Venezuela’s
Law of Social Responsibility in Radio and Television
Background
Prior to the elaboration
of the Organic Telecommunications Law of 2000, legislation regarding the
telecommunications sector was outdated, failing to adapt to the technological,
social, and cultural changes witnessed in the latter half of the 20th
century. In fact, until 2000, audiovisual broadcasts were regulated by the
Telecommunications Law of 1940—a law established prior to the arrival of
television to Venezuela. The 2000 law adapted to market realities and
technological advancements, and, as part of this initiative, the Law of Social Responsibility in Radio and Television
(LSR) was developed to update the regulation of radio and
television broadcasts and communications. As a whole, these regulations would
constitute a building block for the modernization of the country's
communications sector.
In January 2003, Venezuelan lawmakers introduced the
Law of Social Responsibility in Radio and Television intended to uphold
freedom of expression and information, support parents by limiting daytime
media content deemed inappropriate for children and adolescents, encourage the
broadcast of more educational programming on TV and radio, guarantee citizen
participation in the communications sector, and promote growth within the
country’s communications industry, among others.
Similar laws and
regulations exist in most developed countries, including the United States,
where laws prohibit inappropriate sexual content from being shown between the times
of 6 a.m. and 10 p.m. Recently in the United States, CBS was fined over
$500,000 when Janet Jackson exposed herself during the Super Bowl.[1]
Furthermore, the FCC proposed an indecency fine of $1.2 million against Fox for
broadcasting whipped-cream covered strippers and digitally obscured nudity
during an April 2003 episode of
"Married by America."[2]
Also, Clear Channel Communications dropped radio show host Howard Stern earlier
this year after receiving a $495,000 fine for indecency, including
"graphic sexual discussion and humor."[3]
In drafting the law, Venezuelan legislators held
in-depth studies of other countries' communication laws, paying attention to
the more representative and current regulations. Legislators analyzed
Argentina's Proyecto de Ley de Radiodifusión (2000); Colombia's Laws 14
(1991), 182 (1995), 335 (1996), and Accord No. 017 (1997); Mexico's Reglamento
del Servicio de Televisión y Radio Restringidos (2001); the United States'
Communications Decency Act, Children's Television Act (1990), and
Telecommunications Act (1996); Canada's Broadcasting Act (1991), Radio
Regulations (1986), and various ethical codes; the European Community's
Directives 89/552/CEE and 97/36/CEE (1997); Spain's Law 22 (1999); England's
Broadcasting Act (1990); France's Law 86.1067 (1986) and 2000-719 (2000), and;
Switzerland's Federal Law on Radio and Television (1992). Furthermore, the
legislators closely considered the San José Pact (1969), the International pact
on Civil and Political Rights (1976), and the Convention on Children Rights
(1990), which protect, among other things, freedom of expression and children
rights. Appendix A contains several tables comparing communications laws for a
wide array of countries.
Prior to its submittal to Congress, the law went
through a rigorous series of dissemination and critique, including popular
comment and formalized working groups. Presentations on the law were offered in
Venezuela's major cities, including Caracas, San Cristóbal, Maracaibo,
Barquisimeto, Valencia, Puerto La Cruz, and Mérida. Citizen participation and
input was then encouraged and administered through an electronic forum under
CONATEL's, Venezuela's Telecommunications Commission, website (www.conatel.gov.ve), emails to participación@conatel.gov.ve,
letters to CONATEL's headquarters in Caracas, and bilateral meetings with
diverse parties interested in the law. The working groups took place in the
Rómulo Gallegos Center for Latin American Studies (CELARG) with the
participation of 145 representatives of 55 institutions, including 14 service
providers, 7 chambers and associations, 10 community and civil society
associations, 3 non-governmental organizations, 9 governmental organizations,
and 7 universities, among others. Venevisión, RCTV, Globovisión, Televen, and
CMT, the five main privately-owned stations, participated in these working
groups and had the opportunity to influence the wording of the law. These groups
met for 10 one-day sessions.
