Nicaragua's New Media Law: Freedom and Social Responsibility
"This [media law] is technically superior to earlier laws. It broadens journalistic practice, and grants rights that did not exist before."
—Edwin Yllescas Salinas, assistant director of La Crónica and member of the Democratic Conservative Party, in an interview with envío on June 6.
In accordance with the Esquipulas IV accords signed in El Salvador February 14, and within the 90-day period stipulated, Nicaragua's National Assembly passed a new media law on April 21. Last month envío detailed the newly reformed electoral law—also part of the Salvador agreement. This month we look at the media law, which most observers agree is an advance for the communications media in Nicaragua.
What was the old media law? The first media law, drafted by the revolutionary government just two months after the triumph, outlined both responsibilities and rights of Nicaraguan media. However, as Lili Soto Vásquez, current president of the Nicaraguan Journalists' Union (UPN), recently told envío, "the law didn't even imagine the possibility of war." Thus, as the war intensified, special regulations restricting both military and economic news were passed. The administration of these wartime regulations was shifted to a section of the Ministry of the Interior (MINT).
The old law was not a comprehensive piece of legislation, but rather a mishmash of regulations passed over time to deal with the pressing situation of the war and economic aggression. In addition, much of the media law was never applied because of the State of Emergency in place from 1982 to 1988. As in most countries at war, the constitutional right to free expression was suspended and censorship was imposed under the State of Emergency.
In January 1988, despite the continuing war, President Ortega lifted the State of Emergency as part of the agreements reached at the Esquipulas III summit meeting in San José, Costa Rica. In
fact, censorship had not been enforced since October 1987, four months earlier. At the height of the contra war, between 1984 and 1987, the government censored all newspapers and news broadcasts, although this was substantially relaxed during the 1984 electoral campaign. News programming on the strongly anti-government Radio Católica was prohibited and the opposition daily La Prensa was closed from June 1986 to October 1987. Since then, there has been no censorship, and closings have been temporary and in direct response to violations of national security.
When the State of Emergency was lifted, the constitutional right to free expression was restored and many of the regulations passed in previous years were used again. The 1987 Constitution guarantees the following:
* Nicaraguans have the right to true information;
* freedom of information should be in the interests of the majority;
* no economic or foreign monopolies of media sources are permitted;
* no censorship is allowed.
After the February presidential summit, the executive, with recommendations from the UPN, drafted a new law. It took into account the Constitution, existing regulations, media laws of other countries and the previous nine years of experience in Nicaragua. It also incorporated many of the ideas expressed in bilateral meetings between President Ortega and many of the opposition political parties. The draft law was debated by the National Assembly and modified (including omitting penalties such as fines and confiscations) before being approved on April 21.
What is the new law?The new media law addresses three fundamental areas of social communication: a theoretical framework of what social communications entails, potential infractions and resulting penalties, and licensing procedures.
The media law creates two bodies to deal with issues of media and social communication. The first, the National Communications Commission, is made up of delegates from various media fields. Its functions include advising on how to apply the law, promoting culture and education about media, and improving access to information. In addition to government representatives, the 12 delegates include two representatives of owners/directors of media, two people working in the media field, and two "listeners, readers, or spectators," as well as two representatives from the Atlantic Coast. The Atlantic Coast received two positions in part to ensure the rights of its population to participation as guaranteed in the autonomy process, and also because the Atlantic Coast is isolated geographically, making it difficult for national television or radio to reach. It is especially necessary for the people on the coast to be able to develop their own media. By placing on the commission both those who disseminate information and those who receive it, the law attempts to encourage active popular participation at all levels of social communication.
The formation of the National Communications Commission, and the broad representation of all participants in the media process, has been considered a great advance, especially by the UPN. While there are advisory commissions in the rest of Central America as well, their composition is far less heterogeneous and consists mostly of government agencies or media outlets. Nicaragua's commission, with government representatives, media directors and workers and media consumers, offers a broad structure within which people's views can be heard.
The second body is the Communications Directorate within the Ministry of the Interior (MINT). Its functions include dealing with licensing, registering and authorizing new media, and dealing with infractions and sanctions.
