ARTICLE

Georgetown Journal of International Affairs, Winter/Spring 2006

Media Crackdown: Chávez and Censorship (Full Text)

By Roger Atwood

In December 2006, Venezuelan President Hugo Chávez will be seeking reelection in one of the most restrictive climates for press freedom in Latin America.(1) Laws enacted since late 2004 by the Venezuelan Congress, where Chávez's party and its allies hold a solid majority of seats, have sharply reduced the latitude with which Venezuelan media can report on political figures in their country and strengthened the central government's power to fine or imprison journalists and close down news outlets. The new statutes, with Draconian punishments for offenders, run contrary to the trend throughout Latin America of liberalizing press laws and widening space for debate and editorial opinion. This article will review the new legal restrictions on the media, describe their effects so far, and offer some predictions as to their impact on debate in the upcoming presidential campaign and beyond.

One of the new legislation's key elements is a reform of the penal code to fortify so-called "insult laws" barring any potential criticism of high public officials. Another law dictates content on television and radio broadcasts. While the new laws appear aimed at encouraging reporters and opinion-writers to restrain or censor themselves in what they write or broadcast, the legislation also gives authorities wide discretion to punish journalists and the news organizations for which they work - if and when authorities choose.

Despite the newly restrictive legal system in which the media operate, Venezuelans still enjoy fairly lively political debate in the press and society. Legal scholars, editors and free-press monitoring groups say the new codes, which came fully into effect in June 2005, have already blunted some of the harshest criticism of the government among opinion writers, however, and created a pernicious climate of self-censorship among reporters that has begun to affect the quality of coverage and public debate. The new restrictions have taken effect in a context of growing intolerance of dissent by the government, following a long period of turmoil that included a brief-lived coup against Chávez, a 62-day general strike, and a recall referendum that Chávez won handily, all since 2002. During those struggles, some mass-media outlets took an overtly anti-Chávez stand, with some television channels, for example, refusing to show pro- Chávez demonstrators while lavishing coverage on anti-government rallies. Supporters of the new laws say their objective is to force media owners to be more responsible and objective in their coverage, while critics say the laws go too far in restricting freedoms. At stake is how, and even whether, media in Venezuela will be able to fulfill the crucial role that media play in democracies everywhere: informing citizens and giving them the tools to debate government policies and priorities.

Gag me with a Law Insult laws or "gag laws" as they are also known, have a long pedigree. Only fifteen years ago, nearly every country in Latin America had some statute on the books prohibiting disrespectful or abusive speech toward the president, high officials, or government institutions. Vaguely worded and seldom enforced, such laws generally posed few real barriers for the news media or public at large, at least during periods of civilian rule. They did, however, create a de facto privileged class of people - high public officials - who enjoyed stronger legal protections than everyone else. The Inter-American Commission on Human Rights officially recommended the abolition of such laws in 1994 and most countries have done so, including most recently Argentina, Paraguay, Guatemala and Honduras. In those countries, high government officials remain protected by ordinary libel and defamation statutes, similar to those in the United States, which also protect ordinary citizens.

Venezuela's current insult laws date from 1964. (2) Although rarely enforced, these codes threatened jail for those who "offend in speech or writing or in any other way show disrespect for the president." (3) A long list of other high officials, including state governors and cabinet ministers, enjoyed similar protections but with lighter punishments for offenders.

In light of the IAHCR's recommendation and international support to abolish insult laws, the Venezuelan Supreme Court took a nationalist tone in its ruling upholding the constitutionality of insult laws in July 2003, claiming that global calls to retire such laws do not apply to Venezuelan "reality" because they "act as a barrier to the abuse and disrespect of freedom of expression and those situations that endanger the State itself and that could affect the independence of the country." (4) Congress then passed a thorough reform of the Venezuela penal code that took effect on 16 March 2005. Insult laws and other statutes that could be used to restrict freedom of press and expression were strengthened and extended to more areas of society. The following officials were added to the list of authorities protected from offensive speech: members of Congress, the military command, and the national elections board. Virtually every prominent public official in Venezuela is now legally entitled to seek redress for any speech or text deemed offensive or disrespectful, whether true or not.

A potentially much more important change came in a new article, 297-A, apparently without precedent in Venezuelan law, which criminalized the use of any media - text, broadcast, electronic, Email, even street pamphlets - by any person to spread "false information" . . . that is intended to cause or causes panic in the collectivity or to keep it in a state of anxiety (zozobra)." Offenders could receive jail sentences of up to five years - up to seven for civil servants who spread such information anonymously.

