, 2008).
272 Human Rights Watch interview with Franco Silva, general manager of CONATEL, and Aylema Rondón, manager of Social Responsibility in Radio and Television, Caracas, March 15, 2007.
273 Ministro Willian Lara formaliza denuncia contra Globovisión ante el Ministerio Público, Ministry of Communication and Information news release, May 28, 2007, http://www.minci.gob.ve/noticias/1/14030/ministro_willian_laraormaliza.html (accessed August 5, 2008).
274 Ibid. "Venezuela: Gobierno acusa a otro canal, BBC Mundo, May 29, 2007. http://news.bbc.co.uk/hi/spanish/latin_america/newsid_6699000/6699765.stm (accessed August 4, 2008).
275 Diasdado Cabello, the prominent Chavista governor of Miranda state, acknowledged that Globovisión had called for calm, but considered it suspicious that it continued to transmit images of violence as clear evidence of its inflammatory conduct. Cabello advierte a los Guarimberos: no se metan ni con el pueblo ni con el presidente, aporrea.org, May 29, 2007, http://www.aporrea.org/oposicion/n95754.html (accessed May 28, 2008).
276 Human Rights Watch telephone interview with Ana Cristina Núñez, Globovisións legal advisor, May 29, 2008.
277 A tribunal canal de TV por difundir un video, El Universal, October 8, 2007; Globovisión consignó en el CICPC video de asaltos en autopista, El Universal, October 10, 2007.
278 Human Rights Watch telephone interview with Ana Cristina Núñez, Globovisións legal advisor, May 29, 2008.
279 Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res.
217A(III), U.N. Doc. A/810 at 71 (1948), art 19; International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 19(2); American Convention on Human Rights (Pact of San José, Costa Rica), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), art. 13(1). Human Rights Watch has always maintained that this right entails a general right of access to official information. Human Rights Watch, Chile: Progress Stalled-Setbacks in Freedom of Expression Reform, vol. 13, no. 1(B), March 2001.
280 Joint declaration by Ambeyi Ligabo, U.N. Special Rapporteur on Freedom of Opinion and Expression; Miklos Haraszti, OSCE Representative on Freedom of the Media; and Eduardo Bertoni, OAS Special Rapporteur for Freedom of Expression, December 6, 2004, http://www.cidh.org/Relatoria/showarticle.asp?artID=319&lID=1 (accessed August 4, 2008). Principle 4 of the Declaration of Principles on Freedom of Expression, approved by the IACHR at its 108th regular sessions in October 2000, http://www.cidh.org/Relatoria/showarticle.asp?artID=26&lID=1 (accessed August 4, 2008); United Nations Economic and Social Council, Commission on Human Rights, Civil and Political Rights, Including the Question of Freedom of Expression: The Right to Freedom of Opinion and Expression, Report of the Special Rapporteur, Ambeyi Ligabo, submitted in accordance with Commission resolution 2003/42, (New York: United Nations, 2003).
281 Inter-American Court of Human Rights, Claude Reyes Case, Judgment of September 19, 2006, Inter-Am.Ct.H.R., (Series C), No. 151, paras. 76 and 77. Paragraph 76 states: In this regard, the Court has established that, according to the protection granted by the American Convention, the right to freedom of thought and expression includes not only the right and freedom to express ones own thoughts, but also the right and freedom to seek, receive and impart information and ideas of all kinds. In the same way as the American Convention, other international human rights instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, establish a positive right to seek and receive information. Paragraph 77 states: In relation to the facts of the instant case, the Court finds that, by expressly stipulating the right to seekand receive information, Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention. Consequently, this article protects the right of the individual to receive such information and the positive obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the Convention, the State is allowed to restrict access to the information in a specific case. The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, the right to freedom of thought and expression includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State.
Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OAS/Ser.L./V/II 116, Doc. 5 rev. 1 corr. 22, October 2002, para. 281. As stated earlier, the right to freedom of expression includes both the right to disseminate and the right to seek and receive ideas and information. Based on this principle, access to information held by the State is a fundamental right of individuals and States have the obligation to guarantee it. In terms of the specific objective of this right, it is understood that individuals have a right to request documentation and information held in public archives or processed by the State, in other words, information considered to be from a public source or official government documentation.
282 This right has been recognized in Europe since the early 1980s. Toby Mendel, Libertad de Información: derecho humano protegido internacionalmente, Comparative Law of Information (Derecho Comparado de la Información), January-June 2003, pp. 13-19, http://www.juridicas.unam.mx/publica/librev/rev/decoin/cont/1/cnt/cnt3.pdf (accessed August 4, 2008).
