The conflict between President Hugo Chávez Frías and the private media showed no signs of subsiding in 2003. In his weekly radio and TV call-in program “Aló, Presidente” (Hello, President) and in frequent speeches, Chávez continued to lambaste the private press and accuse media owners of being “coup-plotters” and “fascists.” Chávez continued to use cadenas–nationwide simultaneous radio and television broadcasts that pre-empt all regular programming–and state-owned media to counter private news coverage, which remained heavily biased toward the opposition.
The political situation in Venezuela is defined by a polarization between supporters of Chávez, a populist president who has maintained considerable support among the poor, and his political opponents, who feel threatened by Chávez’s agenda of radical reform. This crisis sparked an upheaval in the country several years ago that has more recently evolved into a political stalemate.
The private media continued to plunge into the political arena in 2003, unabashedly promoting the agenda of opposition parties while ignoring professionalism and balance. According to local sources, because opposition parties in Venezuela are either discredited or divided, the media have stepped in to fill the vacuum, becoming an extremely powerful source of government opposition.
In early 2003, while the country was engulfed in a nationwide, two-month general strike called by opposition forces and supported by private media, Chávez repeatedly threatened to cancel broadcasting concessions held by private television channels. In January and February, the National Telecommunications Commission (Conatel) launched administrative proceedings against the private channels Globovisión, RCTV, Televén, and Venevisión to determine whether they had violated media broadcast regulations. The channels could be fined or have their licenses suspended temporarily or permanently. Based on CPJ research, the proceedings, which remained pending at year’s end, are based on telecommunications regulations inconsistent with international standards on freedom of expression and could foster a climate of self-censorship.
In October, Conatel confiscated Globovisión’s microwave broadcasting equipment and opened new administrative proceedings into the 24-hour news channel’s alleged use of unauthorized broadcasting frequencies. Globovisión rejected Conatel’s allegations and said that, as a result of the confiscation, it could not broadcast live from outside its headquarters.
On October 3, the Washington, D.C.–based Inter-American Commission on Human Rights (IACHR), an entity of the Organization of American States (OAS), issued precautionary measures in favor of Globovisión asking the Venezuelan government to suspend the proceedings and return the confiscated equipment. On October 24, the IACHR further requested that the Venezuelan government urgently guarantee Globovisión access to a simple and swift appeal process before impartial judges. However, in December, Conatel fined Globovisión 582 million bolívares (US$360,000) and kept the confiscated equipment. Globovisión announced it would appeal the decision to the Supreme Tribunal of Justice (TSJ), Venezuela’s highest court.
In a worrying development, on July 15 the TSJ upheld several “contempt” and criminal defamation provisions in the Penal Code. The TSJ’s Constitutional Chamber dismissed a March 2001 appeal filed by Rafael Chavero Gazdik, a lawyer who has written numerous articles on constitutional issues. Chavero’s appeal claimed that Penal Code Articles 141, 148-152, 223-227, 444-447, and 450 violate the Venezuelan Constitution, as well as Venezuela’s international obligations, particularly under Article 13 of the American Convention on Human Rights, which guarantees the rights to freedom of expression and information.
Articles 148-152 and Articles 223-227 include desacato (contempt) provisions, which criminalize expressions that are offensive to public officials and state institutions; Articles 444-447 and Article 450 address criminal defamation and slander; and Article 141 establishes criminal penalties for destroying the Venezuelan flag and other national symbols.
Chavero filed the appeal as a private citizen, a procedure that is legally available to all Venezuelans. He cited the IACHR’s 1994 “Report on the compatibility of desacato laws with the American Convention on Human Rights,” which argued that desacato laws contravene Article 13 of the convention because they restrict freedom of expression. He maintained that as an OAS member, Venezuela should repeal desacato provisions or amend them in accordance with international standards, as recommended by the IACHR report.
Chavero also asked the TSJ to repeal criminal defamation provisions or update them by introducing the “actual malice” standard in cases where the person offended is a public official or a public person. (The “actual malice” standard, first articulated by the U.S. Supreme Court in the 1964 case New York Times Co. v. Sullivan, requires a plaintiff to prove not only that the offensive expression or published information is false, but also that the defendant knew or should have known it was false at the time the expression or information was disseminated.)
The TSJ ruling, written by Justice Jesús Eduardo Cabrera Romero, rejected Chavero’s arguments and instead ordered that the wording of Articles 223, 224, 225, and 226 be amended slightly. Explaining his opposition to the repeal of desacato laws, Justice Cabrera maintained that state institutions could not stand defenseless against abuses of the right to freedom of expression, and that, at least in the context of Venezuela, desacato laws served as a barrier against such abuses.
In addition, the TSJ ruling found that Venezuelan laws are compatible with the American Convention on Human Rights. The tribunal stated that Articles 57 and 58 of the Venezuelan Constitution, which establish the right to freedom of expression and the right to information, offered broader protection to society as a whole than that provided under Article 13 of the American Convention, and, therefore, should be applied with preference. Furthermore, the TSJ’s decision specified that the recommendations issued by the IACHR in its 1994 report were not legally binding.
After the ruling was delivered, Eduardo Bertoni, the IACHR’s special rapporteur for freedom of expression, issued a communiqué decrying the tribunal’s decision. Although the IACHR’s recommendations are not legally binding, they represent the commission’s interpretation of existing international law regarding freedom of expression.
The Law of Social Responsibility in Radio and Television, a controversial bill drafted by Conatel and introduced in January before the National Assembly by Chávez’s ruling Movimiento Quinta República (MVR), was approved in committee. At the end of 2003, the law was awaiting a second debate by the full National Assembly, which is controlled by the MVR and its allies. While the government says the bill is needed to “establish the social responsibility” of television and radio broadcasters, the private broadcasting media view the bill as an attempt to muzzle them and as a way to impose censorship on the press. Although the bill was stripped of some of its most onerous provisions by the National Assembly’s Science, Technology, and Media Committee, the legislation still contains broad restrictions that could affect the right to freedom of expression. The bill is also excessively punitive, local sources said. For instance, television and radio broadcasters that disseminate messages that “promote, defend, or incite a breach of the legal order in force” may be suspended for up to 72 hours. If a media outlet repeats the infraction within the next five years, its broadcasting concession may be suspended for up to five years.
In November, government and opposition representatives met with directors of private and state-owned media organizations to seek guarantees that their political advertising campaigns would have equal access. At the end of 2003, government and opposition representatives were collecting signatures for possible recall referendums on several legislative and presidential terms. The lawmakers were concerned about balanced coverage in the media.