Report to the Midyear Meeting

Panama, Panama

March 6 – 9, 2015

Regulatory proposals and reforms are beginning to appear which threaten freedom of the press and information.

The Presidential Commission on Decentralization and Social Development delivered the conclusions of its work to President Michelle Bachelet on October 7. In the chapter on Citizen Participation and Democratic Control, it proposes "to fortify the local and regional communications media," a measure to guarantee "the constitutional right to information and communication in three types of media: 1. Private; 2. Public; 3. Communitarian, regional, and multicultural."

The second measure seeks to guarantee a 33% share in concessions of digital television and broadcast spectrum space for non-profit media outlets of a regional, local, communitarian, and multicultural character.

In the third measure the Commission proposes a "Mirror law on state advertising," indicating that "50% of what the State spends on publicity through mass communications must be assigned to strengthening regional, local, and communitarian media."

The possible inclusion of these measures would give the State unjustifiable power to intervene.

The proposals to reform the Political Constitution that this government has offered are worrisome. They set up three basic reforms: reform in education, in process; tax reform, already underway; and a new Constitution, which would revise the basic definition of the rights of persons, among them, freedom of expression.

On the right to freedom of expression, it appears that "a law will determine the limits to concentration of the property of the communications media, as well as the wider opening of the broadcast spectrum, and the distribution of public advertising, in such a way as to guarantee informative pluralism and free access to information."

The new constitutional text must guarantee freedom of expression without limit, direction, nor prior censorship; professional secrecy and the right to access public information.

The bill of law to modify the Law on Protection of Personal Data, No. 19.628, submitted by the government at the beginning of January 2012, excludes the exercise of journalism and freedom of expression.

The bill, which continues in consideration in the National Congress, considers the need for express, prior consent for the delivery of personal data, and furthermore establishes certain circumstances in which this consent would not be necessary, such as urgent measures, criminal investigations or statistical studies. However, this list does not include journalistic investigation, leaving news reporting subject to legislation on the protection of personal data.

In the framework of this regulation, the media could eventually find themselves obligated to eliminate information, possibly being converted into a tool to make investigation or publication of incorrect or illegal conduct difficult, or prevent the dissemination or discussion of matters of public interest.

The Ministry of Economy, Development, and Tourism is writing up a new bill to modify law 19.628 on protection of personal data, which, in its preliminary text, expressly considers that "the regimen of protection of personal data which is established in this law would not be applicable to treatment of personal data in the exercise of the freedom to issue opinion or to inform, which will be regulated by the law referred to by article 19 No. 12 of the Constitution of the Republic."

After consideration for seven years, on January 20, 2015 Parliament passed the Law on Development of Chilean Music which, under the pretext of encouraging national music, establishes the obligation of radio stations to dedicate at least 20% of their programming to the dissemination of national artists.

According to the bill passed, that percentage could only be covered by the broadcast of music—excluding, for example, interviews—and in certain time slots, which implies direct intervention in the editorial and programming line of a media outlet. Furthermore, the law calls for its immediate implementation, eliminating the prior provision of the bill that recommended setting a period of at least two years for radio stations to adjust their programming.

Once the law has been promulgated, radio stations would not only be obligated to change their programming immediately, but they must do so exclusively in the direction and reach that the legislation imposes, without considering the freedom that the media have to set their own programming, editorial line, and, certainly, to exercise their right to exploit their media.

In regard to this law, it must be pointed out that on Thursday, January 8, 2015, in the Commission on Culture and the Arts of the Chamber of Deputies, a first reading was approved of modifications to the Law on Development of Chilean Music, to establish requirements that must be met by concerts and musical events put on in the country.

It is also established that international shows or concerts must contract Chilean stage hands; otherwise, they will have to pay the VAT without taking advantage of the tax exemption. In addition, the bill establishes that, by not complying with this requirement, they may be subject to a fine that would vary from 0 to 100 UTM.

In October 2014 the Ministry of Health held a public consultation concerning regulation of law 20.606 on the labeling of foods; however, at this date the results of the consultation have not been made public, nor has there been any information made available about the reception of comments from food and beverage associations or from private citizens. The Ministry of Health has indicated that adjustments are being made to the regulations, which will go into effect in June of this year.

The final wording of the regulation is relevant, since it could establish restrictions and limits on advertising of said foods, as is being reported, negatively impacting freedom of expression, since the sale of advertising and publicity is one of the primary means of financing the communications media.