01 October 2015


There are today some modifications made to the legislation, regulatory proposals and amendment of current laws that go directly or indirectly against freedom of expression and of the press. The Presidential Advisory Commission on Decentralization and Social Development submitted to the President on October 7, 2014 the conclusions of its work. In the chapter regarding Citizen Participation and Democratic Control there are proposed a number of measures under the title “Strengthening Local and Regional News Media” that on being brought together in legislative proposals or in administrative measures would give rise to effects damaging for freedom of expression and of the press. The first of the measures proposes that there be guaranteed “constitutionally the right to information and communication in three kinds of media – 1. Privately owned, 2. Publicly-owned, 3 Community, regional and multicultural.” The second seeks to guarantee a 33% quota in television and radio spectrum concessions for not-for-profit news media of a regional, local, community and multicultural nature. The third refers to government advertising. In this regard the Commission suggests a “model law of government advertising” indicating that “50% of what the government spends in dissemination through mass news media shall be assigned to the strengthening of regional, local and community news media.” The proposals for amendment of the Cilean Political Constitution that the current government has raised would revise the chapter that contains the basic definition of people’s rights, among them freedom of expression. It is indicated, as part of the proposal, that “a law shall determine the limits to concentration of social news media ownership and the plural opening up of the radio-electric spectrum, and the distribution of public advertising, so as to ensure informational plurality and free access to information.” It will be important to review the manner in which these rights will be recognized and protected and how widely this legislation could be applied, being able to intrude in the editorial stances of the media. On the debate over new constitutional wording it is essential that freedom of expression be guaranteed fully and precisely, as professional secrecy and the possibility of creating and maintaining news media. There are several legislative bills in process. The bill on extended responsibility of the producer consists of the establishment of a new system of waste management through an environment management instrument of an obligatory nature called “Extended Responsibility of the Producer” for nine categories of products, among which are included “newspapers and magazines.” It consists of the fact that the manufacturer or importer of certain products shall have to take charge of the product once its useful life is ended, having to comply with the goals of recycling established by the Environment Ministry. The bill contains several dangers for freedom of expression and of the press. For the first time in the history of Chilean legislation – which has ensured the protection of press freedom since 1812 – in order to sell a newspaper or magazine what is required is a prior authorization by the Environment Ministry, amounting to a form of “prior censorship” contrary to Article 19, no. 12 of the Constitution, to Law No. 19,733 on “Freedom of Opinion and Information and the Practice of Journalism” and to international treaties adhered to and ratified by Chile. The Superintendency of the Environment will have the power to decree the prohibition of sale of a newspaper or magazine when there has been no compliance with the goals of collection or valuation established in the supreme decrees that for this effect the Environment Ministry issues, as according to the bill “not to comply with the goals of collection and valuation” amounts to a “serious violation” that will give rise to the punishment of “prohibiting the sale of the main product while the violation is maintained.” There does not exist in Chilean legislation a figure similar to what is proposed. The Press Law regards suspension of the media only in the case of the Courts of Justice determining it and in the exceptional case of there being repeated non-compliance by said media with obligations to inform. The environmental legislation considers “temporary or final closedown” only in the case of acts that have damaged the people’s health. The bill establishes that both the marketers and distributors of newspapers and magazines have the obligation to accept, without any cost, delivery of principal products waste by the consumers, so long as their installations have sufficient room. In this way any commercial establishment where newspapers or magazines are sold will have the obligation to receive this “waste” and additionally is obliged to turn it over free of charge to the agents hired for the respective management system. This amounts to a restriction of the right to property and a reduction in the right to free economic initiative. The main problem of the bill under study is that it does not recognize the reality of various industries. On the one hand there is a developed paper recycling industry, with which the press works daily, and on the other there are multiple small size news companies for whom a duty such as that established in the bill is disproportionate. The National Press Association (ANP) has submitted to some members of Congress a proposal to modify the bill under study with the aim of excluding newspapers and magazines from it. This modification has not yet been submitted to discussion. The bill for Strengthening and Transparency of Democracy (No. 9790-07) submitted by the government sets out measures to achieve “electoral campaigns with equity and respect for the people.” Among these it is pointed out that electoral propaganda could only be carried out in news media and on radio stations that have reported their fees to SERVEL (Electoral Service) no later than the deadline for registering candidates. With the obligation that the news media report on their fees, under threat of preventing them publishing political propaganda, there are set limits to the right of media ownership that restrict their income and make it difficult for them to carry out their work. What is sought with this legislation is that there be transparency in political campaigns, however today the news media have their fees at the disposal of the public on their Web sites, to which everyone can have access. In addition SERVEL has the power for candidates to popular elective offices exhibit the amounts paid for advertising. The Chile Journalists Guild, jointly with members of Congress, has been insisting for several months on exempting journalists from paragraph 4 of Article 22 of the Labor Code, which establishes that the 45 hour a week workload is not applicable to those that “work without immediate higher auditing … or provide their services preferably outside the place or site of the company operations, through the use of information or telecommunications media.” Journalists have been in agreement that their work not be subjected to a workday of a certain number of hours, but that a more flexible workday, with compensations of various kinds, as extra payment in the case of longer workdays or more prolonged vacation periods, among others. The bill implies being detrimental not only for news companies, which have to count on various work shifts but also for the journalists themselves who see their remunerations lessened. The Labor Office, at the request of the Journalists Guild, has begun a systematic process of control of the media with constant audits that have implied the payment of fines of large sums of money. The bill that amends the Law on Protection of Personal Information No. 19,628 submitted in January 2012 includes the practice of journalism and freedom of expression. It considers the need for prior and express consent for the delivery of personal details and establishes certain circumstances in which this consent would not be necessary, such as medical urgencies, criminal investigation of statistical studies. However, not included in this list are journalistic investigations, leaving the newsgathering activity subject to legislation regarding the protection of personal information and limiting in this way access to information for journalists. The media could find themselves required to eliminate certain information in having to meet the requests of elimination that the law authorizes. A bill seeks to amend the Press Law regarding the right to clarification or rectification applying to people that have been unjustly alluded to or offended by some media between September 1973 and March 1990. This amounts to an unjustified measure, first because it supposes an ample period of time during which “offended persons” have the right to rectification, which means increasing the current period of being subject to statute of limitations from 20 days to 40 years. In second place the exercise of this right implies making rectifications legal. On the pretext of incentivizing national music the Law on Encouragement of Chilean Music establishes the obligation for radios to dedicate at least 20% of their programming to broadcasting national artists. This percentage can only be covered by the broadcasting of music – excluding for example interviews – and in determined time slots, implying a direct intervention in a media outlet’s editorial stance and programming. In addition it requires immediate implementation, eliminating the recommendation of establishing a timeframe of at least two years for radio stations to adjust their programming. It is also established that international shows or concerts shall hire Chilean opening acts, otherwise they will have to pay the VAT without having access to tax exemption. In June there was published the proclamation of the Law on Food Labeling which contains restrictions and limits on advertising these products, negatively impacting freedom of expression, as the sale of advertising is one of the main forms of financing news media and a restriction in this regard could signify an even greater difficulty for media to continue to inform freely. In the cases of television broadcasts this advertising can only be done between 10:00 p.m. and 6:00 a.m., with the resulting limitation of the sale of advertising and financing of the media.