The Inter-American Court of Human Rights held in 1985 that effective citizen participation and democratic control, as well as a true debate in a democratic society, cannot be based on incomplete information. Understanding freedom of expression as both the right to express oneself, and the right to obtain information, the Inter-American Court of Human Rights held that freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable in the formation of public opinion. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free. Inter-American Court of Human Rights, Compulsory Membership in an Association prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5, November 13, 1985, para. 70.
The OAS General Assembly has held in 2003, 2004, 2005, 2006, and 2007 that access to public information is an indispensable requirement for a democracy to work properly, and that states have an obligation to ensure it. Access to Public Information: Strengthening Democracy, adopted June 10, 2003, OAS General Assembly Resolution, AG/Res. 1932 (XXXIII-O/03), adopted June 10, 2003; Access to Public Information: Strengthening Democracy, adopted June 8, 2004, OAS General Assembly Resolution, AG/Res. 2057 (XXXIV-O/04); Access to Public Information: Strengthening Democracy, adopted May 26, 2005, OAS General Assembly Resolution, AG/Res. 2121 (XXXV-O/05); Access to Public Information: Strengthening Democracy, adopted June 6, 2006, OAS General Assembly Resolution, AG/Res. 2252 (XXXVI-O/06); Access to Public Information: Strengthening Democracy, adopted June 5, 2007, OAS General Assembly Resolution, AG/Res. 2288 (XXXVII-O/07); http://www.oas.org/juridico/English/regeneas.html.
The Chapultepec Declaration, signed by most heads of state in the hemisphere, and the Lima Principles, endorsed by the OAS and U.N. Special Rapporteurs on Freedom of Expression and Opinion, also recognize this consensus. The Chapultepec Declaration determines in its second principle that every person has the right to seek and receive information, and in its third principle that authorities must be compelled by law to make available in a timely and reasonable manner the information generated by the public sector. The declaration was adopted on March 11, 1994, by the Hemisphere Conference on Free Speech held in Mexico City. Experts and 32 government representatives, including former Mexican President Carlos Salinas de Gortari, endorsed it. Chapultepec Declaration, adopted by the Hemisphere Conference on Free Speech, Mexico City, Mexico, March 11, 1994, http://www.declaraciondechapultepec.org/english/declaration_chapultepec.htm (accessed August 4, 2008). Principle 1 of the Lima Principles establishes access to information as an individual right and as a necessary component for a democratic society. Principle 2 establishes that states must make information available in a timely and complete manner. Lima Principles, adopted by experts on freedom of expression and by the U.N. and OAS Special Rapporteurs on Freedom of Opinion and Expression, November 16, 2000, http://www.cidh.org/Relatoria/showarticle.asp?artID=158&lID=1 (accessed August 4, 2008), principles 1 and 2.
283 Principle 1 of The Publics Right to KnowPrinciples Principles on Freedom of Information Legislation holds that [t]he principle that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances. The Publics Right to Know: Principles on Freedom of Information Legislation, adopted by Article XIX, an NGO working on freedom of expression and access to information, June 1999, http://www.article19.org/pdfs/standards/righttoknow.pdf (accessed August 4, 2008). It was later endorsed by the U.N. and Inter-American systems on human rights. Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OAS/Ser.L./V/II 116, Doc. 5 rev. 1 corr. 22, October 2002, para. 284; IACHR Annual Report 1999, Vol. III, Report of the Office of the Special Rapporteur for Freedom of Expression, chapter II, OEA/Ser.L/V/II.111, Doc. 3 rev., Vol. III; UN Commission on Human Rights, Resolution 1999/36, E/CN.4/2000/63 (January 18, 2000), para. 43.
284 Article 19(3) of the ICCPR and Article 13(2) of the American Convention on Human Rights. The Inter-American Commissions Declaration of Principles on Freedom of Expression states that the right may only be limited exceptionally and such limitations must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies. Inter-American Commission on Human Rights, Declaration of Principles on Freedom of Expression, approved at 108th regular session, October 2000, http://www.cidh.org/Relatoria/showarticle.asp?artID=26&lID=1 (accessed August 4, 2008), principle 4.
