US embassy cable - 04CARACAS3365

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) 
 
------- 
SUMMARY 
------- 
 
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. 
 
--------------------------- 
PROVISIONS OF THE "GAG LAW" 
--------------------------- 
 
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. 
 
------- 
COMMENT 
------- 
 
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 
 
 
NNNN 
      2004CARACA03365 - CONFIDENTIAL