Communication Law and Policy in South America

South America comprises 13 countries with a vast array of cultural backgrounds. Its cultural diversity stems from Spanish, French, Dutch, Portuguese, and a myriad of indigenous languages, which is reflected in South American communication law and policy. Néstor García Canclini (2005) has called South American culture a hybrid variety of influence and patterns.

Citizens’ liberty was a key idea in many South American countries during their preindependence struggles. It can be traced to liberal traditions in South America (Habermas 2006). In South American political culture, caudillos, or charismatic leaders, were a vital element in the “delegative democracies” (O’Donnell 1994), as they considered themselves the voice of the people. They often monopolized political decision-making processes.

The Struggle for Power and the Question of Freedom of Expression

During the nineteenth century, the caudillos occupied the vacuum of power left by the European colonial powers. As their predecessors did, they restricted freedom of expression and enforced censorship. But liberal principles impacted freedom of expression in most South American countries, and they evolved according to local customs and norms, which caudillos invoked in imposing their authoritarian rule. Two opposing free speech ideas coexisted: to obey caudillos vs. to achieve freedom while rejecting government censorship. The caudillos modus of operation prevailed, which was similar to the military command system. Freedom of expression was allowed insofar as it did not diverge from the leaders’ views and agenda.

In the late 1960s and early 1970s, several South American dictators as well as constitutionally elected presidents signed the American Convention on Human Rights, also known as the “Pact of San Jose of Costa Rica,” to protect freedom of expression and other human rights. However, the American human rights convention did not have a practical impact on freedom of expression in many nations of South America. Censorship was often imposed by non-elected governments. Besides, freedom of speech was subject to various penal limitations such as the crime of contempt or desacato. The late 1970s were a time of challenge to freedom of speech and the press in some South American countries. Non-elected government leaders suppressed freedom of expression through laws and regulations, and self-censorship was widely accepted as a fact of life. This was showcased by the military rule in Argentina, Uruguay, and Chile.

Significantly, however, the government restrictions on human rights made people increasingly conscious of the value of democracy and human rights. In the late twentieth century, the American Convention on Human Rights emerged as an important tool to stop these human rights violations. The Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights have protected, promoted, and defended human rights since the 1980s. Thus, many South American countries had to amend their constitutions to expand freedom of expression, freedom of information, and other related rights.

Constitutional Evolution

Argentina has the oldest constitution in South America. It does not explicitly mention freedom of the press as a right, but the Supreme Court of Argentina held that protection of press freedom falls under freedom of expression. Most constitutions of South American nations do not consider freedom of expression an absolute right. Colombia is an exception in that its constitution provides for the “immediate application of the consecrated rights” such as “the freedom to express and to diffuse . . . thought and opinions,” and prohibits censorship of expression.

The constitution of Peru guarantees freedom of expression, opinion, and diffusion of thought without prior censorship. Similar free speech principles are included in the constitution of Paraguay. But freedom of speech varies from country to country, depending on their social, cultural, and political conditions. Some countries consider the honor and reputation of individuals, including public officials, more important than the right to free expression.

The constitution of Brazil is similar to other constitutions in South America, but it is more detailed. It provides for the right of free expression of intellectual, artistic, scientific, and communications activities with no censorship or license. The constitution of Uruguay does not mention freedom of expression textually, but it stipulates protection of communication of thoughts through words, private writings, or published in the press, or in any other form. It forbids censorship of expression, but at the same time it disallows the abuse of freedom of expression. Similarly, the constitution of Suriname includes an individual’s right to express his or her feelings to the public.

Guyana became a democratic republic in 1970, and it adopted the Constitution of the Co-operative Republic of Guyana Act in 1980. The constitutional protection of freedom of expression in Guyana is a fundamental right, and it is limited only by “respect for the rights and freedoms of others and for the public interest.”

Some South American constitutions include treaties, pacts, and conventions relating to human rights that have a constitutional rank and prevail over conflicting internal legislation. Among them are the Argentine Constitution Reform and the Chilean Constitution Reform.

Right of Access to Information and Public Documents

The General Assembly of the Organization of American States (OAS) reaffirmed its previous resolutions in 2005 to allow civil societies’ participation in drafting access to information laws that would contain clear and transparent criteria. Several South American countries, including Peru, Argentina, and Bolivia, adopted freedom of information laws. In Bolivia, the Supreme Decree about Transparency and Access to Information exempts disclosure of information that affects territorial integrity and the existence of the democratic system, such as military strategic plans, financial information, and foreign relations.

