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Peña Nieto’s Draft Law on Telecommunications Violates the Constitution

Versión en español| Versão em Português

April, 2014

Counter-reform is the most common description of the package of secondary legislation initiatives on telecommunications and broadcasting presented, after a four-month delay, by President Enrique Peña Nieto to the Mexican Congress on 24th March last.  Modifications to eight legal bodies were delivered with the law.[1]

The law’s contents aroused intense debate concerning basic aspects that contravene several articles of the Constitutional Reform on the matter (from now on “the Reform”) approved on June 2013, as well as international standards on freedom of expression and the right to information. For even when it is focused on economic aspects, it does not regulate properly media concentration on broadcasting and restricted television; it sets too many powers to institutions of the Executive Power to control the media system, and which minimize the faculties and scope of the autonomous regulating body (the Federal Telecommunications Institute, IFT); it is exiguous at ensuring pluralism, rights of audience in broadcasting, users rights in telecommunications, universal access to broadband, and it also infringes the rights to privacy in ways that could lead to serious human rights violations.

The Rights and Principles Violated

1. The law affects freedom of expression and the right to information in the Internet by allowing censorship by the Government and the concessionaires; it sets limitations to net neutrality; it makes it possible for authorities to order the blocking of telecommunications services in specific areas qualified with assumptions as vague as being “public security hot spots”. It violates privacy by expanding communication intervention and real-time geolocation faculties without control (Articles 192-194), besides making telephone companies keep personal data provided by users in a record of communications, even in an undefined manner, and to guarantee access to it without judicial authorization or additional safeguards not only to judicial authorities, but to instances like the Center for Research and National Security, which is in charge of political intelligence.

Those dispositions could contravene the prohibition of prior censorship established by the 7th Constitutional Article and become illegitimate limitations to the 13th Article of the American Convention on Human Rights (ACHR) as disproportionate and unnecessary restrictive measures in relation to its goals. The Joint Declaration on Freedom of Expression and the Internet by the Rapporteurs on Freedom of Expression goes in the same direction, for its states that: “Interrupting Internet access, or part of it, in whole populations or certain segments of users (termination of Internet access) is not justified in any event, not even for reasons regarding public order or national security”.

On the matter of monitoring telephone calls, the Mexican Supreme Court of Justice and the Inter-American Court on Human Rights have determined that any communication data must be protected by the right to inviolability of private communications. For that reason, interception, storage, processing and access to these data needs judicial authorization and control as established by the International Principles on Human Rights and Communication Monitoring.

2. It infringes the autonomy and faculties of the IFT, confining it to the technical regulatory field and forcing it to coordinate its actions with several institutions that are under command of the Executive Power, specially the Secretary of Communication and Transportation. In addition, it is very sensitive to exclude the constitutional faculty on content regulation from the IFT in order to let the Ministry of Interior be in charge of supervising audiovisual contents. This dilutes the great progress achieved with the regulatory body’s autonomy, an innovative model in Latin America and in compliance with the highest international standard of the Inter-American System, which states: “[…] In particular, it is of the utmost importance that media regulating or auditing bodies remain independent from the Executive Power, that they act according to due process, and that they have strict judicial control”.[2]

3. It sets discriminatory criteria to social, community, and indigenous media preventing them to access a diversity of financing options, including the possibility of having commercial spaces and state support. This leaves them in a legal uncertainty with highly discretionary and unequal criteria regarding the access to frequencies. One of the most extreme examples of this is the obligation of getting a favorable opinion from the National Commission of Foreign Investment. Besides that, these media must comply with the same requirements asked to public media, as if they had the same conditions and capabilities. Equal treatment among unequal parties violates the legal principle of equality before the law. The dispositions are against the Inter-American System minimum standards both in the access to frequencies[3] as in their development conditions, as established by the Joint Declaration on Diversity in Broadcasting.[4] “Community broadcasting should be explicitly recognized in law as a distinct form of broadcasting, should benefit from fair and simple licensing procedures, should not have to meet stringent technological or other license criteria, should benefit from concessionary license fees and should have access to advertising”.

