Wednesday, 3 April 2013

Freedom of expression and the right to information in Latin America

By Carlos Fortin

A debate is raging in Latin America about government interference with freedom of the press. It was triggered by a proposal put forward in January by the so-called ALBA Group of countries – basically Bolivia, Ecuador, Nicaragua and Venezuela - to downgrade the activities of the Special Rapporteur for Freedom of Expression of the Organization of American States (OAS). The proposal was opposed by other governments and a number of NGOs. Prominent among the latter was the Inter American Press Association (IAPA), a business association that includes all major newspaper chains in the Western Hemisphere. IAPA has also consistently denounced the absence of freedom of the press in Cuba as well as de facto government pressures on the media  -in particular the discriminatory use of public advertising – in countries such as Argentina, Ecuador, Guatemala, Mexico, Nicaragua, Panama and Venezuela. The ALBA proposal was defeated at a special meeting of the OAS on 22 March.

So far, one would say, so good. However, IAPA has also recently been involved in a considerably more questionable effort at supporting opposition to proposals from some Latin American governments to set legal limits to the concentration of ownership in the media. Specifically, the Argentine government introduced legislation in 2009 limiting the number of licences for radio and television broadcasting that could be held by a single individual or company; it is currently involved in a judicial controversy with the main newspaper chain, Clarin, which is challenging the constitutionality of the law before the Argentine Supreme Court. The Ecuadorian and Honduran governments are proposing similar legislation.

IAPA's reaction in effect has been to endorse the view that the proposed measures are contrary to freedom of expression. In the case of Argentina, the Resolution adopted at the IAPA Midyear Meeting in early March 2013 cites approvingly Clarin's contention that the media law ‘violates constitutional rights, among them the freedom of expression, equality before the law, the right to property, and the ex-post-facto principle, among other fundamental guarantees’.

The problem with this stance is that it ignores the collective dimension of freedom of expression. This notion goes back to John Stuart Mill who in his Essay on Liberty (1859) had already recognised that freedom of expression should not only be understood as an individual right but as part of a social mechanism that allows political decisions to be balanced and right.1 The view has been adopted by modern democratic theory under the concept of the right to information: the right of society to have a pluralist media system whereby all viewpoints and ideas can be known and compared.2  Concentration of the ownership of the media conspires against pluralism, a point that was central to the debate in the UK concerning the 2010-2011 failed attempt by News Corporation and its owner Rupert Murdoch to gain full control of Sky TV.3

On the strength of that rationale, most advanced Western democracies have special regimes limiting concentration in the media that go beyond the general anti-monopoly regulations. It is odd to suggest that governments in Latin America that are trying to introduce such regimes are somehow departing from the route to democratic development. And this, of course, is not to condone other shortcomings those governments may have in their approach to the media, such as discriminatory treatment of the opposition press.

1. John Stuart Mill, On Liberty and Other Essays, Publishing, 2010, p. 33.
2. I elaborated on this in a paper published in 2011: ‘Derecho a la información y propiedad de los medios de comunicación: teoría, normativa comparada, problemática chilena’, Revista de Derecho Público, Santiago, Universidad de Chile, No. 75, second semester, 2011, pp. 171-241.
3.‘British media join forces against Murdoch takeover of BskyB’, The Guardian, 11 October 2010.