Freedom of Expression
Venezuela
1. Between February 5 and 8, 2002, the Rapporteur’s office accompanied the Commission’s Executive Secretariat on a visit to the Bolivarian Republic of Venezuela to observe and gather information on the prevailing situation with respect to freedom of expression in the country and to draw up a preliminary evaluation for preparing a on-site visit there that the Commission is to make during 2002. The visit was also in response to requests made by different sectors of civil society concerned about recent events vis-à-vis freedom of expression in the country.
2. Without prejudice to the information that will ultimately be published in the freedom of expression chapter in the Commission’s country report, the Rapporteur expresses his concern about the recorded increase in the number of acts of physical violence and harassment suffered by journalists and some media outlets. During this visit, the Rapporteur was able to detect a mood of intolerance and political polarization which, if it continues, could threaten full and responsible enjoyment of free expression and the maintenance of the rule of law for upholding democratic institutions.
3. The Rapporteur’s office received information indicating that numerous journalists, camera operators, and photographers have suffered from physical and verbal aggression. These media workers described their reluctance to identify themselves as such when covering government events, out of fear of reprisals or of being attacked. They also stressed how important it was for both the government and the rest of civil society to refrain from identifying them as allies of the opposition; only in that way can they perform their task of keeping Venezuelan society informed without suffering arbitrary consequences or acts of intimidation.
4. It should also be reported that government officials and certain sectors of civil society alike expressed their concern about the fact that some media outlets are being used as mere tools of political opposition to provide a loud voice of dissent against the government of President Hugo Chávez Frías, undermining the task of providing society with truthful, impartial, and timely information.
5. In connection with this, the Rapporteur would like to point out that private media outlets cannot be required to provide truthful, impartial, and timely information since this would constitute prior censorship, which is forbidden by the American Convention. Debating and exchanging ideas is the main mechanism for seeking out truth based on a plurality of ideas, opinions, and information. The Rapporteur holds that a plurality of opinions arises from the number of distinct ideas disseminated within society over different media.
6. In light of this situation, the Rapporteur would like to note that in the interest of strengthening Venezuela’s democracy and fully guaranteeing free expression and the rule of law, the Venezuelan State must work to provide an atmosphere that guarantees enjoyment of free speech within the framework of the law. It must also seek out channels for understanding that will allow it to better tolerate criticism and scrutiny of government undertakings, thus ensuring full enjoyment of freedom of information and expression.
I. Judicial Actions
7. The Rapporteur’s office has received information indicating that summary administrative proceedings begun by the Venezuelan National Telecommunications Commission (CONATEL) in connection with the programming and advertising carried by several television stations, together with tax inspection proceedings, are being used to intimidate certain media companies. According to these reports, over 2001 and into January 2002, the CONATEL state agency sent the Venevisión television corporation more than 100 citations relating to the content of its newscasts. Similar summary administrative proceedings have been initiated against other television companies: RCTV, Globovisión, and Vale TV.
8. On May 17, 2001, CONATEL informed Vale TV that administrative proceedings had been launched to determine the existence of possible grounds for revoking the network’s broadcasting license. It was CONATEL itself that on December 3, 1998 reserved frequencies for Vale TV and authorized it to begin transmissions. On October 25, 2001, the Rapporteur’s office asked the State of Venezuela for information regarding the current situation of Vale TV.
9. On October 18, 2001, proceedings began against Globovisión, which could lead to sanctions under the Telecommunications Law. The proceedings began after the station broadcast, on September 29, 2001, a statement from a taxi-driver regarding the assassination of nine of his colleagues; only one had actually been killed and, some time later, Globovisión transmitted a rectification. The state agency CONATEL began proceedings under Articles 53 and 59 of the Radiocommunications Regulations, which prohibit the transmission of “false, deceitful, or biased news” and require truthfulness in broadcast information. The punishment can range from a monetary fine to the temporary or permanent cancellation of the station’s license.
10. Prior to these events, at a public ceremony held on October 4, President Hugo Chávez Frías had accused Globovisión of opposing “the peaceful and democratic revolution” in Venezuela. The Caracas daily El Nacional reported that according to statements made by the president, frequency concessions were a matter of state; it then offered a warning: “There should be no cause for surprise if, for reasons of national interest, those concessions are reviewed.”[1]
11. The Rapporteur noted in a press release[2] his concern at the existence and enforcement of legislation that contravened international free-speech standards. Article 53 of Venezuela’s Radiocommunications Regulations establishes that: “Broadcast stations are absolutely forbidden to transmit: (...) (j) False, deceitful, and biased news or reports (...); (k) Information encouraging speculation or containing deceitful statements or dubious warnings.” Article 59 of those same regulations also provides that: “Broadcast news and information must come from reliable sources that offer a guarantee of seriousness and precision. In general, information must be succinct and limit itself to reporting the facts in question, avoiding personal interpretations and comments.”