4. The new national public-service broadcasting institution is left under control of the Ministry of Interior, in opposition to the Constitution, which granted it management and operational autonomy. The law’s confusing writing does not make it clear if this system will only operate new national TV and radio channels, or if it will have control over the existing public broadcasting systems all over the country. In addition, it ignores the mandate to ensure editorial independence and it sets limitations to their funding sources, forcing them to depend on government budgets. The regulation imposed on this sector goes in opposite direction to everything established by the Joint Declaration on Diversity in Broadcasting regarding special measures guaranteed to strengthen it.[5]

5. The limitations to media concentration, cross ownership, asymmetric regulation, disinvestment for breaking up monopolies, criteria on preponderance and substantial market power, specially in broadcasting, do not restrict the current television companies’ control on the market; in the contrary, they affirm conditions that encourage their dominant position, contrasting with measures on telecommunications, which are specific and clear. The decision to declare only one preponderant player per sector calls to attention, because it avoids the possibility of Televisa being declared as dominant player in restricted television, even when it controls approximately 70% of satellite and more than 60% of cable, segment which represents its greatest growth. This disposition opposes the Reform, since it stated the application of preponderance on every segment.

6. It lacks an effective regulation for child protection, misleading advertisement, growth and strengthen of independent production, and rights of audience and users in general, restraining their actual implementation. On the matter, we must point out that the package of initiatives sent by the President did not include the reglamentary law on the right of reply, a basic right of freedom of expression recognized by the Constitution and by the ACHR in its 14th Article.

The governing party, with the votes of its senators and the ones from the Ecologist Green Party of Mexico, known as the “telebancada” due to its strong bond with commercial television companies, has almost the simple majority needed to sanction the law. The few votes they are missing (only seven) can come easily from any of the opposition parties, which are now dealing with internal struggles concerning the elections of their directives.

Nevertheless, before the pile of constitutional violations, if the law is approved in its terms, the story of an action of unconstitutionality, like that of 2006 against the so-called Televisa Law, may repeat itself.

Aleida Calleja. Specialist on media and regulatory frameworks, former President at the Mexican Association for the Right to Information, and Advocacy Coordinator at OBSERVACOM.

Related links:

Peña Nieto inicia una contrarreforma a la ley de telecomunicaciones

Iniciativa de ley secundaria sepulta posibilidad de tv pública: expertos

Ley en telecom pone candado a Internet

Ley Peña-Televisa, alta traición

“Grave retroceso legal la iniciativa de Telecom de Peña”

 


 


[1] Foreign Investment Law, Federal Law on Copyright, Federal Law of Administrative Responsabilities of Public Servants, Law of Protection, Law of the Statistical and Geographic Information System, Federal Criminal Code, Federal Law for Transparency and Access to Public Government Information, Federal Law of Parastatal Entities.
[2] IACHR, Annual Report 2008, Volume II: Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter IV, par. 82.
[3] IACHR, Declaration of Principles on Freedom of Expression, October 2000, Principle 12: “The concession of radio and television broadcast frequencies should take into account democratic criteria that provide equal opportunity of access for all individuals”.
[4] Rapporteurs on Freedom of Expression of the UN, the OSCE, the OAS and the ACHPR, Joint Declaration on the Diversity of Broadcasting, 12 December 2007.
[5] “Special measures are needed to protect and preserve public service broadcasting in the new broadcasting environment. The mandate of public service broadcasters should be clearly set out in law and include, among other things, contributing to diversity, which should go beyond offering different types of programming and include giving voice to, and serving the information needs and interests of, all sectors of society. Innovative funding mechanisms for public service broadcasting should be explored which are sufficient to enable it to deliver its public service mandate, which are guaranteed in advance on a multi-year basis, and which are indexed against inflation”.