Freedom of Expression

Press Release R179/17

Office Of The Special Rapporteur For Freedom Of Expression Expresses Serious Concern Over The Enactment Of The "Anti-Hate Law" In Venezuela And Its Effects On Freedom Of Expression And Freedom Of The Press

November 10, 2017

Washington D.C. − The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) expresses its serious concern over the enactment of Venezuela’s "Anti-Hate Law for Peaceful Coexistence and Tolerance," which was passed in an expedited procedure by the National Constituent Assembly. In the name of "peace, public tranquility, and the nation," its provisions establish exorbitant criminal penalties and powers to censor traditional media and the Internet, contrary to the international standards on freedom of expression.

The "Anti-Hate Law" was passed by the National Constituent Assembly on November 8, and ratified without the intervention of the National Assembly. Although the general part of the law asserts the legitimate objective of promoting diversity and tolerance and eradicating all forms of hatred, discrimination, and violence based on discrimination, and preserving peace and public tranquility and protecting the nation, President Nicolás Maduro stated prior to its enactment that the objective was "to counteract the campaign of hatred, terror, and violence that has been promoted by the extremist sectors of the opposition."[1]

By implementing these principles, the law ignores and suppresses the free exercise of the right to freedom of thought and expression. Through a series of extremely broad, vague, and ambiguously defined offenses, the State will be able to criminally punish speech that may be protected by the right to freedom of expression. It will even be able to suppress content, by granting the State the power to block Internet websites and revoke the licenses of audiovisual media outlets. The law also gives the government the ability to use radio or television spots—free of charge—to impose official messages.

Article 20 of the law prescribes penalties of "ten to twenty years" in prison for "any person who publicly, or through any means of public dissemination, encourages, provokes, or incites hatred, discrimination, or violence against a person or group of persons, based on their real or perceived membership in a particular social, ethnic, or religious group, sexual orientation, gender identity, gender expression, or any other discriminatory basis." It further establishes that these offenses will not be subject to any statute of limitation, which violates the basic principles of minimum criminalization.

In Article 22, the law also provides for the revocation of licenses for radio or television service providers that "disseminate messages that constitute propaganda advocating war or national, racial, religious, political, or any other kind of hatred." The same article provides for the assessment of a fine ranging from 50,000 to 100,000 tax units against legal entities responsible for social networks and electronic media that fail to delete such messages within six hours of posting, without prejudice to other criminal and civil penalties.  

Article 23 of the law establishes monetary penalties ranging from three to four percent of the gross income of radio or television service providers that "fail to comply with the obligation to provide advertising space free of charge for the dissemination of messages to promote diversity, tolerance, and mutual respect, as well as to prevent and eradicate all forms of political violence, hatred, and intolerance."  

In the opinion of the Office of the Special Rapporteur, such restrictions could severely hinder the exercise of the right to freedom of expression in Venezuela and give rise to a strong chilling effect incompatible with a democratic society. In the initial analysis, three aspects stand out as alarming: a) the use of vague concepts and exorbitant penalties not subject to any statute of limitations to criminalize speech concerning matters of public interest; b) the imposition of burdensome obligations on all media outlets, including the suppression and deletion of information of public interest; c) the broad power granted to the State to use media outlets and impose content.

With respect to the creation of codified offenses to penalize the "promotion or incitement of hatred," it should be underscored that Article 20 of the law punishes with "ten to twenty years in prison" any person who "promotes or incites" discrimination or violence. Although the right to freedom of expression is not an absolute right and is subject to limitations, under international law those limitations can only be established to the extent necessary to guarantee certain public interests or the rights of other persons. According to international law, which includes the American Declaration of the Rights and Duties of Man and the system of subsequent liabilities established in Article 13 of the American Convention, the limitations must be established in clearly and precisely worded laws;  they must be oriented toward attaining compelling objectives authorized by international law; and they must be necessary in a democratic society for the accomplishment of the objective they pursue, strictly proportional to that objective, and suitable for its achievement.

In keeping with Article 13.5 of the American Convention, the IACHR and its Office of the Special Rapporteur have maintained that it is lawful to prohibit speech that constitutes the incitement of violence for discriminatory reasons. In the universal human rights protection, in order for speech to be considered a "hate crime," it must be interpreted in accordance with Articles 18 and 19 of the International Covenant on Civil and Political Rights (ICCPR) in order to guarantee, among other things, respect for the rights of others or public order. In this regard, the States may "prohibit" or penalize that type of speech, but only when it constitutes "incitement" to discrimination, hostility, or violence, in accordance with Article 20.2 of the ICCPR.

In their report on Violence against LGBTI Persons, the IACHR and the Special Rapporteur for Freedom of Expression considered that, in light of the general principles of treaty interpretation, "advocating hatred" against people based on their sexual orientation, gender identity, or bodily diversity is criminally punishable when it constitutes incitement to violence or to "any other similarly unlawful action."  

Formulas such as those used on Venezuela’s "Anti-Hate Law" that establish vague and open-ended offenses such as the "promotion or encouragement" of all kinds of "discrimination" make it possible to prohibit a wide range of public speech that is protected by international law. Furthermore, it is particularly troubling that such broad and ambiguously defined offenses are punishable by excessive prison terms (ten to twenty years), which will have a systemic chilling effect in Venezuela’s public forums and social networks.

In addition, the "Anti-Hate Law" imposes on all media—print, radio, television, and subscription-based, as well as those media whose content can be created or reproduced on the Internet—a number of limitations in the name of "peace, public tranquility, and the nation," and gives the State excessive powers.

The Office of the Special Rapporteur also wishes to emphasize the lack of precision and clarity in the set of obligations placed on media outlets and Internet platforms. According to the text, the law requires media outlets—through broad and ambiguous provisions that criminalize the mere dissemination of content—to screen, and even decide whether to keep or censor, the speech of third parties. This has the potential to create a chilling and intimidating effect incompatible with a democratic society. It is essential that the regulatory framework provide legal certainty to the media and specify, in the clearest and most precise terms possible, the conditions for the operation of media outlets and the limitations to which the exercise of the right to freedom of expression is subject.

The Office of the Special Rapporteur considers it extremely important for the authorities to set aside the recently enacted law and to develop an open and participatory discussion on the issue of incitement to violence based on discrimination or through other kinds of speech, in light of the principles of international human rights law, and to correct those aspects that could lead to serious violations of the right to freedom of expression in Venezuela.

The Office of the Special Rapporteur for Freedom of Expression was created by the IACHR to encourage the defense of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system.

R179/17

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