Finally, the Johannesburg Principles hold that restrictions must be necessary in a democratic society to protect a legitimate national security interest. Johannesburg Principles on National Security, Freedom of Expression and Access to Information, adopted by Article XIX, November 1996, http://www.article19.org/pdfs/standards/joburgprinciples.pdf (accessed August 4, 2008), principles 1 (d) and 11. The Johannesburg Principles were adopted on October 1995 by experts in international law, national security, and human rights, and were later recognized by the U.N. Special Rapporteur on Freedom of Opinion and Expression and the OAS Special Rapporteur for Freedom of Expression. UN Commission on Human Rights, Report of the Special Rapporteur Mr. Abid Hussain, UNCHR resolution 1993/45, E/CN.4/1996/39, March 22, 1996, para. 154; and Inter-American Commission on Human Rights, IACHR Annual Report 2003, Vol. III, Report of the Special Rapporteur for Freedom of Expression, chapter IV, OEA/Ser.L/V/II.118 Doc. 70 rev. 2.
285 Constitution of Venezuela, art. 143.
287 Organic Law of the Public Administration [Ley Orgánica de la Administración Pública], Official Gazette, No. 37.305, October 17, 2001, http://www.finanzas.usb.ve/loap.pdf (accessed August 4, 2008),arts. 138, 155-157.
288 Ibid., Organic Law of Administrative Procedures [Ley Orgánica de Procedimientos Administrativos], Official Gazette, No. 2.818, July 1, 1981, http://www.tsj.gov.ve/legislacion/lopa.html (accessed August 4, 2008), art. 5.
289 Ibid., art. 100.
290 Human Rights Watch interview with Carlos Aguilar, María Alejandra Díaz, and Lidice Altuve, Ministry of Communication and Information, Caracas, March 15, 2007.
291 Human Rights Watch telephone interview with Mercedes de Freitas, board member, Transparencia Venezuela, July 30, 2007.
292 Doris Villaroel, Reforma a ley de periodismo incluirá acceso a la información, El Mundo, June 26, 2008.
293 Jorge Chávez and Tamoa Calzadilla, 27 de Junio, Día del Periodista: 'Una ley debe penalizar al funcionario que niegue la información, Últimas Noticias, June 26, 2005.
294 Human Rights Watch interview with Tamoa Calzadilla, Caracas, September 20, 2007; Tamoa Caldazilla, En Venezuela los sueldos públicos son secreto del Estado, El Mundo, February 6, 2006, on the difficulty of obtaining information on government salaries.
295 Emilia Díaz and Andrea Daza, Casi dos meses le toma un funcionario contestar una carta, El Mundo, December 26, 2007.
296 Informe Final: Estudio sobre Acceso a la Información Pública en Venezuela, Public Space (Espacio Público): 2007.
297 Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression, Challenges to Freedom of Expression in the New Century, November, 2001, http://www1.osce.org/documents/rfm/2001/11/193_en.pdf (accessed August 4, 2008).
298 Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression, and the African Commission on Human and Peoples Rights Special Rapporteur on Freedom of Expression and Access to Information, Joint Declaration on Diversity in Broadcasting, December 8, 2007, http://www1.osce.org/documents/rfm/2001/11/193_en.pdf (accessed August 4, 2008).
299 American Convention on Human Rights, art. 13 (3).
300 Inter-American Commission on Human Rights, Declaration of Principles on Freedom of Expression, approved at 108th session, 2000, principle 13.
301 IAHCR concerned about freedom of expression in Venezuela, Inter-American Commission on Human Rights press release, No. 29/07, May 25, 2007, http://www.cidh.oas.org/Comunicados/English/2007/29.07eng.htm (accessed August 5, 2008).
302 Under Article 40 of the Organic Law on Telecommunications, CONATELs governing council is presided by its director general and consists of four directors appointed by the president. During 2007 Jesse Chacón, the communication and information minister, also held the post of director general of CONATEL.
303 María Lilibeth Da Corte, No habrá nueva concesión para ese canal golpista RCTV, El Universal, December 29, 2006; No Renovarán la concesión al canal golpista RCTV, posted to YouTube, http://www.youtube.com/watch?v=AujQgo6u4xI (accessed August 4, 2008).
304 Chávez accused these channels, which he did not identify, of dividing Venezuelans in a speech given six months before he announced the decision not to renew RCTVs license. Elizabeth Núñez, Chávez amenaza con revocar concesiones a televisoras en 2007, El Nacional, June 15, 2006,nacional.com/ediciones/archive/default.asp?d=15&m=06&a=2006&archivo=n1_2n1.asp&searchstring= (accessed May 29, 2008).