12. CONATEL’s administrative proceedings also make reference to Article 58 of the Bolivarian Constitution of Venezuela, which reads: “Communication is free and plural, and it entails the duties and responsibilities set forth in law. All persons have the right to timely, truthful, and impartial information, free of censorship, in accordance with the principles of this Constitution.” The Rapporteur has on several occasions made statements regarding this article and its incompatibility with the freedom of expression guaranteed by Article 13 of the Convention. The right to information covers all information, even that which, in opposition to “truthful,” could be considered “erroneous,” “untimely,” or “incomplete.” The doctrine of “truthful” information represents a backward step for freedom of expression in the hemisphere, in that the free flow of information would be restricted by its prior assessment, in contravention of the broad view taken of this right within the inter-American system.
13. Initiating proceedings based on legislation that follows this truthful information doctrine poses a serious threat to full enjoyment of freedom of expression. In this regard, the Inter-American Courthas stated that:
One cannot legitimately rely on the right of a society to be honestly informed in order to put in place a regime of prior censorship for the alleged purpose of eliminating information deemed to be untrue in the eyes of the censor.
14. The Rapporteur has on several occasions said that a state’s use of legislation that violates free expression restricts the development of democracy by curtailing the free debate of ideas and opinions.[3]
II. Intimidation
15. In May 2001 a fire destroyed the premises of the daily La Opinión in the Cojedes state. The Oviedo family, which owns the paper, accused the state governor, Jhony Yanez Rangel, of starting the fire; the governor, in turn, placed the blame on the family.[4]
16. On May 18, 2001, the radio program Responda, Mundial pregunta was taken off the air. The program’s host, Fernando Silva, reported that upon being notified of the shutdown, he was told that the orders had come from above. Silva claimed that the measure was the result of allegations made on his program about fraudulent hirings on the part of the mayor of Caracas, former minister Alfredo Peña.[5]
17. The Rapporteur’s office received information on the use of public sector advertising purchases to undermine or influence the editorial line of some media companies, including the dailies El Universal, El Nacional, Tal Cual, andLa Razón. The Rapporteur notes that state agencies must establish clear, fair, and objective guidelines for deciding where official publicity is to be placed. In no instance may official advertising be used with the intent of harming a media outlet or of favoring one over another.
III. Legislation
18. On June 12, 2001, the Supreme Court issued a ruling denying journalists and other media commentators the right to reply and condemning the ideological leanings of columnists. This resolution arose from the dismissal of a remedy lodged by the journalist Elías Santana, who had claimed the right of reply on President Hugo Chávez’s radio program Alo Presidente.
19. This ruling had a major impact on the human rights and free speech communities, both in Venezuela and abroad. The Rapporteur’s office received numerous statements of concern from different quarters, expressing alarm at what this ruling could mean for free expression and democracy alike.
20. One of the basic notions behind these instruments and the rights they enshrine is the full enjoyment, on a nondiscriminatory basis, of the right of free expression and the right of reply. In this respect, the Commission has ruled that member states must eliminate provisions that discriminate against individuals and keep them from fully participating in their countries’ political, economic, public, and social life. The American Convention protects the right of nondiscrimination as a basic pillar in strengthening and upholding the hemisphere’s democratic systems.[6]
21. The exclusion of any sector of society from exercising the rights guaranteed by the Convention hinders the broad development of democratic, pluralistic societies and exacerbates intolerance and discrimination. In the case of María Eugenia Morales de Sierra from Guatemala, the Commission said that, “a norm that deprives a portion of the population of some of its rights—for example, because of race—automatically injures all the members of that race.”[7] Thus, for example, denying media workers the right to reply would constitute a limitation of a right enshrined in the American Convention with respect to a part of the population—in this case, journalists and similar professions.
Other
22. The Rapporteur notes with concern the disproportionate and indiscriminate use of official broadcasts in the media. Several sectors of civil society told the Rapporteur’s office that the frequency and duration of these broadcasts were “abusive,” in that they did not always serve the public interest.
23. The Rapporteur’s office was also informed about the absence of mechanisms to provide Venezuelan society with access to state-held information. Article 28 of the Venezuelan Constitution ensures access to personal data held in both state and private records as well as access to all kinds of documents that are of interest to the community. In practice, however, this right is curtailed. The Rapporteur has made statements on several occasions about the importance of the right of access to information as a way to strengthen democracy and ensure transparency through oversight of the workings of government. The IACHR has on a number of occasions underscored the importance of guaranteeing mechanisms that allow effective access to information held by the state.
24. The Rapporteur was also told about the existence of a draft bill on programming content that could contain provisions that would undermine free expression, in particular by allowing prior censorship. The Rapporteur again points out that the jurisprudence of the inter-American system holds that the prior censorship of any statement, opinion, or information must be prohibited and that, in accordance with Article 13 of the American Convention, liability must be established on a post-facto basis.
[1] This information was provided by the Committee to Protect Journalists (CPJ), an organization that defends free expression.
[2] See, in the annexes, Press Release No. 45/01, Office of the Special Rapporteur for Freedom of Expression.
[3] See the seventh principle of the Declaration.
[4] This information was provided by the Press and Society Institute (IPYS), an organization that defends free expression.
[5] Ibid.
[6] See: American Convention on Human Rights, Chapter I, General Obligations: Article 1: Obligation to Respect Rights, and Chapter II, Civil and Political Rights, Article 13: Freedom of Thought and Expression.
[7] See: IACHR, Case 11.625, María Eugenia Morales de Sierra, Guatemala, January 19, 2001.