“Keeping in mind how complex it is to build equilibria and guarantees in this area, the law represents a clear step forward for Uruguay and the region as a whole.”
Staff, July 2015
During an academic visit to Uruguay at the invitation of the Chamber of Deputies, OBSERVACOM conducted an exclusive interview with the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR), Dr. Edison Lanza, who discussed the Audiovisual Communication Services Law and highlighted the following aspects:
- The regulations on content for protecting children are legitimate, reasonable, and proportionate. He said that they are specific, pertain to a limited schedule, and are clearly written. He added that they also protect political discussion or news of general interest.
- There are limits on the concentration of ownership or control of the audiovisual media that meet the standards set out by the Inter-American Human Rights System.
- The law establishes reasonable limits on the accumulation of licenses and/or frequencies, preserves historical radio broadcasting companies and those that access the spectrum, and ensures that telecommunications companies cannot profit from radio broadcasting.
- He highlights the creation of a supervisory agency with basic guarantees of independence from the government and economic influence and the creation of a public office that is responsible for holding hearings that does not have punitive powers.
- He notes that the system of sanctions seems to be very broad and that there is a need to be more precise about the proportionality of the sanction in relation to the seriousness of the behavior so that there is no risk of the judge being arbitrary.
- He notes that the development of the law was based on broad participation and discussion.
– What is the Office of the Rapporteur’s assessment of Uruguay’s Audiovisual Communication Services Law?
– The most recent IACHR and Special Rapporteur’s Office annual report states that Uruguay’s law is a step forward in terms of respect for freedom of expression and regulation of diverse aspects of the audiovisual media. The Rapporteur’s Office had already praised the process of creating the law because of the broad participation and discussion involved. But in general, one must recognize the guarantees set out in the law for the exercise of freedom of expression through these types of media, the development of clear and transparent mechanisms for accessing licenses and frequencies, the search for equality and non-discrimination in the participation of the media system, and balanced mechanisms for limiting the formation of monopolies and oligopolies. It is also important to note the creation of a supervisory agency with basic guarantees of independence from the government and economic influence and the creation of a public office that is responsible for holding hearings which does not have punitive powers. Keeping in mind how complex it is to establish equilibria and guarantees in this area, the law is a clear step forward for Uruguay and the region as a whole.
-The section regarding protection of the rights of children and adolescents has been very controversial in Uruguay. Some media outlets have warned about intervention in contents. What do you think about this situation?
– The Office of the Rapporteur conducts a legal technical analysis in order to establish whether a legal standard is in line with the American Convention. In this case, it is a matter of limiting a series of contents in order to protect young people and prevent the damage that those contents may cause to children and adolescents. I have to be tedious and rigorous in my response to this question.
The general principle is that freedom of expression cannot have prior censorship and that any limitation must be looked at in light of a very strict test set out in the Convention. As has been stated many times, freedom of expression is not an absolute right. Article 13 of the American Convention establishes the conditions that any limitation must meet in order to be legitimate (paragraphs 2, 4 and 5). Article 13.2 states that the exercise of freedom of expression cannot be subject to prior censorship, but that it can be subject to ulterior responsibilities. These must necessarily be a) set out by law and b) be necessary in order to achieve the following objectives: ensure respect for the rights or reputation of others, protection of national security or public order or public health or morals, and necessity and proportionality for evaluating any restriction. The restriction must be absolutely necessary for a democratic society and for the achievement of these necessary objectives it must be strictly proportional to the end sought.
In this regard, I believe that the standards set out by the law for the protection of children and adolescents are meant to meet a legitimate objective that is allowed under the Convention in addition to including the obligations set out in the Convention on the Rights of the Child, an international treaty that has been ratified by Uruguay. The restrictions are specific, address a specific time frame, and are clearly written. In addition, they establish a safeguard for discourses that are especially protected under the Convention, such as political debate or news of public interest which are not included in the restriction regarding debate, and images could even be used in specific cases. All of this must be interpreted within the broader context of the guarantees established by the law and by international standards that are mandatory as per Article 2 of the standard. I believe that in this sense the specific restrictions that the law sets out meet international standards.
Finally, there is a need to analyze the system of sanctions that is applied if the legal mandate is not followed. I believe that there is room for improvement there. The sanction system seems very broad to me, and there is a need to be more precise about the proportionality of the sanction in relation to the seriousness of the behavior so that there is no risk of the judge being arbitrary and so that disproportionate sanctions that could place the continuity of a media outlet at risk are not applied.
– How does Uruguay’s Audiovisual Communication Services Law address the standards for preventing and limiting the formation of monopolies and oligopolies in the media as a serious threat to freedom of expression as defined by Article 12 of the Office of the Rapporteur and IACHR’s Declaration on Freedom of Expression?
-This issue is a fundamental one not only for freedom of expression, but for the health of the democratic system. I argue that the Uruguayan law meets the standards set by the Inter-American Human Rights System in the section on limits on concentration of ownership or control of audiovisual media. The report of the Office of the Rapporteur for Freedom of Expression for inclusive and free radio broadcasting established the need for governments to ensure balance between three sectors of the media that require licenses to operate (commercial, public, and community). It also recommends that independent regulatory agencies be established to enforce this type of law, and that is fundamental. Finally, governments are required to avoid monopolies or oligopolies in any sector (public or commercial) and to promote diversity and pluralism.
In that sense, the Uruguayan law addresses these problems very well. It sets reasonable limits for the accumulation of licenses and/or frequencies, preserves historical radio broadcasting companies and those that access the spectrum, ensures that telecommunications companies cannot profit from radio, and creates an enforcement agency with guarantees of independence from the Executive Branch and from economic groups. Another fundamental issue is that the Audiovisual Communications Services Law limits the danger of state oligopolies (which we currently see in Cuba or Venezuela) by reducing public ownership of the media to the minimum required for public media at the service of the people and clearly includes the social-community sector of communications.