305 Inter-American Commission on Human Rights, Luisiana Ríos and others v. Venezuela, Case No. 12,441, April 20, 2007, paras. 72-83.
306 Asencion Reyes, Vaya y repítelo todos los días 100 veces más, El Nacional, November 4, 2006, http://web.sumate.org/democracia-retroceso/attachments-spanish/Rafael%20Ramirez.htm (accessed on August 4, 2008).
307 Programs cut by Venevisión included Napoleón Bravos show 24 Horas. Televen pulled Marta Colominas interview programThe Interviewin March 2005 and César Miguel Rondóns opinion program30 Minutesthe following month. Blanca Santos, Soy una víctima de la Ley Mordaza y del régimen, El Universal, March 5, 2005, http://www.eud.com/2005/03/05/til_art_05250A.shtml (accessed August 4,2008); Hugo Prieto, Mucho gusto y muchas gracias, (interview with César Miguel Rondón), Tal Cual, April 28, 2004. Both Colomina and Rondón now broadcast on the opposition radio station Unión Radio.
In a special broadcast in July 2007, Venevisións president, Gustavo Cisneros, defended the stations change of editorial policy, saying that Venevisión had erred by adopting an openly partisan position in Venezuelas political conflict. Whether or not the change was a response to government pressure (as Cisneros seemed to imply in an interview published during the same month in the New York Times) Chávez publicly acknowledged the change in editorial policy (without referring to Venevisión by name). Video: Autopromocion de Venevisión, posted to YouTubeJune 21, 2007, http://eriksez.wordpress.com/category/venevision/page/2/ (accessed August 4, 2008); Simon Romero, Media Mogul Learns to Live with Chávez, New York Times, July 5, 2007.
Venevisión also claimed that its broadcasting concession was renewed because, unlike RCTV, it had carefully followed the legal procedures for renewal. The official resolution denying RCTV its license renewal, however, did not mention any alleged failure of RCTV to comply with the formal procedures. Porqué Venevisión Sí?, Venevisión press release from Venevisións vice-president, Carlos Baldosano, to Human Rights Watch, June 25, 2007.
308 In contrast to the drastic measures taken by Venevisión and Televen, RCTV retained Miguel Angel Rodríguezs morning show La Entrevista (The Interview) until the station was closed on May 27, 2007. Globovisión still runs Leopoldo Castillos call-in program Aló Ciudadano (Hello Citizen). Globovisións license is not due for renewal until 2015.
309 Elizabeth Núñez, Chávez amenaza con revocar concesiones a televisoras en 2007, El Nacional, June 15, 2006, nacional.com/ediciones/archive/default.asp?d=15&m=06&a=2006&archivo=n1_2n1.asp&searchstring= (accessed May 29, 2008).
311 Ministry of Communication and Information, Libro Blanco sobre RCTV (Caracas: MCI, 2007), pp.55-64.
313 Resolution No. 002 of the Ministry of Comunication and Information, Jesse Chacón, addressed by letter to RCTV legal representatives, March 28, 2007. In a letter to United States Senate Foreign Affairs Committee Chairman Sen. Richard Dodd, dated May 22, 2007, Venezuelan Ambassador to the United States Bernardo Álvarez repeated the same argument: Since RCTV was created in 1953, it has occupied the highest quality segment in Venezuelas limited broadcast spectrum. Since its most recent broadcast licensed (granted in 1987 for twenty years) was up for renewal this year, the Venezuelan government legally decided to reclaim the access to the spectrum for the purposes of creating the countrys first public service television station. Letter from Bernardo Álvarez, Venezuelan Ambassador to the U.S., to Senator Richard Dodd, Foreign Affairs Committee Chairman, May 22, 2007.
314 Letter from Jesse Chacón, Nº.0424, to RCTV lawyers, March 28, 2007.
315 Communication and Information Minister William Lara proposed various alternatives: that the workers of RCTV form cooperatives and apply for a new license, that a mixed public-private company take charge of the frequency, or that the state launch an entertainment channel. As the website Venezuelanalysis reported on January 24, William Lara, Minister of Communication and Information, also made a statement regarding the channels signal yesterday, saying that RCTV would be a creation of the Venezuelan people. Speaking at a forum organized by Aproni (Association of Independent National Producers) entitled Towards the Television We Want, Lara stated that the forum must produce results, a concrete proposal as to what should be done with Channel 2 [RCTV], as well as opening the discussion about the democratization of the airwaves. He also added that the proposals for the future of the signal, which are currently being evaluated, included the possibility of giving the license to a cooperative that specializes in the field, or to workers in the television industry. He reiterated that the infrastructure belongs to Channel 2 and that it is only the channels signal that is being recovered. Liza Figueroa-Clark, "Venezuelan television workers to propose management plan for RCTV's airwaves, Venezuelanalysis.com, January 24, 2007, http://www.venezuelanalysis.com/news/2191 (accessed August 4, 2008).
