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“We (the people of Latin America) owed it to ourselves to engage in a discussion about the function of the media in the democratic system,” Edison Lanza

«In October, the Inter-American Commission on Human Rights (IACHR) will appoint a new Special Rapporteur on Freedom of Expression.»

Sonia Santoro* / Regional, September 2014

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In October, the Inter-American Commission on Human Rights (IACHR) will appoint a new Special Rapporteur on Freedom of Expression. After a long process that began last December and involved a review of 49 applications, Uruguayan journalist and attorney Edison Lanza was chosen for the post. His work will include building principles and standards “to help reverse processes of concentration without affecting the viability of the media” and protecting journalists in situations of risk and investigating crimes against them. His commitment to developing the connection between the right to freedom of expression and the promotion of the rights of groups “that suffer or have suffered discrimination (children, women, indigenous groups, the LGBTI population, the disabled, etc.)” is worthy of note.

Lanza will be appointed to a three-year term that may be renewed once. He will take office on October 6, replacing Colombia’s Catalina Botero.

He recently answered some of our questions about the challenges that lay ahead.

-You will take your post as the new rapporteur on October 6. What expectations do you have of this new role?

-I believe that this is a key position for the promotion and protection of the right to freedom of expression and the right to information in the region. Thanks to the work of various rapporteurs, the Office has become an institution of reference in the field of these freedoms, human rights and communications. As I stated during the meeting that I had with the commissioners, I am not coming here to work against anyone, but rather to collaborate with all of the stakeholders in the democratic system that have an impact on these issues, including –of course and fundamentally- the governments. I believe that the Office can help direct the discussions that are taking place in the region around freedom of expression and the democratization of communication. In my opinion, our countries are mature enough to openly discussion freedom of expression, and it would not make sense for us to close ourselves off from reflecting on democracy, pluralism and freedom of expression even when we have very diverse points of view and interests.

-What will be your priority areas?

-I am going to try to synthesize some areas. The promotion of diversity and pluralism in communication in all directions is one core area. I intend to promote regulations that limit the formation of oligopolies and monopolies and the concentration of the media that affect opportunities to disseminate information and opinions or pluralism. And I am talking about concentration in both the private and government or public sectors. There are key definitions in the Inter-American System regarding the negative consequences of monopolies and oligopolies, but there is a need to expand upon these existing standards. There is a need to build principles and standards to help reverse processes of concentration without compromising the viability of the media. Of course, the structural problems that continue unabated in many regions continue to be a priority. Promoting an integral strategy in contexts of aggression and attacks on the physical integrity of those who work in communications based on the prevention of the violation of their rights is a key area. We must protect journalists whose lives are at risk and conduct transparent investigations of assassinations and other aggressions. The effective implementation of mechanisms for protecting communications professionals who have been threatened forms part of the positive obligations of the government.

But from a more comprehensive perspective, having bodyguards and bullet-proof cars may be simple, but it is a costly solution for governments and is not practical for journalists in the field. One must consider the phenomenon from a comprehensive perspective and seek out ways to promote freedom of expression and engage in prevention, protection and sanctions of violations. If we do not make progress in the fight against impunity in crimes against the freedom of expression through efforts to prevent the commission of said crimes, the remaining measures will always be insufficient. I also propose developing the link between the full realization of the right to freedom of expression and the protection and promotion of the rights of various groups that suffer or have suffered discrimination (children, women, indigenous groups, the LGBTI population, disabled persons, etc.). This goes hand in hand with encouraging governments to take positive steps to reverse or change discriminatory situations so that these groups can fully exercise their freedom of expression and enjoy protection of their rights in the face of openly discriminatory expressions. The protection and existence of freedom of expression in the online world is a precondition that concerns and benefits all people. Among those priorities, it is important to protect and promote universal access to this fabulous space for education, information, personal expression and entertainment. Finally, I believe that one must continue to insist on access to public information and mechanisms for preventing indirect censorship.

-What are the main problems in the Americas related to freedom of expression? Which are specific to the Southern Cone?

-I believe that the problems and challenges regarding freedom of expression in the region can be grouped into two areas: structural problems that continue in some subregions and an emerging agenda. The structural problems include violence and aggression against journalists and human rights activists (in some Central and South American nations); the use of criminal law to criminalize expression or the use of criminal law of exception to silence protest and criticism; scant diversity in the media and the lack of pluralism in the voices represented in the media system, especially in certain countries; the weakness of the public media and lack of recognition of community media; and the battle against the culture of secret that persists in every country in the region. Important progress has been made such as the adoption of laws, installment of oversight agencies, and local caselaw, but there is a concern that some governments extend secret for reasons of national security and the prosecution of informants, which is the other face of this progress.

We then have the emerging agenda, which merits attention. This includes the many discussions on freedom of expression and the Internet. In 2013, the Office of the Special Rapporteur’s annual report included a study on the Internet and freedom of expression that contains standards for the evaluation and analysis of specific situations. The main challenges thus involves positioning the Internet as a space of protection and promotion of and respect for human rights, and as a space in which one can denounce the violation of those rights.

We must reflect more at the regional level, because there are common issues for the subregion. This week, the Inter-American Court issued a sentence in the case of Mapuche leaders who were charged with terrorism in which it rules on the criminal figures with fuzzy and vague borders that affect social protest and freedom of expression and are thus incompatible with the Convention. I fear that it is a good point that all of the Mercosur countries must consider. Progress has been made on the regulation of the audiovisual media in the subregion. Each country has its own rhythm and models, but I believe that this is a good time to see the results of the application of each of these models.

