Danilo Ángel Astori Saragosa
President of the General Assembly and the Chamber of Senators
14 March 2014
I am writing to you on behalf of ARTICLE 19, an international freedom of expression organisation, regarding the Draft Law on Audiovisual Communication Services (Draft Law), currently pending in the Uruguay Parliament.
ARTICLE 19 has been closely following the broadcasting reform in Uruguay and we have reviewed the Draft Law for its compliance with international freedom of expression standards (in July and November 2013). In particular, we recommended that the Law should guarantee the independence of the broadcasting regulator, the Audiovisual Communications Council (the Council), the public nomination of the members of that Council and that all member of the General Assembly be appointed after a process of public interviews
We are pleased that some of the problems with the Draft Law that we previously raised have been addressed by the Chamber of Representatives. We especially welcome the introduction of limitations in the broadcasters’ obligation to air official messages (cadenas) and public campaigns; that the restrictions on monopolies are not limited to private broadcasters and the increased precision in the content restrictions aimed at protecting children.
At the same time, we remain concerned about the lack of safeguards for the regulator in the Draft Law that was approved by the Chamber of Representatives. We are aware that during the parliamentary debate in the lower chamber, progress was made towards making the Council more independent by improving the appointment procedure of its members and by excluding those who actively participate in politics and unions.
However, the final Draft Law eliminated the Council altogether and transferred all its faculties to the Regulatory Unit of Communication Services (URSEC). The URSEC is not independent from the government since all its members are appointed by the Executive. We are mindful that this change was due to a constitutional bar to create new posts in the lead up to national elections and that the approved draft law suggested that the Council could be created in the future.
However, since broadcasting regulation is entrusted to the Executive and to a body it controls, the final Draft Law is highly problematic: we recall that international freedom of expression standards require that the regulation of broadcasting be vested in a body independent from the government. For example, in 2009, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights published a document on Freedom of Expression Standards for Free and Inclusive Broadcasting which stated that legislation creating broadcasting regulators should ensure their independence from political and economic pressures with operating, organizational and administrative guarantees. The 2003 Joint Declaration the UN Special Rapporteur on Freedom of Opinion and Expression, the OAS Special Rapporteur on Freedom of Expression and the OSCE Representative on Freedom of the Media expressed that media regulators “should be protected against interference, particularly of a political or economic nature.” We are, therefore, concerned that without safeguards to the independence of URSEC, the executive will be able to exercise undue control over the media, notably via the allocation of broadcasting licenses, their revocation, interference with content or the imposition of sanctions on broadcasters.
In order to meet international standards, we urge that the Senate modifies the Draft Law with a view of creating a separate independent broadcast regulator. Although the Constitution prevents the Parliament from creating new posts this year, the establishment of a new body in itself is not barred. Therefore, the law could create an independent regulator with all its regulatory functions and defer the appointment of the posts to a period after the elections. In the meantime, the current regulatory framework would continue to operate.
We believe that a similar procedure was used to create the National Institution of Human Rights which has structural, organizational and functional guarantees to safeguard its independence. Furthermore, the Draft Law should entrust all regulatory faculties, including granting licenses and imposing sanctions, to the independent regulatory authority. Finally, all members of the regulator should be appointed by the General Assembly following a process of public nomination.
I call on you to support the independence of the broadcast regulator in Uruguay. ARTICLE 19 remains at your disposition to provide further support to Uruguayan legislators in this process.
Thank you for your attention in this urgent matter and do not hesitate to contact us shall you need any further information.