316 Carlos Croes interview with Jesse Chacón, Diálogo con Carlos Croes, Televen, May 27, 2007.
317 As noted below, in 2006 CONATEL had reclaimed 26 VHF frequencies previously assigned to Vale TV, a church-owned station, on the grounds that they had not been used. Le quitaron 26 frecuencias a Vale TV, Quinto Día, April 28, 2006, http://www.sntp.org.ve/mayo613.htm (accessed August 4, 2008).
318 VHF (Very High Frequency) occupies a lower frequency wave band than UHF (Ultra High Frequency). Both types of radio frequency are in use in Venezuela, and both are used by state channels: VTV occupies VHF frequencies, while Vive TV uses UHF frequencies.
319 Carlos Croes interview with Jesse Chacón, Diálogo con Carlos Croes, Televen, May 27, 2007.
320 For example, the communication and information minister defended Chávezs decision stressing that no government spokesman has said that Radio Caracas Televisions installations will be expropriated. Hasta el 27 de mayo operará señal abierta de RCTV, Ministry of Communication and Information (Ministerio de Comunicación e Información) press release, December 29, 2006, http://www.rnv.gov.ve/noticias/index.php?act=ST&f=2&t=42181 (accessed August 4, 2008).
321 Sala Constitucional acordó medida cautelar que garantiza la continuidad de la señal televisa a nivel nacional, Supreme Court press release, May 25, 2007, http://www.tsj.gov.ve/informacion/notasdeprensa/notasdeprensa.asp?codigo=4808 (accessed August 4, 2008).
322 Constitutive Statutory Act of the Venezuelan Social Television Foundation (Acta Constitutiva Estatutaria de la Fundación Televisora Venezolana Social), Official Gazette, No. 38.682, May 14, 2007, http://www.tsj.gov.ve/gaceta/mayo/140507/140507-38682-01.html (accessed August 4, 2008).
323 Gustavo Hernández Díaz, Gubernamental TVES, Centro Gumilla, Comunicación, vol. 139, 2007, pp. 26-30.
324 According to this study, the coverage of RCTV International and Globovisión was equally biased in favor of the NO vote. The three stations with the most balanced coverage were Venevisión, Televen, and Channel 1. Tomás Andersson, Referéndum constitucional: información equilibrada en tres de los siete canales de televisión, Centro Gumilla, Comunicación, vol. 140, 2008.
325 Organic Law on Telecommunications, art. 210. Human Rights Watch interview with Ana Cristina Núñez, then Globovisións legal advisor, Caracas, December 19, 2006.
326 Human Rights Watch telephone interview with Ana Cristina Núñez, Globovisión executive, February 6, 2007.
327 Globovisións submission to the Supreme Court, summarizing the steps taken to obtain authorization to use the frequencies, p.4. Supreme Court Administrative Policy Chamber, Levis Ignacio Zerpa, Case No.2006-0907, November 15, 2006, http://www.tsj.gov.ve/decisiones/spa/Noviembre/02554-151106-2006-0907.htm (accessed August 4, 2008).
328 Not to put frequencies allocated by CONATEL to use is punishable by law. Organic Law on Telecommunications, art. 171(3).
329 The court argued that CONATELs failure to reply to Globovisións repeated requests, what the court referred to as its administrative silence, must be interpreted as a rejection. Supreme Court Policy Chamber, Levis Igancio Zerpa, Case No. 2006-0907, November 15, 2006, http://www.tsj.gov.ve/decisiones/spa/Noviembre/02554-151106-2006-0907.htm (accessed August 13, 2008).
330 Email communication from Nelly Herrera, lawyer for Globovisión, to Human Rights Watch, June 25, 2008.
331 Vive TV, http://www.vive.gob.ve/cobertura.php (accessed July 29, 2008).
332 Unlike the other four large commercial stations, Vale TV does not have a political profile. It mainly retransmits from respected sources like the BBC, National Geographic, and Discovery Channel. It was set up to make educational cable programming available to the mass of people without access to cable, and most of its viewers are from poorer sectors of the community. Human Rights Watch interview with María Eugenia Mosquera, President of Vale TV, Caracas, September 13, 2007.