The countries have progressively joined the concert of nations with public information access laws that respect human rights standards. We hope that Argentina and Paraguay quickly join in. In any case, I believe that our countries have a pending agenda in the area of preventing indirect censorship, the arbitrary allocation of government resources to the media system and the completion of audiovisual media system reform in accordance with the standards built by the Inter-American system. There are also specific situations with the exercise of the right to freedom of expression in electoral contexts. In short, there is no shortage of issues.

-Does media concentration continue to be a significant obstacle to freedom of expression in the region? What is your opinion of the new laws that seek to regulate the media system?

-Latin America is engaged in an unprecedented discussion on the role of the State in the regulation of the audiovisual media and the role of the media in the democratic system. I personally believe that this discussion is a valid one if it takes place in a context of effective respect for and promotion of the right to freedom of expression and is not used as an excuse to control the media. It is a discussion that we owed ourselves as Latin Americans because we inherited longstanding problems related to media system. Authors from the region including Argentine experts who made valuable contributions explain that there was a lack of regulatory presence of the State for decades which allowed communications to fall almost exclusively into the hands of the commercial sector. In many cases, there were very high levels of concentration of ownership and control, which is atypical of strong democracies.

The region also shows a certain degree of underdevelopment in the work of building public independent media outlets, and we know that these were relegated to a Cinderella role for many years, though several governments have begun to improve funding for them. On the other hand, we have a community/social sector that was excluded for decades, or only sort of recognized, in a discriminatory manner and without promotion policies. This combination produced audiovisual production that is very much concentrated in the capitals of nations, in low-quality formats. In some cases, such as that of Uruguay, we mainly consumed foreign production for many years. Concentration of the media is an ingredient in this recipe that cannot be ignored because once we have a concentrated media system, negative consequences are generated in the public space along with complex relationships between the media and the political system which are also not very transparent.

Given this situation, governments have developed a wide range of strategies, particularly over the past ten years. The communication services laws are arriving at a time at which the industry is already developed, and as such they produce tension and reactions. Of course, one must take a careful look at these laws, because they should have the goal of promoting transparency in the assignment of frequencies, diversity and pluralism without limiting enjoyment of freedom of expression. One must also consider what has happened in countries that have gradually strengthened the community sector, seeking to effect an organized transition towards a more plural system in digital TV, as occurred in Uruguay. Brazil, in contrast, started out by trying to create quality national public TV and improving regulation of the TV system for subscribers, but it has not changed the commercial media system structure. All of these experiences are valid, as long as pluralism does not generate unnecessary restrictions on freedom of expression in the name of diversity, which is addressed by the American Convention in Article 29. This may be a good time to analyze the various experiences and how these regulations have been implemented because one thing is the text and the intention of the legislator, and quite another the application.

-What challenges to freedom of expression do attempts to regulate the Internet and new technologies pose?

-Enormous challenges. The Internet has allowed for mass access to culture, entertainment and the circulation of information. It also has allowed for unprecedented exercise of freedom of expression both individually and collectively. This has been possible through the special characteristics of this new public space, through its creation of network, which sets it apart from all other media that have been invented to date. As such, each regulation that government seek to establish has implications for freedom of expression and other human rights.

I believe in multi-stakeholder governance of this space. (Author’s note: He refers to the participation or consideration of the approaches of all of the stakeholders that have a role in a system.) The Office of the Special Rapporteur must have a role in this from its unique position. I will not go too far into this, but today there are regulatory frameworks on the table that imply talking about management of Internet content, intermediary responsibilities, information filtering, control of the Internet in the context of social and/or political protests… In short, it is a topic that one could explore forever. I would like to note that the region is addressing this issue with national laws such as Brazil’s Civil Framework or Chile’s regulatory framework, but there is also uncontrolled use of criminal law to try to combat abuses online.

-The 2013 report of the Office of the Special Rapporteur on Freedom of Expression included a specific point on the violence that female journalists have experienced in the exercise of their freedom of expression, especially in the case of Mexico. Will you continue to conduct work on the violence suffered by female journalists?

-The Inter-American Commission has stated that the contexts of violence in Latin America include a component of exacerbation against women, particularly in the context of gender-based discrimination, which persists in many countries. It would be unfair of me to fail to state that the current Rapporteur has incorporated the gender perspective into her reports on violence against journalists, and I am committed to maintaining that line of work in the reports and in possible cases that the Commission decides to admit and eventually to present before the Inter-American Court.

-When media outlets publish sexist content and are criticized for it, they use the right to freedom of expression as a justification. How do you think that one should work through the various stakeholders –civil society, the government, journalists, companies- to deconstruct these arguments and effect change?

-It is true that in many cases the media in the region have a history of poor practice in relation to discrimination against women and other groups. How can one encourage changes in this practice without interfering with freedom of expression? This is a question that we all ask ourselves, and I believe that there are many experiences that can help us to resolve this dilemma. In the first place, one must highlight the work of the women’s organizations that decided to use the route of training and promotion of and towards communicators as a form of incidence. They have made progress gradually. Next, there are observatories and critical reports on the way in which journalism and marketing are done that I believe play a role. The same is true of the universities, which must engage in in-depth work on the ethical aspects of communication. Finally, TV itself must promote equality from the space of fiction. The best way to combat the discriminatory discourse is with strong arguments and evidence.

I am also following institutional experiences such as the Ombudsman’s Office in Argentina with a great deal of interest. The key tools used by the entity include public hearings and mediation, and this seems to be starting to bear fruit without necessarily involving the punishment of the media. I know that the feminist movement asks whether it is important to penalize discriminatory expressions, and the Office of the Special Rapporteur must open up a discussion regarding the limits of discourse that is protected by freedom of expression and forms of expression that constitute hate speech, which falls under 13.5 (inciting violence against groups of people for discriminatory motives).

*Interview originally published in Página 12.

... (en este espacio hay varias líneas de código de programación personalizado)