Media law experts say the law aims to intimidate the press. "Article 297-A promotes self-censorship, strengthens veracity as the previous condition for the release of any information, and affects the privacy of communications," wrote two commentators, one a lawyer and the other a journalist.(5) They and other commentators note that most opinion writing could be challenged as "inaccurate" if the person criticized does not like the opinion. Opinion is by nature a subjective judgment by the writer of someone else's actions or statements. By enshrining the ability to challenge opinion in court with heavy fines for offenders, the law seems aimed at creating inimical to the airing of any critical opinion. The determination of what constituted "false" information and "panic," and whether one had contributed to the other, would be left to the discretion of a judge, increasing the potential for use of the law as a tool to suppress dissent at a time when the justice system, including the Supreme Court, is dominated by Chávez appointees. (6) Other changes to the penal code include stiffer penalties for libel and defamation and a small but significant change in the definition of what constituted an illegal public disturbance. In the 1964 code, a peaceful gathering or demonstration had to raise "the danger of a catastrophe" before it would be considered illegal. The new code threatens jail of up to ten years for any public act that raised "the danger of a serious accident (siniestro)," a vague and completely subjective definition that could include causing traffic jams. Even "shouting and other vociferations, including abuses of bells and other noisemaking instruments" was now punishable by fines. (7)

The government at first gave few signs it intended to enforce the beefed-up insult laws. Chávez's chief spokesman, Information Minister Andres Izarra, even told a visiting American reporter that he personally opposed them. (8) Yet the plain intent of the reforms - to plant a self-censoring bug in the mind of every reporter, editor and opinion-writer working for an anti-government news organ - was not lost on the media or the public. "That is what is so Machiavellian about this law. It gets the news media to censor themselves so that the government doesn't have to, and you start to see the effects: newscasts that don't inform, fewer political programs, more entertainment," said Teodoro Petkoff, editor-in-chief of the Caracas daily, Tal Cual, which is known for its bitingly satirical editorials against both government and opposition. (9) Television and radio broadcasters pulled no fewer than three prominent political talk shows off the air. If the goal was to encourage news organizations to cool their hottest anti-government rhetoric without resorting to the unpalatable task of taking them to court, it seemed to be succeeding.

In late July, four months after the reform took effect, the government signaled that it intend to make real use of its strengthened powers against the media. The country's highest law-enforcement official, General Prosecutor Isaias Rodriguez, announced a penal investigation against the daily newspaper El Universal and sent instructions to a lower prosecutor to begin gathering evidence for a lawsuit. The offense committed by El Universal, the prosecutor said, was an unsigned editorial published on July 25 entitled "Justicia arrodillada" (Justice on its knees) that charged that the Venezuelan justice system had been politicized and made subservient to the executive branch. The editorial echoed opinions made by numerous opposition politicians and independent human rights and advocacy groups, but Rodriguez charged that it violated Article 225 of the penal code (an article actually dating from before the reform), which barred offensive speech against major government agencies, namely his office. The editorial made no reference to any specific person but did mention the "de-legitimization of the Prosecutor's Office (Ministerio Publico) and the courts." (10) Officials and politicians lined up to support the probe against El Universal, including Izarra, who only weeks before had been quoted as saying he opposed such actions and now railed against "media low-lifes [who] devote themselves to defame, vilify and offend the reputation of people and then hide behind the freedom of expression." (11) The investigation, with the threat of fines for El Universal or three-years jail for its editors, spent three months pending before it was finally dismissed by the Supreme Court in October.

Even if their application does not lead to judicial punishment, insult laws can seriously stifle debate when a government uses them to pressure media, as in the case of El Universal. In my conversations with more than a dozen Venezuelan newspaper editors in 2005, nearly all cited the penal code reform - with its potential for financial ruin for the newspaper, the reporter, or both - as one of the main reasons why they shied away from investigating reports of venality in government. Hector Faundez, a media law expert at the Universidad Central in Caracas, has pointed out that the kinds of attacks that Tony Blair faced daily during his campaign for reelection as British prime minister would be illegal in Venezuela. (12) A televised debate between Chávez and his election opponents seems impossible because television stations would be liable for any offensive statements uttered by the challengers about Chávez. The reverse, however, would not be true. Chávez and high officials are free to lob any accusation they choose against opponents, constrained only by ordinary defamation laws.

In addition to creating laws to chill media freedoms, the government has been steadily increasing its use of other backdoor methods to exert pressure. On journalist was charged with violating state secrecy laws by reporting on documents given to her by a source, while an investigative reporter for El Universal has been arrested on what would appear to be trumped-up charges of financial fraud. In addition, a television news channel, Globovision, known for anti-Chávez broadcasts during the 2002 coup but which later moved to recover balance and credibility, has been hit with huge fines from the national telecommunications authority, CONATEL, and the tax service for a variety of supposed infractions since 2002. Given these examples, it is reasonable to conclude that the government has embarked on a systematic campaign of legal harassment against media whose coverage it does not like.