333 Le quitaron 26 frecuencias a Vale TV, Quinto Día, April 28, 2006, http://www.sntp.org.ve/mayo613.htm (accessed on August 4, 2008).
334 Human Rights Watch telephone interview with María Eugenia Mosquera, April 10, 2008; Norma García, Vale TV teme que su frecuencia sea entregada al Estado, El Mundo, May 29, 2007, http://venezuelareal.zoomblog.com/archivo/2007/05/29/vale-Tv-teme-que-su-frecuencia-sea-ent.html (accessed August 4, 2008).
335 In 1996, the UN General Assembly adopted Resolution A/C. 2/51/L.45, stressing the need to support two-way communication systems that enable dialogue and that allow communities to speak out, express their aspirations and concerns and participate in the decisions that relate to their development. United Nations General Assembly, Sustainable Development and International Economic Cooperation, Resolution A/C.2/51/L.45, A/51/604/Add.8., December 5, 1996.
According to UNESCO, which supports community media initiatives in many parts of the world, community-based media ensure media pluralism, diversity of content, and the representation of a societys different groups and interests. Community media encourage open dialogue and transparency of administration at local level and offer a voice to the voiceless. They are established on the concepts of public access, sharing experiences and information. UNESCO, International Programme for the Development of Communication, http://portal.unesco.org/ci/en/ev.php-URL_ID=14620&URL_DO=DO_TOPIC&URL_SECTION=201.html (accessed August 4, 2008).
336 The Rapporteur stressed that states were bound not to discriminate against them in the award of broadcasting frequencies, intimidate them, or arbitrarily close them down: Given the potential importance of these community channels for freedom of expression, the establishment of discriminatory legal frameworks that hinder the allocation of frequencies to community radio stations is unacceptable. Equally worrisome are those practices that, even when the legal framework is being respected, pose unjustified threats of closure or arbitrary seizures of equipment. United Nations Commission on Human Rights, Report of the Special Rapporteur on Freedom of Expression, Chapter IV.,2002, para. 47.
337 José Ignacio López Vigil, Golpe de Radio: Los 3 Días que Transmitimos Peligrosamente (Caracas: Asociación Latinoamericana de Educación Radiofónica [ALER], October 2006) p. 61. In June 2002, Fe y Alegría, the Jesuit community radio network, was awarded the national prize for journalism and Radio Perola and Catia TV gained honorable mentions.
338 Organic Law on Telecommunications, art. 2.1.
339 Regulations for Non-Profit Public Service Community Radio Broadcasting and Open Community Television (Reglamento de Radiodifución Sonora y Televisión Abierta Comunitaria de Servicio Público Sin Fines de Lucro), Official Gazette, No. 37,359, January 8, 2002, http://www.tsj.gov.ve/gaceta/enero/080102/080102-37359-01.html (accessed August 4, 2008 ), arts. 3, 4, 5, 17.
340 Ibid., third transitory article.
341 The Fund for the Development of Open Public Service Non-Profit Community Radio and Television Broadcasters (Fondo para el Desarrollo de las Emisoras de Radiodifusión Sonora y Televisión Abierta Comunitaria de Servicio Público sin fines de lucro). Erogación de recursos del Fondo de Desarrollo para las Emisoras de Radiodifusión Sonora y Televisión Abierta Comunitarias, de Servicio Público sin fines de lucro, CONATEL, May 13, 2005, http://www.conatel.gov.ve/downloads/comunitarias/Recursos_erogados_13-05-05.pdf (accessed August 4, 2008); Erogación de recursos del Fondo de Desarrollo para las Emisoras de Radiodifusión Sonora y Televisión Abierta Comunitarias, de Servicio Público sin fines de lucro, 2004-2006, CONATEL, www.conatel.gov.ve (accessed May 22, 2008).
342 These figures are posted on the CONATEL website, August 2007, http://www.conatel.gob.ve (accessed August 4, 2008). Redes de Comunicación Popular, Seminario Nacional, Política Social: Una Nueva Paradigma, May 11-13, 2004.
343 Human Rights Watch Interview with Elida Polanco, San Martín, Caracas, March 13, 2007.
344 Human Rights Watch interview with Luis Peña, Radio Nuevo Día, Catia, Caracas, September 21, 2007.
345 Regulations for Non-Profit Public Service Community Radio Broadcasting and Open Community Television, arts. 22, 23, 26, 32. Community radio activists participated in the drafting of the regulations.