This pluralistic process
echoes Reporters Without Borders position on such regulations. In an October 20th
press release on the Venezuelan case, the organization states, it "is not
opposed in principle to a law that determines the obligations of companies that
are granted a radio or television broadcasting license and [welcomes] the
information and communication's decision to consult many sectors of
society."[4]
Likewise, Article 13 of
the American Convention on Human Rights, which secures the freedom of
expression and forbids any government actions to limit it, includes a provision
stating that “public entertainments may be subject by law to prior censorship
for the sole purpose of regulating access to them for the moral protection of
childhood and adolescence.” Furthermore, Article 17 of the U.N. Convention on
the Rights of the Child declares that states “shall ensure that the child has
access to information and material from a diversity of national and
international sources, especially those aimed at the promotion of his or her
social, spiritual and moral well-being and physical and mental health” and that
the mass media should “disseminate information and material of social and
cultural benefit to the child.”
Although the law was initially met with some criticism
that the legislation was not specific enough and could be interpreted to limit
news coverage, lawmakers from both sides worked in the General Assembly to
finalize a mutually acceptable version of the law. The revised version of the
law was approved by Congress on November 24th, 2004, and will now be
amended accordingly and signed into law by President Chávez. This is expected
to occur before the year's end.
The
Law of Social Responsibility
The objective of the proposed LSR is to define and “establish the
social responsibility of radio and television service providers, related
parties, national independent producers, and users in the process of
broadcasting and reception of messages, promoting a democratic equilibrium between
their duties, rights, and interests, with the goal of seeking social justice
and contributing to citizenship formation, democracy, peace, human rights,
education, culture, public health, and the social and economic development of
the Nation, in conformity with constitutional norms and principles, legislation
for the holistic protection of boys, girls, and adolescents, education, social
security, free competition, and the Organic Telecommunications Law.”
Specifically, the LSR’s guarantees:
·
Judicial mechanisms
for families and the population as a whole to adequately develop the role and
social responsibility asked from them as an audience.
·
Respect for freedom of
expression and interpretation, without censorship.
·
Effective exercise and
respect for human rights.
·
An increase in social
and cultural information and material geared to children and adolescents that
could lead the progressive and comprehensive development of their personality,
aptitudes, mental and physical capacity, tolerance for others, and social
conscience.
·
The encouragement of
domestic and domestic independent productions.
·
Balance between the
duties, rights, and interests of people, radio and television service
providers, and related parties.
·
Dissemination of
Venezuelan cultural values.
·
Needs of
hearing-impaired individuals.
·
Promotion of an active
participation of the citizenry.
Application and
Interpretation Principles
The LSR is based on the following principles for
implementation and interpretation purposes: “freedom to express ideas, opinions,
and thoughts, free and plural communication, the prohibition of prior
censorship, responsibility, democratization, participation, social
responsibility, social solidarity, sovereignty, national security, free
competition, and the radio-electric spectrum as a public domain.”
Types of Programs
The LSR permits the transmission of five types of
programs: 1) educational and cultural, geared toward comprehensive training
that will allow viewers to exercise their rights as citizens and participate in
society and with the State; 2) informational, focused on disseminating
information of a local, regional, national, and international nature in an impartial, true, and opportune way;
3) opinion pieces; 4) recreational, and; 5) mixed, combining any of the aforementioned
categories. Program categories will be announced by using a 1-to-5-numeration
system.
Rating System &
Restrictions
Program categories will be based on language,
health, sex, and violence. A rating system ranging from A to E, with A being
the mildest, will be set to monitor programming and inform viewers of the type
of program being transmitted. Article 7 allows that violence be broadcast if it
is indispensable for the comprehension of the information, it is used to
protect the physical integrity of individuals, or it arises without
forewarning. As such, news broadcasts will not be forbidden from airing scenes
depicting violence as some critics have claimed.
Table B on page 8 summarizes these categories.
Table A shows the presentation time blocks that
determine television and radio broadcast content.
Table A – Presentation Blocks
|
Block |
Time |
User |
Categories Not Allowed for
Transmission |
|||
|
All-Users |
7 a.m. to 7 p.m. |
Children with out parental
supervision |
B (Language, Health, Sex) C, D, E |
|||
|
Supervised |
5 a.m. to 7 a.m. and 7 p.m. to 11
p.m. |
Children with parental
supervision |
C (Language) D (Sex, Health) E (Sex, Violence) |
|||
|
Adult |
11 p.m. to 5 a.m. |
Adults, older than 18 yrs. |
E (Sex) |
|||
Advertisement & Related Restrictions
Advertisements
may not exceed 15 minutes for every 60 minutes of broadcast; this time may be
divided into a maximum of 5 sections during the 60 minutes, unless the format
of the program requires a different interruption pattern.