In Argentina, access to public information is expressly guaranteed by the constitution, and the Personal Data Protection Act governs access to personal data. Similar freedom of information laws have been enacted in Chile, Paraguay, and Brazil. More recently, the Argentina government proclaimed an executive decree for public information access. The executive decree limits access to public information regarding national executive power activities and specific meetings of government agencies in charge of public services. Other access to public information laws in Argentina are the Establishing Access to Environmental Information Act and the Fiscal Transparency Act. But to implement the underlying principles of the freedom of information laws in Argentina is no easy task, for various administrative and political reasons.

Brazil has constitutional provisions for access to personal data, and also a 1997 law regulates habeas data, a judicial proceeding to “ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character;” and also “for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative.” Brazil is considering legislating access to government records. Suriname, French Guiana, and Venezuela have yet to put freedom of information laws in place.

Chile has laws limiting the public’s right to access government information, such as “state-held environmental information concerning the scope and terms of state deforestation project.” Such freedom of information limitation in Chile was submitted to the IACHR for review. The Commission determined that the “Chilean State’s interest in improving access to state-held information is insufficient.” It reasoned that the exemptions of the information access law “are overly broad, vague, and confer excessive degree of discretion on the official determining whether or not to disclose information” (Miguel Fredes González and Andrea Tuczek Frides v. Chile). In a case of 2006, Claude Reyes v. Chile, the Inter-American Court of Human Rights ordered Chile to train public officials on the rules and standards governing public access to information, and declared that access to information is part of freedom of expression under the American Human Rights Declaration. The 2006 case was the first time in its 27-year history that the Court had ruled on the right to access government information.

Colombia was among the first South American countries to recognize access to public acts and documents as a statutory right. The Colombian freedom of information law excepts from public release classified documents according to the constitution and laws, or those related to national defense and security. The constitution of Colombia provides that the professional secrets of journalists are inviolable. Colombia’s Anticorruption Act guarantees journalists access to “knowledge of the documents, acts administrative and other illustrative elements of the motivations of the behavior of the public authorities,” with some legal restrictions.

In Guyana, access to information for the public is limited when the informational access requested “would interfere unreasonably with the operations of the public authority,” or when it is “detrimental to the preservation of the document.” In Ecuador, the Law of Transparency and Access to the Public Information requires all information that is generated or controlled by public institutions and entities, public or private, connected with the state, be subject to the principle of publicity, unless otherwise stipulated by law.

The constitution of Venezuela provides “the right of access to the information and data concerning him or her or his or her goods which are contained in official or private records,” with exceptions established by law. The information access right includes the right to “access documents of any nature containing information of interest to communities or group of persons.” But the Venezuela government prevented Transparencia Venezuela from participating in an OAS meeting. Transparencia Venezuela intended to have presented a report “based on official governmental information” showing “that no steps have been taken to fulfill” the Inter-American Convention against Corruption.

Internet Regulation

In South America, Brazil is the country with the most Internet users, while Chile and Argentina have the highest penetration rates. ADSL is the leading broadband technology, although cable modems have a strong presence. Most countries have regulations about Internet service providers (ISPs), domains, and spam. Not everyone has access to the Internet due to economic constraints. Argentina, Brazil, Chile, and Peru, among others, have adopted the Rules of Heredia (2003) to disseminate judgments and judicial decisions on the Internet to promote “transparency in the administration of justice” and to protect personal data.

The Argentine constitution makes no mention of the Internet. A 1997 Executive Decree considers the Internet similar to the traditional news media in its freedom of expression under the constitution. The Argentine Supreme Court ruled that the constitutional freedom of expression principle includes disseminating and receiving information (F. Gutheim c/J. Alemann, April 15, 1993). The European Commission recognized in 2003 that Argentina provides an appropriate protection level for personal data, and thus Argentina can engage in the free traffic of personal data with EU member states without further requirements.

The constitution of Chile is identical to that of Argentina in that it contains no reference to the Internet. But some regulations determined procedures and terms to accept connections among ISPs and for the national dissemination of information via the Internet. Others stipulated the minimum quality indicators of the connections for the national Internet. At present, the Chilean government is deliberating on two draft laws for broadband and net neutrality, i.e., free Internet access without any obstacle or discrimination.

