Legal analysis
Bolivia: Law on Telecommunications and Information and Communication Technologies
ARTICLE 19
03 Feb 2012
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The purpose of this analysis by ARTICLE 19 is to assess the new Bolivian Law on Telecommunications and Information and Communications Technologies (“the ICT Law”) by reference to international standards on freedom of expression.
In the analysis, ARTICLE 19 welcomes several features of the new Bolivian ICT Law. In particular, the Law seeks to guarantee universal access to Information and Communications Technology (“ICT”) services, notably by exempting providers and operators of ICT services in rural areas from certain tax duties. The ICT Law also promotes media pluralism by prohibiting ICT operators and providers from engaging in anti-competitive practices, including price-fixing and concentration; and it requires the installation of the necessary infrastructure for broadcast development in the digital age, namely the installation of fibre optic cables.
However, the ICT Law falls short of international standards for the protection of freedom of expression in several key respects. First, the ICT Law fails to guarantee the institutional autonomy and independence of the authority regulating ICTs. Second, the ICT Law entirely fails to lay down rules governing the structure of the regulatory authority, including its composition, appointment of its members, tenure, and accountability. Thirdly, the Law fails to provide for a clear and precise licensing process. Fourthly, the Law provides for an unduly harsh sanction, namely confiscation, in undefined circumstances. Finally, the Law gives the authorities carte blanche to request the cooperation of all telecommunications service operators and providers in cases of an emergency, without providing any safeguards against disproportionate emergency measures.
ARTICLE 19’s analysis includes detailed recommendations on how the ICT Law should be amended to meet the international freedom of expression standards and calls on the government to urgently review and amend the ICT Law accordingly.
Key recommendations
- The autonomy and independence of the Telecommunications and Transport Regulatory and Supervisory Authority should be guaranteed and protected by law, including in the following ways: (a) specifically and explicitly in the legislation which establishes the body and, if possible, also in the constitution; (b) by a clear legislative statement of overall broadcast policy, as well as of the powers and responsibilities of the regulatory body; (c) through the rules relating to membership; (d) by formal accountability to the public through a multi-party body; and (e) in funding arrangements.
- The licensing process should be more clearly defined in the law, not regulations. This should cover clear eligibility requirements, clear licensing and licence renewal procedures, objective assessment criteria, a right to amend licensing conditions and a schedule of licence fees applicable for each type of licence.
- Article 96 of the ICT Law, which concerns seizure, should be repealed, or in the alternative, should be amended to include a definition of the circumstances in which the regulatory authority may seize materials belonging to ICT operators and providers.
- Emergency powers requiring ICT operators and providers to make their services, networks, and communications going through those networks, available to the authorities upon request should be repealed.