Advertisements via insertion on the screen are only allowed
for sporting or artistic events. These shall not exceed 5 minutes for every 60
minutes of diffusion and may not occupy more than 1/6 of the screen.
Advertisements of the following is not
permitted: tobacco; alcoholic beverages; illegal drugs; professional services
for individuals that do not obey with conditions or requisites established by
the law; illegal goods, services, or activities; gambling; goods, services, or
activities directed towards children and adolescents that use or contain
violence, and; weapons, among others.
State's Access to Free and Obligatory Spaces
The
government has limited access to the airwaves for announcements of national
significance. These spaces shall not exceed 60 weekly minutes or 15 daily
minutes. The organization in charge of communications and information will
determine the time and frequency of these spaces, granting users 10 minutes out
of the 60 weekly minutes as a guarantee of access to service providers.
Paid Subscription Services
Cable
companies that charge a fee for their service must offer, free of charge,
access to open television channels as long as these do not exceed 15 percent of
the total channels offered to the user. Also, cable providers must incorporate
State television channels into its service and correctly block channels that
broadcast programs with an E sexual content.
On Democratization and Participation
This
article (No. 12) allows users to organize legally to ensure the following
rights:
·
The ability to receive
program information prior to their transmission.
·
Responses from service
providers within 15 days of the filing of a complaint.
·
Promotion and defense
of their communication rights and interests.
·
Access to public
records for messages disseminated by service providers.
·
Participation in the
process of formulation, execution, and evaluation of programs geared toward
critical education.
·
Participation in
non-binding public consultations for the elaboration of this law’s technical
regulations.
·
Solicitation of
financing for critical education projects, as well as for the promotion and
defense of users' rights and interests.
·
Access to free airtime
as specified by the law.
·
Promotion of dialogue
and exchange between service providers, users, and the State.
·
Organizations seeking such goals should be non-profit;
have a membership of at least 20 individuals; its members must not have
conflict of interests with service providers, and; members' properties or
access to resources will not contribute to influence or inhibit their
participation in the promotion and defense of the aforementioned rights.
Service providers must transmit a
daily minimum of 3 hours of educational, informational, and/or opinion pieces
geared towards children and adolescents.
Furthermore, these service providers
must broadcast a daily minimum of 7 hours of programs produced domestically
during the All-User Block. A minimum of 4 hours of this daily minimum must come
from domestic independent producers. During the Supervised Block, broadcasting
requirements are of a minimum of 3 hours of programs and advertisements
produced domestically, 1.5 hours of these being domestic independent
productions. Under no circumstances may a domestic independent producer occupy
more than 20 percent of a service provider's daily domestic independent production
requirement. 100 percent of advertisements must be produced domestically,
unless specified by international treaties between Venezuela and other
countries. 85 percent of advertisements aired by service providers must be
domestically produced. Rebroadcasts may not exceed 30 percent of weekly
transmission.
Television Programming Commission
In an effort to guarantee the democratization of the
airwaves, the Law creates a Television Programming Commission and a Radio
Programming Commission that will establish the mechanisms and conditions by
which airtime is assigned to domestic independent producers. These Commissions
will consist of a representative each from the ministry in charge of
information and communication, the service providers, the domestic independent
producers, and the users organizations.
On Democratization and Participation for Community
Service Providers
Public and community non-profit
channels must allocate a minimum of 70 percent of its daily transmission to
community productions. The same community or independent producer may not hold
more than 20 percent of the service provider's daily transmissions. Community
production generated by a community operator may not hold more than 15 percent
of its daily transmissions.
On Democratization and
Participation for Cable Companies
Cable companies that charge a fee for
their service will provide the State with a channel for educational and
journalistic programs by national independent producers.
All television service providers are
obligated to: 1) publish on a monthly basis printed program guides that
indicate the name, type, time, and date of transmission, and; 2) announce prior
to every transmission the name of, type, and warnings regarding the program.
Social Responsibility Directorate, Council, and Fund
The LSR proposes the creation of a Directorate and
Council of Social Responsibility.
The Directorate will detail management duties as
defined by CONATEL's General Director, a representative each from the
Ministries of Information and Communication, Education and Culture, and Health,
and a representative each from the National Women's Institute, the National
Council for Children and Adolescent Rights, the religious sector, academia, and
NGOs dealing with the protection of children and adolescents, and two
representatives from the user organizations. The latter four representatives
will be selected in an assembly convoked by CONATEL. The Directorate's duties
will be to: 1) discuss and approve technical norms derived from the law; 2)
establish and impose sanctions not assigned to CONATEL's Director or the
Ministry of Telecommunications, and; 3) manage and effectuate all necessary
actions to guarantee adherence to the Social Responsibility Fund and approve
funds for more expensive projects.