"Social responsibility" Despite the reinvigorated insult laws, the Chávez government's main statement on the media has been its Law of Social Responsibility in Radio and Television, known as the Ley Resorte because of its acronym in Spanish. This complex, 44-page piece of legislation was enacted by Congress in December 2004, and its provisions came into effect gradually over the first half of 2005. Its stated aim is to improve public access to broadcast media, encourage them to reflect the interests and needs of a wider cross-section of the Venezuelan public, and end of showing sex and violence on television when children would be watching.

But the Ley Resorte went well beyond an attempt to rein in risque entertainment; its provisions amounted to a sweeping and unprecedented intervention by the state in the content of broadcast news coverage. The new law's severe sanctions for violators put broadcasters on notice that, henceforth, the government would be watching mass-media content carefully and would use all its legal leverage to influence it.

Under the Ley Resorte, all television stations must include ten hours of Venezuelan-produced programs (as opposed to foreign programs) per day, and five-and-a-half hours of those must be created by "independent national producers." Who are these lucky producers? The law carries a long list of stipulations - they cannot, for example, have any financial or employment relationship with the station where they broadcast - and they must register as independent national producers with the CONATEL. (13) Furthermore, CONATEL's directors are appointed by Chávez, thus giving the government a discretionary power over mass media content that it never had before. These provisions amount "practically to a confiscation of [broadcast] space," wrote two lawyer critics. (14)

The Ley Resorte includes page after page of requirements, ranging from news shows for children and adolescents to limits on tobacco and alcohol advertising, from what kinds of news-archival material can be shown to the hours at which the national anthem must be broadcast. All are spelt out in minute detail. Compliance is monitored by "user committees" (comites de usuarios), private citizens whose job includes alerting authorities when a television or radio station has violated the law. The user committees are not groups of interested citizens who spontaneously gather in someone's living room to watch television. To have any standing under the law, they must register with the government-controlled CONATEL, thus giving the government another avenue to influence news content. (15) A station would be advised not to run afoul of its user committees; if it is fined twice for infringing the Ley Resorte in any way during a three-year period (for example, playing the national anthem at 1 a.m. instead of midnight as required), it could be shut down for seventy-two hours. Two more violations within five years after that would give the government the right to close a station for up to five years. (16)

The Ley Resorte has many supporters among young Venezuelan audio-visual journalists because it gives them unprecedented opportunities to create independent production units and get their work on the air. It has resulted in more and better news shows for children. But the harsh punishments meted out for any violation of the law suggest its intent is less to reform the media than to bend it to the government's will. So far, no media have been forced off the air because of a violation of the law, but the legal tools are evidently in place for the government to start doing so whenever it wishes.

Another arrow in the government's fast-growing quiver of ways to manipulate news coverage is its frequent use of mandatory national broadcasts, or blanket broadcasts. On an almost daily basis, the government requires all stations, public and private, to break into their regular programming and transmit information as ordered by the government. This happens often while private stations are showing prime-time news broadcasts. Sometimes the information has some news value, such as a speech by Chávez, but more often it is simply a commercial for a government initiative or event. (One such superfluous broadcast was of Chávez attending Fidel Castro's birthday party, the two presidents looking like Don Quixote and Sancho Panza as they toasted each other.) Blanket broadcasts became prevalent enough for the Inter-American Commission on Human Rights to mention them in its 2003 report on Venezuela, noting the "abusive and unnecessary use of this mechanism which, if used on a discretionary basis and to serve ends other than the public interest, could constitute a form of censorship." (17)

Cooling the rhetoric. Supporters of the Ley Resorte say that its true aim, like that of the insult laws, is to cool the corrosive rhetoric that contributed significantly to the polarization of society before the 2002 coup and 2004 recall vote. Editors and reporters at news outlets associated with the anti-Chávez opposition, including Globovision, El Universal, and El Nacional, admit they lowered their standards of balance and independence too easily during those years and have worked hard to regain them. By any measure, they have come a long way toward recovering credibility; news stories include all sides, and opposition newspapers regularly carry signed opinion pieces from Chávez supporters and appointees. The incendiary anti-Chávez language was mostly absent from the public sphere by the time the newly restrictive laws come into effect.

