The broadcasting dispute in Costa Rica: between the Gag Law (Ley Mordaza) and the biased debate in the media
“The political error of the Solis Administration has been to replicate these same regulations in a draft bill, prompting complaints that may be legitimate in appearance, but which conceal a campaign to discredit the debate about a new law regulating radio and television services in the country.”
Giselle Boza */ Costa Rica, June 2015
A draft bill prepared by the Ministry of Science, Technology and Telecommunications (MICITT) to regulate radio and television broadcasting services in Costa Rica, has in recent weeks led to a rift in the Executive Branch: the fall of two ministers and a deputy minister, the integration of a Presidential Commission to advise the president on issues of freedom of expression, and the appointment of a Minister of Communications.
The issue has not been minor: the most important media outlets in the country warned of an attempt by President Solis to promote a gag law, by including in the draft text a series of articles that could be used to sanction the publication of content.
However, the media hype failed to point out that such rules already exist in the Costa Rican legal system, found in the same Law on Radio and Television, and which have regulated commercial operators for the last sixty years. The political error of the Solis Administration has been to replicate these same regulations in a draft bill, prompting complaints that may be legitimate in appearance, but which conceal a campaign to discredit the debate about a new law regulating radio and television services in the country.
The comfortable relationship of commercial operators with this law, which dates from 1954, also explains why for many years media outlets did not question the effective gagging restraints.
The Radio Law allows for the automatic extension of concessions, the transfer of these same (at exorbitant fees) and just a single notification to the Executive; and minimal taxes calculated on the basis of the 1950s economy. Moreover, it does not recognize a diversity of operators but is rather an instrument at the service of commercial broadcasting, and neither does it provide for affirmative policies to encourage national and independent audiovisual production.
This outdated regulatory framework, which has led to the concentration of frequencies among particular economic groups and prohibited any form of social broadcasting, and which lacks any guarantees for diversity and plurality of content, and which also contains regulations, such as those now being questioned, which penalize the publishing of certain content, is the only legal reference to guide the migration to digital television that the country is presently undergoing. This situation is of concern to both academics and certain social sectors, where the opinion is held that digitalization will deepen present inequalities given the absence of public policies.
The exaggerated journalistic reaction to the so-called gagging law and the reactions of certain sectors of the opposition to the Government resulted in the resignation of the Minister of Science, Technology and Telecommunications, Gisela Kooper, as well as the Deputy Minister of the same portfolio, Allan Ruiz. The same media pressure also led to the replacement of Minister of the Presidency, Melvin Jimenez.
Within the context of this discussion, the country’s need to move towards a legal framework that meets the highest standards of freedom of expression in terms of diversity, pluralism and non-discrimination has been completely absent.
The concern of academic sectors, particularly the Program for Freedom of Expression, Freedom of Information and Public Opinion at the University of Costa Rica (PROLEDI), is that the campaign organized by the biggest media companies together with the support of the Inter-American Press Association (IAPA), has led to the Government backtracking in the discussion on a new Radio and Television Act.
Furthermore, along with the signing of the Declaration of Chapultepec by President Solis, and the commitment to repeal the existing clauses of the Radio Law, which although inapplicable still pose a threat to freedom of information, it was noted in the meetings between IAPA and local sectors that an attempt was being made to undermine those who are proposing a change in the broadcasting model in Costa Rica.
The debate in Costa Rica regarding a new law regulating radio and television broadcasting has originated not only because of a mandate issued by the Comptroller General of the Republic in Report DFOE-IFR-IF-05-2013, which obliges the Executive to propose a draft law, but in particular due to the pressure of academics and social sectors. The latter have for various years been pointing out that Costa Rica has an outdated regulatory framework, that said framework does not conform to the social, cultural and technological changes that have taken place in recent decades, and that it limits the broad exercise of citizens’ rights to communications and information.
Prior to the present conflict, radio operators grouped together in the National Chamber of Radio, defended the need to maintain the present law. Andrés Quintana, honorary president of the private organization, stating that “…I see no need to change the law of 1954 and have proposed new technical regulations to the MICITT in order to mitigate the situation.”
While there are varying opinions among the same commercial operators about the need to update the legal framework for broadcasting, those in favor are still not willing to compromise on a change of model. The proposal of some social and academic sectors to create opportunities for civic and community initiatives, and for the strengthening of public media, has been widely criticized by these same commercial sectors, who believe that an attempt is being made to import models from countries with a high level of State intervention in the media sector.
The same draft text issued by the government was not only criticized for incorporating such standards for the control of media content, as well as for copying verbatim certain articles pertaining to the laws of other countries, but also (underlining that at the heart of this issue was a critique of any change to the prevailing model), it was criticized for incorporating issues such as reservation of (parts of) the spectrum for social objectives, recognition of community media, limits on foreign capital and affirmative policies for domestic production, among others.
Academic circles acknowledged that for the first time the government had submitted to debate a series of proposals to advance towards a change in the radio and television broadcasting service, but also presented a set of objections to the executive’s draft text. For example, the proposal of MICITT not to establish clear, precise and enforceable obligations of the State to ensure diversity and pluralism in the broadcasting service system, an essential area for the development of public policy regarding this matter. The draft text focuses on the role of the State to promote the development of services in rural areas, of social interest or in border zones, but it does not establish the duty to ensure diversity and pluralism in broadcasting services in all areas of coverage, or recognition of the diversity of operators, or the prevention of the concentration of frequencies among just a few operators.
Since December 2014, academic representation in the consultation workshops convened by MICITT warned that although the text welcomed -in its general objectives- the obligation to ensure that public and private operators enjoyed freedom of speech, editorial freedom, independence and the prohibition of censorship, the sanctions for the transmission of various contents, with regard to undetermined legal concepts, such as false news, language considered vulgar or contrary to morality, and abusive language, were deemed inopportune.
However, the administration of President Solis did not foresee the reactions of the media with regard to the proposed open and transparent debate, representing an issue that had been put on hold by successive governments over many years.
Consequently, the public discussion on a new Radio and Television Law in Costa Rica seems to have gone into reverse. While social and academic sectors have been promoting the need for a bill of popular initiative, President Solis and his government have lowered the tone of the debate, particularly by signing before representatives of the Inter-American Press Association (IAPA), the Declaration of Chapultepec, while also announcing legislation to repeal the disputed regulations.
The Freedom of Expression Program of the University of Costa Rica criticized the government’s decision to implement partial repeals to the Radio Law of 1954, which although considered to be urgently needed, also postpones the wider debate on issues of equal urgency and necessity about a law which, on the whole, limits the country’s citizens to fully exercise their freedom of expression.
* Lawyer and journalist. Program Coordinator for Freedom of Expression, Freedom of Information and Public Opinion (PROLEDI) of the University of Costa Rica. Professor of Communications Rights at the School of Collective Communication Sciences and researcher at the Communication Research Center (CICOM) and the Centre for Research in Political Studies (CIEP) of the same university.