The Council will consist of a representative of each
the Ministries of Information and Communication, Education and Culture, and
Health, and representatives from the National Women's Institute, the National
Council for Children and Adolescent Rights, the religious sector, academia, the
users, indigenous communities, NGOs dealing with the protection of children and
adolescents, television and radio service providers, announcers, television and
radio workers, youth councils, and NGOs dealing with culture, among others.
This multi-sector Council will serve as a consultant for matters concerning the
Directorate.
The Social Responsibility Fund will contribute to
the principles of democratization, plurality, and social responsibility in
television and radio by ensuring the resources to support, develop, and promote
domestic production, training domestic producers, developing critical education
for the media, and conducting research related to the broadcasting of messages
in the country.
It will be financed by contributions from radio and
television providers for the development of diffusion activities within the
country. More specifically, service providers will contribute 2 percent of
yearly revenues to the Fund. Service providers will receive a 25 percent
discount when transmissions by domestic independent producers are greater than
50 percent of daily transmissions and a 25 percent penalty when program
retransmissions, advertisements, and publicity campaigns exceed 20 percent of
daily transmissions. Donations and interest payments from amassed contributions
will also aid the Fund.
Penalties
Penalties vary from denial of spaces
for broadcasts to suspension and revocation of license. Here are highlighted
some of these penalties.
Denial of Spaces for Cultural or Educational
Broadcasts
·
Failure to identify
program sources during the broadcasts.
·
Transmission of
inappropriate C-category language, health, sex, and violence elements under the
supervised block.
·
Disobeys time
limitations imposed on advertisements as stipulated under Art. 8.
·
Failure to turn in to
CONATEL copies of the recordings and broadcasts as required by Art. 23.
Fine Consisting of 0.5 to 2 Percent of Service
Providers' Previous Fiscal Period's Revenues
·
Non-compliance with
obligation to offer free and obligatory spaces to the State as specified in the
law.
·
Transmitting programs
with a sexual content of category E.
·
Transmitting
propaganda or advertisements against what is decreed under Art. 16.
·
Failure to broadcast
programs developed by national and national-independent producers as specified
in the law.
·
Not submitting
information required by the National Telecommunications Commission as specified
by the law.
·
Failure to comply with
requirements on the broadcasting of domestic, domestic independent, and community-based
productions.
·
Not granting free
spaces to the Executive Branch's entity in charge of communication and
information.
·
Transmitting messages
that illegally promote, make an apology of, or incite disobeying the current
judicial ordination.
·
Transmitting messages
that impede the actions of citizen security organisms and the judicial branch
that are necessary to guarantee the right to life, health, and individuals'
personal integrity.
Suspension and Revocation
·
Suspension of license
for up to 72 continuous hours when messages transmitted: 1) incite war, changes
to public order, and crime; 2) are against National Security, or; 3) are
anonymous. Suspension will also occur when the service provider receives 2
penalties amounting to 30,000 units each during a 3-year time period.
·
Revocation of license
for up to 5 years when a penalty is repeated following suspension and within 5
years of the first penalty.
The law provides a mechanism for service providers
to appeal their case either in person or by writing. (Art. 31-35). A clear and
fair process is in place to handle such issues. The following steps are in
place: 1) oral or written complaint; 2) submittal of evidence against
penalization; 3) investigation by CONATEL; 4) the Directorate will have between
30 and 45 days to reach a verdict, and; 5) depending on the outcome, the
possibility to submit decision to the country's courts.
Venezuela’s
Law vs. Other Countries
The international laws used as the
basis for the development of the LSR contain several elements that were also
adopted by Venezuelan legislators. These elements include the protection of
personal privacy; the promotion of national television and cinematography
production; a regulatory agency conformed by a wide array of sectors; strict
guidelines concerning advertisement; clearly outlined program categorization;
special broadcasts geared towards minors; the protection of minors from
vulgarity, sexuality, and other gross content; means by which the citizenry may
participate in the regulation of television and radio broadcasts, and; the
establishment of broadcasting blocks for all, supervised, and adult audiences.
Appendix A compares provisions from
Venezuela and seven other countries.