346 Ibid. art. 21.
347 Ibid, art. 22.
348 Ibid, art. 23.
349 Ibid, art. 26.
350 Interview with Elizabeth Flores of Radio Perola and member of ANMCLA.
351 The governor of Zulia state, Manuel Rosales, stood unsuccessfully against Chávez in the December 2006 elections. Zulia is one of only two states in Venezuela with opposition governors.
352 When Radio Tropical Stereos license was issued, CONATEL was criticized by the National Association of Free, Alternative, and Community Media (ANMCLA). In the Chavista groups opinion, CONATEL was inexplicably granting licenses to opposition stations like Tropical and La Voz del Pescador, both of which, it said, had openly supported the 2002 coup, while loyal pro-government stations were experiencing bureaucratic obstacles. (Audio) Denuncia: Radio Carmonitaria del Zulia habilitada por CONATEL había apoyado golpe fascista de Abril de 2002, Apporea.org, February 11, 2004, http://www.aporrea.org/actualidad/n13830.html (accessed August 4, 2008).
353 In their appeal, RCTVs lawyers contended that the presidents words of December 2006 constituted an imminent threat. It was clear, they argued, that Chávezs decision was motivated by the fact that the executive does not like the stations ideas, opinions, information, entertainment, publicity, and propaganda, and that the president had the power to enforce it, since Chacón, the minister in charge of adopting the decision regarding RCTVs license, was his hierarchical subordinate. Supreme Court Constitutional Chamber, Luisa Estella Morales Lamuño, Case No. 07-0197, May 17, 2007, http://www.tsj.gov.ve/decisiones/scon/Mayo/920-170507-07-0197.htm (accessed August 4, 2008).
354 According to the Venezuelan constitution, the procedure during which a court analyzes a constitutional injunction should be brief, the competent judicial authority will have the power to immediately restore the legal situation that was affected, or the situation that is most similar to that one, and the court will prioritize these appeals over any other issue. Constitution of Venezuela, art. 27; Law Protecting Constitutional Rights and Guarantees (Ley Orgánica de Amparo sobre Derechos y Garantías Constitucionales), Offcial Gazette, No. 34,060, September 27, 1988, http://www.tsj.gov.ve/legislacion/loadgc.html (accessed August 4, 2008), arts. 13, 16, 17, 23, 26.
355 Supreme Court Constitutional Chamber, Luisa Estella Morales Lamuño, Case No. 07-0197, May 17, 2007, http://www.tsj.gov.ve/decisiones/scon/Mayo/920-170507-07-0197.htm (accessed August 4, 2008).
356 Supreme Court Administative Policy Chamber, Evelyn Marrero Ortíz, Case No. 2007-0411, May 24, 2007, http://www.tsj.gov.ve/decisiones/spa/Mayo/00763-23507-2007-2007-0411.html (accessed August 4, 2008).
357 This completely disregarded the fact that the standard required to grant temporary injunctions is different than the one used to decide on the merits of a case. When adopting temporary injunctions, a court is not required to analyze all the facts of a case, but rather to determine that there is a serious presumption that there would be a violation or threat of a violation of the constitutional rights invoked by the petitioners and that there would be a risk in delaying the decision, which is determined by the mere fact that the previous requirement is met. Ibid., section IV.
358 Since then, the Supreme Court has repeatedly rejected new requests for temporary injunctions by RCTVs legal representatives. Supreme Court Administrative Policy Chamber, Evelyn Marrero Ortíz, Case No. AA40-X-2008-000070, July 30, 2008, http://www.tsj.gov.ve/decisiones/spa/Julio/00883-30708-2008-2007-0411.html (accessed August 4, 2008).
359 Human Rights Watch telephone interview with Moirah Sánchez, RCTVs lawyer, Caracas, June 23, 2008.
360 Supreme Court Constitutional Chamber, Luisa Estella Morales Lamuño, Case No. 07-0197,May 17, 2007, http://www.tsj.gov.ve/decisiones/scon/Mayo/920-170507-07-0197.htm (accessed August 13, 2008).
362 Organic Law on Telecommunications, art. 104. The Ministry of Infrastructure was abolished in 2006 and its functions taken over by the newly created Ministry of Communication and Information, then headed by Jesse Chacón.