In 2002, the Ecuador government enacted a law that regulates, among other topics, messages of data, electronic signature, and electronic services, through nets of information, including electronic trade and protection for users. In Peru, young people are denied access to pornographic web pages that violate their moral integrity or affect their personal and family intimacy. In 2005, Peru enacted another law aimed at the use of unsolicited electronic mail and spam, while the penal code has applied to cyber-crimes since 2001. MERCOSUR, a regional South America organization, adopted a resolution in 2004 to facilitate Internet access for consumers in gathering information about products, services, and commercial transactions.

Freedom of Expression Restrictions

At present, freedom of speech in many South American countries is often limited extrajudicially, although it is constitutionally and statutorily guaranteed. Freedom of the press is brutally suppressed by some ruling authorities and those connected with drug trafficking. They kill, kidnap, or threaten journalists. For example, Colombian guerrilla organizations and paramilitary groups threaten journalists whenever their activities are reported. In other countries, such as Peru, journalists are attacked and threatened so often that Reporters without Borders has officially denounced those governments (2007). Why does this physical suppression of journalists continue in South America? To begin with, certain restrictive laws and political decisions stand in the way of free speech principles. Second, the absence of internal security and widespread corruption make it impossible to put into effect those constitutional and regional human rights principles and norms.

The American Convention on Human Rights forbids freedom of expression to be restricted through “indirect methods or means.” It also bars the “abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” One or more of such speech-constraining methods are used by many South American governments, including Venezuela and Argentina. In Argentina, Joaquin Morales Solá, a highly respected political analyst, stated that at present there is an anti-free-expression “climate” similar to the one that existed prior to the restoration of democracy in 1984 (Inter American Press Association 2007). Importantly, however, the crime of contempt or desacato was abolished in Argentina in the 1990s due to people’s pressure for democratic ways.

In Uruguay, where a long period of military rule (1973 –1985) was replaced with democratic politics, access to information about military and police violations of human rights is extremely difficult. The right to know is limited by the right of honor, as the Supreme Court of Justice in Uruguay stated in the Carlos Dogliani case in 2006. Uruguayan journalist Carlos Dogliani was sued for publishing information of public interest relating to the Department of Paysandú municipal government. He was charged with criminal libel and insults through communication. The Supreme Court, ignoring its own precedents, stated that it does not matter whether the facts are true because what really matters is “the possibility to offend other people’s reputation.” It also affirmed the journalist’s “criminal behavior” even though “the offended person had been condemned by that fact” (Inter American Press Association 2006).

Although the crime of contempt or desacato has been abolished in some South American countries, it remains on the books in Brazil, Peru, and Venezuela. In Venezuela, for example, desacato serves as an easy tool of censorship for the vice-president, the Supreme Court justices, cabinet ministers, and congressional representatives, as well as the military high command, in punishing insults to the authorities. To define insulting as a criminal offense is perilously more political than judicial because no exact definition of the expression has been given by the judges. The Venezuelan penal code mentions various possible offenses against the reputation, the dignity, and the honor of those who share in the political, judicial, or administrative power. In Venezuela, one of the most significant desacato cases was against General Francisco Usón for his comment on television about an incident in which many soldiers died. Such desacato crime was prohibited by the Law of Social Responsibility in Radio and Television, which imposes numerous obligations on broadcasters.

Because South Americans have limited access to television sets or the Internet, radio is an important means of communication. Politicians often use radio and television to connect with people. Ecuador, Bolivia, and Venezuela are cases in point. Bolivia has different ethnic groups and languages, and President Evo Morales, a member of the Aymara, speaks the language of the largest group of Bolivians.

In Venezuela today, freedom of expression is increasingly in jeopardy because of its government’s repressive policies. Courts tend to view freedom of expression constrictively. The Supreme Tribunal of Justice refused to accept the IACHR’s decision as mandatory. This judicial rebuff of the IACHR rulings denies that the constitutional principles of the international conventions on human rights that Venezuela has ratified have a constitutional rank. The Constitutional Chamber of Venezuela also held that authorities can establish prior censorship. Further, journalists are intimidated and their contract clauses are altered in such a way as to restrict the news media. A good illustration is President Chavez’s much criticized decision not to renew the broadcast license of Radio Caracas Television (RCTV) and his arbitrary distribution of government advertising. Direct and indirect methods to restrict information also tend to weaken people’s right to be informed and to inform. Article 19 (2007), an independent free speech organization in London, presented a submission to the IACHR detailing international standards relevant to the regulation of broadcasting in the case of RCTV.

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