A/HRC/41/35/Add.1
appreciate the elimination of the control over media content exercised by the
Superintendency of Information and Communications (the State’s former content
regulator), the repeal of a series of restrictive provisions on freedom of the press and
expression, the barring of indirect measures or mechanisms that may affect this right, and
the prohibition of all prior censorship, as well as the establishment of media self-regulation
to handle issues of journalistic ethics.
20.
Despite these advances, some provisions in the new law warrant reservations under
international standards. The Special Rapporteurs note that articles 16 and 17 amend articles
23 and 24 of the original law, granting the rights of correction and of reply to any person
affected by media publications. The text adopted provides for the broad and unrestricted
exercise of those rights, such that journalists and the media are not in a position to
understand their scope and content for the purpose of determining when it is proper to
invoke them. In addition, the adopted text essentially maintains article 42 of the 2013 text,
which imposes mandatory qualification requirements. The Special Rapporteurs urge the
State to take a functional approach to the protection of the practice of journalism and to
remove any restrictions on such practice.
21.
Furthermore, article 89, relating to article 108 of the 2013 text, establishes the
modalities for the allocation of frequencies as follows: (a) direct allocation of frequencies
for public media, only when available frequencies are requested; (b) competitive public
process for private and community media when the demand for access to frequencies is
greater than the availability. On this point, the Special Rapporteurs underline that the State
must regulate this provision according to the international standards in the field and
respecting the reservation of the spectrum in order to ensure access to community media.
22.
The Special Rapporteurs recall that the allocation of frequencies must be guided by
democratic criteria and pre-established, public and transparent procedures that can check
the potential arbitrariness of the State and guarantee equal opportunities for all persons and
sectors concerned.
23.
In addition, the eighth transitional provision establishes an automatic renewal of
radio and television frequency concessions granted under the law prior to its reform, subject
to technical and legal reports from the regulatory authority. The aforementioned provision
was cause for concern and rejection by the Coalición de Comunicación Comunitaria y
Medios Comunitarios. In order to ensure a transparent and fair process, the Special
Rapporteurs urge the State to refrain from using a process whereby current frequencies are
automatically renewed. Finally, the Special Rapporteurs welcome the addition of article 42
(1), on the protection of media workers. However, they note that the article contains a
general formula that requires robust implementation and the provision of resources by other
levels of government.
24.
The Special Rapporteurs take note that the President presented his partial objection
to the bill approved by the National Assembly last December and exercised his power to
veto articles 1, 8, 14, 23, 25, 32, 36 to 39, 41, 66, 69, 71, 77, 79, 82, 87 to 89 and 93, the
third, fifth, sixth and eighth transitional provisions, and the repealing provision. They
proposed modifications to several of the provisions above in the communication sent to the
authorities in January 2019. The President also referred to the legislative branch a bill to
amend article 5 of the law, which had not been modified in the amendments approved by
the National Assembly, maintaining the concept of communications as a public service.
However, several civil society organizations expressed reservations about some of the
solutions presented by the President.
2.
Penal code
25.
The Special Rapporteurs received information on the prosecution of journalists,
media outlets and citizens by public officials on the basis of charges such as criminal
defamation. According to information received during the visits, such prosecution is due to
the vagueness of the provisions contained in the new Comprehensive Criminal Code,
enacted in 2014. The Special Rapporteurs note that while the Code reflects substantial
progress by decriminalizing “crimes of contempt” and eliminating the offence of criminal
insult, it still criminalizes slander, with a formulation that is incompatible with international
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