However, according to the project itself the reason behind the law is to achieve a balance and harmony between the rights of freedom of expression and the right to have access to appropriate, truthful and impartial information, all of the above in compliance with Venezuela's Constitution, its laws and the treaties and international agreements subscribed and ratified by the State.
What is beyond any kind of imagination is how come this law is in accordance with Venezuela's Constitution and even further, how the law is not going to challenge the obligations Venezuela has acquired by subscribing and ratifying a multiplicity of international agreements.
The first provision of this Project of Law Against Media Crimes that is worth revising is Article 4, which defines what should be considered a media crime in Venezuela, paradoxically instituting that it will be a media crime any kind of information that generates a sense of insecurity or impunity. It seems obvious that the government is trying to stop the media from broadcasting news about the prevailing insecurity in Caracas and other cities of the country, especially when you take into account that more people die on a weekend in Caracas, than in the Iraq war. During the ten years of the Bolivarian revolution, little has been done to stop assaults, robberies, kidnappings and numerous murders. President Chávez’s talking has increased the hatred between the rich and the poor ones, prompting this situation, so for him and his interests it is better that Venezuelans and the international community are not aware of such situation.
Articles 5, 6, 9 and 11 of the Project, not only criminalize the broadcasting of false news, but also when media manipulates news or even intimidate or instigate war, hatred, violence or hostility during their daily transmissions. Undoubtedly, false and manipulated news are never good to watch, but the problem here is who is going to determine when information is false or has been manipulated. The large majority of the district attorneys, administrative authorities and the judiciary are willing to follow Chávez and his allies’ orders. Therefore, if the government considers that the news is false (for example, let's suppose that according to the media the number of deaths in Caracas on a particular weekend is different from the official number) sanctions will easily emerge against media, its executives and even the anchorman who gave away the news. Manipulation of news is such a vague term that anyone can be accused of such crime whenever the government (meaning Chávez and his allies) desires to.
The genuine and most direct effect of this Project of Law Against Media Crimes will be a forward and straight harassment hostile to freedom of expression in Venezuela, with censorship rising against a mixture of information that luckily still nowadays can see its way to the Venezuelan public and to the international community. Moreover, the channels to criticize will be lost, extinguishing the opportunity to show the inefficiency and corruption of Chávez's government.
Besides the unconstitutionality of the Project, already explained above, we must remember that Venezuela is not only a party to the United Nations, but also to the Inter-American System of Human Rights, where freedom of expression is equally protected. According to Article 23 of the Venezuelan Constitution, such human rights treaties “have constitutional hierarchy and they prevail in the internal order, insofar as they contain norms more favourable to the established ones by this Constitution and in the laws of the Republic, and they are of immediate and direct application by the courts and other devices of the different branches of the government”.
The Universal Declaration of Human Rights clearly establishes in Article 19 that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. Likewise, Article 13 of the American Convention of Human Rights determines that:
Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a. Respect for the rights or reputations of others; or
b. The protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as 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.
4. Notwithstanding the provisions of paragraph 2 above, 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.
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.
The Inter-American Court of Human Rights has indicated that those who are under the protection of the Convention must not only have the right and freedom to express, but also the right to look for, to receive and to spread information and ideas of diverse nature. It is for that reason that freedom of expression has an individual and a social aspect. (Ivcher Bronstein. Judgement, February 6, 2001).
Regarding the individual aspect, the Court has said, that freedom of expression does not exhausts in the theoretical recognition of the right to speak or to write, but in addition it understands, inseparably, the right to use any appropriate means to spread information to a vast amount of people. (“La Última Tentación de Cristo”. Judgement, February 5, 2001; Ivcher Bronstein. Judgement, February 6, 2001; Herrera Ulloa. Judgement, August 31, 2004; Palamara Iribarne. Judgement, November 22, 2005).
Concerning the social aspect, the Inter-American Court has noted that freedom of expression is a route to exchange ideas and information among people, and as such, it includes the right to seek information and to communicate to others our own views. Additionally, it implies the right to find out other people opinions. For the common citizen this right has equal importance regarding the awareness of others opinions and the right to disseminate our own opinion. (Ricardo Canese. Judgement, August 31, 2004).
This right has even more importance when we examine the role of the media in a democratic society, since the media are true mechanisms to guarantee freedom of expression, and not vehicles to restrict it, which is why it is essential for the media to collect the most diverse information and views. (Ivcher Bronstein. Judgement, February 6, 2001).
In consequence, the Inter-American Court of Human Rights has understood that the concept of public order demands that within a democratic society, it is mandatory to ensure a vast flow of assorted news, ideas and opinions from different sources, as well as broader access to information. Freedom of expression is included in democracy foundations, and democracy is not conceivable without free debate and dissent. (¨La Colegiación Obligatoria de Periodistas¨. Advisory Opinion OC-5/85, November 13, 1995).
Freedom of speech is so important to democracy that the Court has not hesitated ascertaining the following:
Without effective freedom of speech, materialized in its entirety, democracy vanishes, pluralism and tolerance begin to fade away, the control mechanisms and the complaints of the citizens start to become ineffective and all this situation prompts to the creation of a fertile field for authoritarian systems grow to be rooted in society. (Herrera Ulloa. Judgement, August 31, 2004).
However, the Court has also recognized the possibility to restrict the freedom of speech, but only through a way which should not limit beyond what is strictly necessary and therefore become direct or indirect censorship. (Herrera Ulloa. Judgement, August 31, 2004; Palamara Iribarne. Judgement, November 22, 2005; Ricardo Canese. Judgement, August 31, 2004).
All this case-law or jurisprudence about freedom of expression in international law is very important, though it may feel useless or inapplicable to Venezuela, since its government, unsurprisingly, is not executing the decisions of the Inter-American Court of Human Rights, and the Constitutional Chamber of the Supreme Court has even exhorted the Executive branch to denounce the American Convention of Human Rights to withdraw the jurisdiction of the Court.
All these details and the Project of Law Against Media Crimes unmistakably show that everyday the Chávez regime is very far away from democracy and there are already enough grounds for the Organization of American States to apply the Inter-American Democratic Charter, specifically Article 20 which states:
In the event of an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, any member state or the Secretary General may request the immediate convocation of the Permanent Council to undertake a collective assessment of the situation and to take such decisions as it deems appropriate.
In the mid time, we must remember two things: First, what George Washington said many years ago about freedom of speech:
“If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter”.
Second, Venezuelans must always remember what Article 350 of their Constitution states:
The people of Venezuela, true to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights.
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