363 Chávez took full responsibility for the decision on Hello President: Anyway, some governments of the right (others are respectful because they understand reality) have a world campaign against Venezuela today, against the Venezuelan government for the sole reason that I took the decision and I assume responsibility for it before the entire world, that this bourgeoisie is not going to have its concession renewed (emphasis added). [En fin, algunos gobiernos de la derecha (otros son respetuosos porque entienden la realidad, o la conocen), tienen una campaña mundial contra Venezuela ahora, contra el Gobierno venezolano por el solo hecho de que yo tomé la decisión y asumo ante el mundo entero la responsabilidad, no se le va a renovar la concesión a esta burguesia.] Hello President, No. 284, Unidad Educativa Bolivariana Negra Hipolita, Barloventa, Estado Miranda, April 24, 2007. He reiterated this point in a public address days after the court judgment. As head of state I took a decision several months after reviewing the files, the resumés of each of those enterprises and I made it public. On Sunday (tomorrow) the concession will end and wont be renewed. Durante la exhibición de los Sukhoi el presidente Hugo Chávez negó atentado contra la libertad de expresión, El Nacional, May 26, 2007.
364 In a letter to the RCTVs legal representatives, Chacón insisted that that the expiry of a term is not a punishment. On this reasoning, he argued, due process was irrelevant since it was unnecessary and superfluous to open an investigation to determine the expiry of a time-period. Letter from Jesse Chacón to RCTV lawyers, Nº.0424, March 28, 2007 (see Controlling the Airwaves above).
365 Supreme Court Constitutional Chamber, Luisa Estella Morales Lamuño, Case No. 07-0720, May 25, 2007, http://www.tsj.gov.ve/decisiones/scon/Mayo/956-250507-07-0720..htm (accessed August 4, 2008).
366 Although this court recognizes that all users have the right to access and enjoy a universal public television service, the content of the aforementioned right in Article 108 and 117 of the Constitution consists in principle not of the continuity of a particular VHF sound or television broadcaster but the possibility that users may effectively access the service in question on equal terms, and with the maintenance of a minimum standard of quality, irrespectively of the validity or otherwise of the license or concession of a specific private operator. Supreme Court Constitutional Chamber, Luisa Estella Morales Lamuño, Case No. 07-0731, May 25, 2007, http://www.tsj.gov.ve/decisiones/scon/Mayo/957-250507-07-0731.htm (accessed August 4, 2008).
367 Ibid., section IV. [Se observa que en determinadas ocasiones el objeto de la tutela constitucional requiere de una protección expedita, lo cual responde, a su vez, a la necesidad de asegurar, en su caso, la efectividad del pronunciamiento futuro del órgano jurisdiccional evitando que un posible fallo a favor de la pretensión quede desprovisto de la eficacia por la conservación o consolidación irreversible de situaciones contrarias a derecho o interés reconocido por el órgano jurisdiccional en su momento]. Supreme Court Constitutional Chamber, Luisa Estella Morales Lamuño, Case No. 07-0720, May 25, 2007, http://www.tsj.gov.ve/decisiones/scon/Mayo/956-250507-07-0720..htm (accessed August 4, 2008).
368 In July 2007, shortly after RCTV started to broadcast again in Venezuela as a cable channel (RCTV Internacional), the communication and information minister claimed that the channel must register as a national producer, thereby making it subject by law to the provisions of the Social Responsibility Law, including an obligation to broadcast compulsory presidential addresses. The minister ordered the body responsible for cable operators in Venezuela (the Cámara Venezolana de la Televisión por Subscripción, CAVETESU) to remove RCTV and other national producers from its grid if they failed to register by a tight deadline. CAVETESU appealed to the Supreme Court for an injunction against the minister, claiming difficulty in enforcing the measure since CONATEL had not defined clearly what a national producer was. Its president pointed out that the appeal was not motivated solely by the RCTV case, but by uncertainties about how the measure would affect another 40 cable operators. Gobierno y Cavetesu alcanzan acuerdo, Últimas Noticias, August 4, 2007, http://www.aporrea.org/medios/n99019.html (accessed August 4, 2008).
The Supreme Courts constitutional chamber promptly granted the injunction and stayed the ministerial order, Tribunal Supremo de Justicia admite recurso interpuesto por Cavetesu, Bolivarian News Agency (Agencia Bolivariana de Noticias), August 1, 2007, http://www.abn.info.ve/go_news5.php?articulo=99175 (accessed August 4, 2008).
As of this writing, CONATEL had still not issued a definitive resolution defining a national producer, and RCTV International continued to broadcast as an international cable channel.