Proposed anti-discrimination law could affect freedom of speech
A man walks by a poster that reads “30 years, Media Broadcast Law is more democracy” in 2013.
By Sebastián Lacunza
Editor-in-Chief
Editor-in-Chief
The debate concerning the relationship between media and governments in Latin America has persistently collided with an error frequently repeated by the sectors that are apparently at odds. On the one hand the Clarín Group, the largest Argentine media conglomerate, just like opposition leaders, have squandered headlines over the years to denounce the 2009 Broadcast Media Law as inspired by the late Hugo Chávez of Venezuela. That cliché is not exclusive to these latitudes.
Throughout the continent, sectors averse to the populist and/or centre-left ruling parties have tirelessly raised the Venezuelan spectre, which they identify as the worst of all evils.
On the other side of the divide, many Kirchnerites and their allies have not hesitated to embrace Hugo Chávez and Nicolás Maduro’s case against private media — which the Venezuelan presidents have identified as “coupmongers.” Indeed the media magnates of Caracas were star players in the abortive coup d’état that toppled Chávez for a few hours in April 2002, a precedent that unleashed a series of public policies at odds with pluralism and freedom of expression. According to this logic, if President Cristina Fernández de Kirchner clashed with the Clarín Group, that could be equated to the conflicts between Brazil’s Workers’ Party with the Globo Group, the Chávez regime with Gustavo Cisneros and RCTV, Ecuador’s Rafael Correa with El Universo and the “fugitive bankers,” and to Bolivia’s Evo Morales with the multimedia based in Santa Cruz de la Sierra.
It is not the purpose of this column to spell out similarities of these Latin American processes — which doubtless exist — nor their differences, also evident as soon as one starts paying close attention to the history, the power politics and the legislation of each country. But it is worth mentioning a crucial aspect that demolishes both the strident denunciations and the epic proclamations that gloss over the details. While the legislative changes in Venezuela, Ecuador and Bolivia differed on regulating content, in the cases of Argentina and Uruguay the respective media laws tackled aspects such as market concentration but stopped short of approving sanctions for opinions and information.
The countries on both sides of the River Plate are recognized for having open legislation guaranteeing the freedom of expression, as the expert opinions of both the Organization of American States (OAS) and the United Nations attest to that. When defining criteria, it would be more accurate to say that the 2009 Media Law (consigned to oblivion in government offices and the courthouses) resembles a Scandinavian norm far more than anything coming from Chávez. (The implementation of the law, public media, state advertising and access to information are another story with a lot of Peronism and precious little of any Scandinavian social democracy).
One form of regulating content was explored in Bolivia, a country where broad sectors of the population are victims of malicious discrimination that is also expressed by the media. The main target of insults is the indigenous community, a majority to which President Evo Morales belongs. As a candidate he was shamelessly insulted by newspapers and television channels while seeking the presidency. With that background, the Bolivian government enacted a law in 2010 “against racism and all forms of discrimination,” which raised the punishment when a crime had discriminatory motives.
The initiative was tenaciously resisted by the traditional media, which even published joint editions headlined “without democracy there is no freedom of expression.” In this respect, the Bolivian law provides for economic sanctions, the suspension of licences and the loss of legal immunities if the media publishes discriminatory insults either in its own articles or as part of the comments by its readers.
At the close of the third Kirchnerite presidential term, the always eager lawmaker Diana Conti has come out as the main sponsor of a bill expanding the legal avenues against discrimination. The text, couched in a language full of good intentions, leaves the door open to the possibility of preventive action against attacks. In short, from there to prior censorship is only a small step although Conti does not advance to the extreme sanctions provided under Bolivian legislation.
Anybody who uses Twitter, Facebook and reads online message boards knows full well that they are exposing themselves to a veritable latrine. Insults, threats and the most varied forms of discrimination lurk in these caves of hatred to which many media give free rein with the supposed aim of generating more traffic to their websites or, to put it more cynically, to foment informative democracy. As we well know, we live in times when certain opinion pieces are no more than mere invitations to a to-and-fro festival of insults where at times it is hard to distinguish qualitatively between the columnist’s arguments and the anonymous commentators discharging their wrath at a slightly lower level.
There are thus reasons to establish policies to avoid those toxic mechanisms which have nothing to do with the free flow of opinions promised, and at times enshrined, by the Internet. Nevertheless, the problem with initiatives like Conti’s and (mutatis mutandis) Evo Morales’ is, on the one hand, the difficulty in differentiating with surgical precision between insults, criticism and irony, and on the other hand, who is the person best suited to decide on that difference.
Eduardo Bertoni, the former OAS special rapporteur for freedom of expression, hit the nail on the head in a column written this week on the Infobae website: “For at least 30 years, the Inter-American Court for Human Rights has established that laws setting limits on the freedom of expression must be drafted in the clearest and most precise way, given that vague and far-reaching norms could have a dissuasive effect on opinions for fear of sanctions. The main problem is that vague definitions can lead to court interpretations restricting the freedom of expression and granting discretionary powers to the authorities in a manner inadmissible to the Inter-American Convention on Human Rights.”
A government initiative has thus come to muddy a pitch in which Kirchnerism has something to show for itself. It wouldn’t be the first time. Another case in point was how an officer accused of crimes against humanity was stubbornly kept at the helm of the Army for two years, thus enabling even sectors linked to seeking impunity for repressors to point fingers at a government that has done the most to promote the process of memory, truth and justice. As if all that talk about not abandoning your convictions at the door of the Government House were a matter for debate.
@sebalacunza