CONTENT LAW FRIGHTENS MEDIA AND FREE SPEECH

C O N F I D E N T I A L CARACAS 003365

SIPDIS


NSC FOR CBARTON
HQ USSOUTHCOM ALSO FOR POLAD

E.O. 12958: DECL: 10/29/14
TAGS: PHUM KDEM PGOV VE
SUBJECT: CONTENT LAW FRIGHTENS MEDIA AND FREE SPEECH
ADVOCATES

REF: STATE 223273

Classified By: POLITICAL COUNSELOR ABELARDO A. ARIAS FOR REASON 1.4 (d)

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SUMMARY
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1. (U) Pushing to advance the "revolution" following the
favorable outcome of the recall referendum, the GoV has made
good on its promise to seek enactment of the "Law of Social
Responsibility in Radio and Television." The private media
insist it's a significant step toward the muzzling of free
expression, while the GoV claims the law aims to protect
society, especially children, from inappropriate content.
Amongst other effects, the law would regulate content and the
television schedule, require large portions of daily
programming to be produced by "national independent
producers" (rather than the television stations or foreign
producers),punish loosely-defined character defamation of
public figures, regularly require airtime be ceded to the
government, limit paid advertising and publicity, and levy a
tax on the media to finance a "Fund for Social
Responsibility." The law would back these requirements with
the threat of fines and suspension or revocation of licenses.
The power to monitor, evaluate, and penalize would belong
the National Telecommunications Commission (CONATEL),a
sub-agency of the Ministry of Infrastructure whose director
is named by the President. END SUMMARY.

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PROVISIONS OF THE "GAG LAW"
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2. (U) The draft law covers all forms of broadcast media.
Included are: "open" broadcast television (VHF and UHF),
"open" radio (FM, AM, and community radio),and subscription
television (cable and satellite). The present wording is such
that the law can be applied to future, as yet unimagined,
types of electronic media. A provision claiming jurisdiction
over internet sites pertaining to Venezuelan broadcast media
companies has been removed from the most recent draft.


3. (U) The legislation specifies a complicated system of
schedules and classifications of inappropriate content which
is to be regulated within those schedules. It creates three
categories of programming time: All-User time (07:00-19:00),
Supervised time (19:00-23:00 and 05:00-07:00),and Adult time
(23:00-05:00). The content largely prohibited during the
first two time categories includes most types of sexual
content and crude language, as well as such "unhealthy"
conduct as drinking excessively and smoking. "Violent" images
and sounds (broadly-defined) are also banned during all but
the adult hours.


4. (U) Television and radio stations are convinced that this
is the provision which will be used to silence them. They
argue that it would be nearly impossible to produce a news
product in which images or sounds of, for example, a
terrorist attack (9/11 is the commonly-cited example) are
prohibited. During all but the adult hours, the law bans
content which presents elements of "physical, psychological,
sexual, or verbal violence exercised individually or
collectively against one or more people, objects, or animals"
and also that which presents "the consequences or effects" of
the aforementioned types of violence. No exception is made
for news. Stations would also have to publish a monthly


programming schedule and stick to it, the only exceptions
being for government broadcasts and for live "exceptional"
messages.


5. (U) The draft legislation now provides no more permissive
standard in portraying public figures than for private
figures, and the law would explicitly ban character offenses.
Article 3, paragraph 3 states that one of the bill's primary
goals is to, "Promote the effective exercise and respect for
human rights, in particular, the protection of honor, private
life, intimacy, one's own image, confidentiality, and
respect...without censorship." Some reporters worry that this
clause may be used to punish any embarrassing disclosure
about public or private officials, whether personal,
professional, or criminal, and suspect that it might even be
used to discourage political cartoons or parodies.
Legislators changed the language from "guarantee" the
protection of honor to promoting it, when they approved the
article in mid October. Still, media figures believe the
intent of this provision remains the same. And though
explicit penalties for such offenses have been removed from
the bill, media figures believe the new penal code, also
working its way through the assembly now, will provide the
punishment.


6. (U) One provision that causes grave concern amongst
broadcasters is the article that requires large portions of
the schedule be given over to "national independent
producers." For instance, 60% of the All-User time
programming must be of national origin, while 36% of All-User
programming must be the product of national independent
producers (NIPs). Only 15% of a stations' independent
programming can come from any one NIP.


7. (U) According to Article 13, to be classified a NIP by the
National Telecommunications Agency (CONATEL),a producer must
be Venezuelan and resident in Venezuela, not related by a
fourth degree (nor married to or cohabitating with) anyone
employed by a radio/TV service provider, possess experience,
"demonstrate capacity to produce national productions," and
comply with the rest of the requirements established in the
technical norms (no further reference to where to find those
norms). The person also must not be linked through contract,
active participation, address, or subordinate commercial
relationship to any radio or television service provider.
These requirements are retroactive for the 12 months
preceding application to CONATEL to be classified a NIP
(reduced from 24 months in previous drafts). CONATEL has the
right to revoke NIP status at any time. Opponents of the bill
say that this effectively forces media to cede control over
as much as half their airtime to outsiders who, 1) have no
experience in producing programming and, 2) are beholden to
the government.


8. (U) CONATEL's broad role in regulation, review, and
sanctions worries media and opponents of President Hugo
Chavez. A presidentially-appointed director heads CONATEL,
which falls under the Ministry of Infrastructure. Earlier
versions of the law, as proposed by CONATEL, envisioned the
creation of a semi-autonomous National Institute of Radio and
Television (INART),which would have been responsible for
monitoring media compliance with the law. Subsequent
versions, however, granted those powers to CONATEL. Critics
point to four areas of concern regarding CONATEL's proposed
oversight role: 1) its role in granting NIP status to
producers, 2) its approval of User Committees, 3) its nearly
complete control over the sanctions regime, and 4) its


financing of these activities and of NIPs through a special
tax levied on media companies, called the "Fund for Social
Responsibility."