The same, however, cannot be said of government media. State-run television channels Venezolana de Television and ViVe remain abject propaganda services for the Chávez government, regularly attacking the president's designated enemies and opposition figures in news reports while excluding dissenting opinions. (18) Pro-government newspapers and state-owned news agency Agencia Bolivariana de Noticias are little better. As Venezuelans look toward the presidential elections, this stark dichotomy in the quality of media news coverage will likely help to define how issues and candidacies are presented to the public. On one hand will be the establishment media, subdued, chastened by their behavior in the 2002-04 period and under constant threat of government legal action. On the other hand will be the sycophantic pro-government media, employing the old language of rancor and derision without fear of legal retribution. This imbalance would seem to give Chávez and his supporters an important advantage entering the election campaign, as they will have many more tools, both rhetorical and legal, at their disposal than will the opposition in reaching the public through the mass media. And given past experience, they are likely to make full use of those tools. This may be a formula for Chávez to win reelection, but it is certainly not a formula for Venezuela to overcome the divisions of the past.

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NOTES

1 The Paris-based media advocacy group Reporters sans Frontieres ranked Venezuela at number ninety in the world on freedom of the press in the group's 2005 survey. This placed it ahead of only Peru (116), Colombia (128), Mexico (135) and Cuba (161 and seventh lowest in the world). It should be noted that the first three of those countries earned low rankings largely because of physical attacks on journalists in the previous year, attacks which, although extremely serious, do not necessarily reflect the legal regime under which the media operate and to which this article refers.

2 Carlos Ayala Corao, "Las leyes de desacato en Venezuela," in Carlos Correa and Andres Canizalez, eds., Venezuela: Situacion del derecho a la libertad de expresion e informacion (Caracas: Espacio Publico, 2005), p.193

3 Cited in Carlos Correa and Yubi Cisneros Mussa, "Las restricciones a la libertad de expresion y la reforma del Codigo Penal," in Correa and Canizalez, op. cit., 185

4 Sala Constitucional del Tribunal Supremo de Justicia, Sentence 1,942, quoted in Ayala Corao, op cit., 203

5 Carlos Correa and Yubi Cisneros Mussa, "Las restricciones a la libertad de expresion y la reforma del Codigo Penal," in Correa and Canizalez, op. Cit., 82. They include a useful, point-by-point synopsis on the modifications to the penal code related to the news media and freedom of expression. Translations are the author's.

6 In late 2004, the Chavista-dominated Congress raised the number of Supreme Court judges from twenty to thirty-two, allowing the executive to name twelve of its loyalists as justices. The executive also filled five vacancies from the original twenty. Thus the government has engineered a majority for itself on the court. These changes followed a ruling in late 2002 acquitting a group of military officers for their involvement in the 2002 coup against Chávez, a decision that angered the president and was also questioned by international human rights groups. Sweeping changes in the judiciary have continued since. In August 2005, the Chávez-appointed president of the Supreme Court, Omar Mora, said the court had exercised its power to remove 270 judges for "corruption" and other alleged crimes and planned to remove some 600 more. Juan Francisco Alfonso, "Mora afirma que 600 jueces saldrán del Poder Judicial," El Universal, 26 August 2005

7 Correa and Cisneros Mussa, op. cit., 182-83

8 John Dinges, "Soul Search," Columbia Journalism Review , July/August 2005, in which Izarra also said he would support a Venezuelan version of the U.S. Freedom of Information Act.

9 Teodoro Petkoff, interview with author, 29 April, 2005

10 "Justicia arrodillada," El Universal, 25 July 2005

11 "Izarra respalda accion contra el diario," El Universal, 29 July, 2005. "La canalla mediática se dedica a difamar, vilipendiar y ofender la reputacion de las personas y despues se esconde en la libertad de expresion."

12 Hector Faundez, interview with author, Caracas, 28 August 2005

13 Republica Bolivariana de Venezuela, Comision Nacional de Telecomunicaciones, Ley de Responsabilidad Social en Radio y Television (Caracas: CONATEL, 2005), p.18-20

14 Margarita Escudero Leon and Ana Cristina Nunez Machado, "Comentarios criticos sobre la Ley de Responsabilidad Social en Radio y Television" in Correa and Canizalez, op cit., p.231

15 Ley de Responsabilidad Social, op. cit., p.17

16 Ibid., p.39

17 Organization of American States, Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Venezuela (Washington: IACHR, 2003), p.177

18 The government's other major broadcaster is Telesur, a cable station that began transmissions throughout Latin America in July 2005 and is owned 51 percent by the Venezuelan government. Argentina, Cuba and Uruguay own the remaining 20, 19 and 10 percent, respectively. It shows mostly documentary film but also has news and is much less political than Venezuelan state television.

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Roger Atwood was a Knight International Press Fellow in Venezuela in 2005. He is author of Stealing History and a Visiting Researcher at Georgetown University's Center for Latin American Studies.



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