9. (U) According to article 19, the "Directorate of Social
Responsibility," would sanction violators of the media law,
under the direction of CONATEL. The composition of the board
guarantees that the government will always have at least a
majority vote. The directorate is to be comprised of one
representative from each of the following: the Ministries of
Communication and Information, Health, and Education and
Culture, the National Institute of Women (INAMUJER),the
National Council for the Rights of Children and Adolescents
(CNDNA),the churches (collectively),the universities with
graduate schools of communication (collectively),the "users"
(collectively),and NGO's concerned with protection of
children (collectively).


10. (U) CONATEL's power to declare violations of the law and
impose sanctions causes the greatest concern among
broadcasters and their supporters. For television stations,
fines would range from $13,000 for a minor infraction to
$430,000 for more "serious" infractions. Violations would
include showing violence during the day (apparently to
include that which appears in news programming),not
identifying themselves as required in article 4 (in TV's
case, by displaying their logo in the top left-hand corner at
all times, including during commercials),and not
broadcasting the required quota of NIP programming. In the
case of radio, fines are no more than 50% of the equivalent
television fine.


11. (C) Opposition deputy Gerardo Blyde (Primero Justicia),a
leading negotiator of the bill with the Minister of
Communication and Information, says that even the most
financially sound of the media companies would not be able to
withstand repeated fines, which he characterized as
"excessive." He asserted that the government could bankrupt
leading station Venevision with three maximum fines, leaving
the channel in the hands of the government. Felipe Serrano,
director of the Venezuelan Chamber of Radio Broadcasters,
expressed a similar concern to Poloff, saying many radio
stations, if fined, would end-up in government hands.


12. (U) Beyond fines, broadcasters would face suspension of
rights for up to 72 hours for such infractions as:
broadcasting messages which "promote, apologize for, or
incite alterations of public order," or "are contrary to the
security of the nation." Broadcast rights may also be
suspended after receiving two of the maximum monetary fines
within a three year period. The most serious penalties,
imposed for recurring infractions, are suspension of license
for up to five years or revocation of license. Broadcasters
may appeal sanctions to the Minister of Infrastructure and,
subsequently, at the Supreme Court (TSJ).


13. (U) A "tribute" of two-percent of gross annual revenue
will be levied on all broadcast media enterprises by CONATEL
and will be used to create and sustain a "Fund for Social
Responsibility." CONATEL will use this fund primarily to
finance the operations of NIPs. It will also fund other
aspects of the agency's oversight of the law, such as its
approval of "User Committees." Under the law, Venezuelan
citizens can form "User Committees" to monitor media content
and file complaints; upon which CONATEL confers official
status. Critics assert that CONATEL would approve mostly
committees sympathetic to the President, or hostile to the

media and the opposition. The result, according to one
opposition lawmaker, would be "Bolivarian Circles of
Communication." In addition to fines and more serious
penalties, the law requires alleged violators to answer all
user committee complaints formally within 15 days. Failure
to meet the 15 day deadline would lead to punitive actions
against the enterprise.


14. (C) Venezuelan media also complain that the law will lead
to self-censorhip. A lawyer for all-news channel Globovision
asserted that there would be a "chilling effect that will
lead to prior restraint." The primary cause, she and others
argue, is the "third party liability" clause in the
legislation. Electronic media outlets will not only be held
accountable for the content they produce and the images they
transmit, but also for what their guests and interview
subjects say. Advertisers too will be legally liable for any
prohibited content aired within a program that they are
sponsoring or during which they have purchased time. If an
interview subject violates "the honor," "intimacy," or
"reputation" of a public figure in the course of an
interview, the station and sponsors can be held equally
liable. The same is true if a station is issued a violation
for showing scenes of violence or the results thereof. The
only exception granted by the law is for "live, direct from
the scene transmission, when the broadcaster can prove that
it acted diligently to avoid or suspend the infraction."
Media fear that CONATEL's interpretations will be subjective
and depend on the government's disposition toward the company
in question.


15. (U) Aside from formalizing the government's right to
take-over the airwaves with "cadenas," the law would also
require all stations to cede to the government 70 minutes per
week for publicizing educational and informative messages,
the timing of which is to be left to the Minister of
Communication and Information. Of that 70 minutes, the
government must cede 10 minutes to "the users." Subscription
television services (cable and satellite),which must have
government authorization to operate, will be required to
carry all "open" channels (including VTV, which belongs to
the government, but captures little audience share) and to
provide one channel to the Ministry of Communications and
Information exclusively for the airing of programs produced
by NIPs.

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COMMENT
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16. (C) It seems likely that Venezuelan legislators will make
minor changes to some controversial aspects of the bill.
Others will be easily approved. In fact, as the GoV points
out, some aspects of the law resemble conditions under which
broadcast media operate in some European countries. However,
there have been no signs of government willingness to lessen
CONATEL's control over media content. Regardless of small
adjustments that are won by the opposition, the overall
effect of the law, once implemented, will be one of
restricting free speech and lessening criticism of the
government, both through direct censorship, and through
self-censorship. Much of the law codifies censorship. Under
this law, as one opposition deputy put it, "It will be costly
to criticize the government in the future."
Brownfield


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