In a recommendation to the National Assembly, the UPN suggested that the National Communications Commission be given decision- making power as well as consultative status. Its hope was that this body of broad representation would become the final authority on all media disputes. In its approved draft, the National Assembly gave final authority to the Directorate within the MINT, leaving the commission with consultative authority only. While few organizations support the MINT having full and final judgment, they also recognize that this authority is strictly limited to temporary suspensions, meaning that in practice the law guarantees extensive liberties. Luis Sánchez Sancho, a member of the Association of Independent Nicaraguan Journalists (APN), an opposition union, told envío, "Personally, I don't think that there will be problems before the elections. The government will work with the commission."
How the Media Law WorksIndividuals or organizations that feel they have been misrepresented in the media can go directly to the outlet concerned and demand a clarification. If the outlet refuses, the individual has the right to go to the MINT's Communications Directorate. The Directorate reviews the case and, if it deems the individual's complaint to be legitimate, issues the appropriate measure to the media outlet. Suspensions can only be issued if the media refuses to publish the clarification or correction, if there are repeated violations, or if the outlet violates authorized technical parameters (in the area of air waves for radios, for example).
The media has the right to appeal any penalty, and the penalty itself is suspended during the review. One of the main criticisms of the law is that the same Communications Directorate carries out the review, leading some to say that the MINT has too much power over the media.
The possible infractions addressed by the law include: alteration of official government texts; refusal to publish public interest announcements; publishing injurious, defamatory or false information; publishing of transmissions against state security, national integrity, peace and public order; and altering of authorized technical parameters. Any individual, group or government body can demand clarifications of any of the above.
While its creators view the media law as primarily a law to give a general framework for the healthy development of social communication, it does also address the issue of infractions and resulting penalties. The penalties for breaking media regulations are limited to publishing clarifications and corrections, receiving warnings and, as a maximum penalty, being closed for no more than three days or editions. This compares very favorably to the situation in Nicaragua both during the Somoza dictatorship and during the height of the contra war. It is particularly noteworthy in that the law is being implemented while the contra war still drags on. Few, if any, countries liberalize their media laws in the midst of a continuing military, economic and political war.
In the Rest of Central America The Nicaraguan law is far more liberal regarding infractions and penalties than its Central American counterparts. The law's most serious penalty is a temporary suspension for up to three days or editions. Unlike in Costa Rica, the government may not permanently close any media outlet, nor may it imprison anyone for infractions of the law. There is no censorship and no fines may be levied against the media. Another important guarantee now put into law is that no journalist may be forced to reveal her or his sources.
In Guatemala, Costa Rica and El Salvador, penalties for violations of media laws include imprisonment. In Costa Rica, transmissions against state security and national integrity are considered treason. Other penalties for breaking media regulations include fines, closings and confiscations. El Salvador and Honduras have similar laws (see box below). But the laws on the books don't tell the whole story about restrictions on the media.
In Guatemala, in the four years of Vinicio Cerezo's presidency, labeled as "democratic" by the Reagan and Bush administrations, two television news programs have been closed because of pressure on the networks by the Guatemalan military. Epoca, a weekly magazine, was forced to close when its offices were bombed and destroyed beyond repair. Two foreign journalists, one from the Latin American Press Agency and one from the Soviet TASS press agency, both left Guatemala after death threats. Both veiled and public threats and accusations continue against the two primary newspapers in the country.
The situation of journalists in El Salvador was highlighted on election day last March when three journalists, two Salvadoran and one Dutch, were killed while covering the elections. According to SalPress, a Salvadoran press agency with offices in Nicaragua, the wife of one of the murdered Salvadorans has been threatened by the Air Force to keep her from pursuing the case. On June 6 a journalism student in San Salvador was detained on suspicion of being a "subversive." In addition, during the most recent transport strike, Salvadoran press have accused the police of traveling in plainclothes and with "TV" posted on their cars, posing as journalists to travel through the city.
In every Central American country, the Interior Ministry or its equivalent administers the respective media laws. In Honduras, the military General Staff has a legislated role in dealing with media sanctions, and in Guatemala, there is no right to appeal the judgments of the Interior Ministry. In El Salvador, the Communications Advisory Council is dominated by the military, made up of representatives from the Interior Ministry, the Defense Ministry and Public Security, as well as one representative of the National Communications Association (ANTEL).
Main Criticisms of the LawLimiting penalties, broadening media's mandate and guaranteeing a press free of censorship have been noted as advances for Nicaraguan, and Central American, journalism. The media law has been the focus of only two major criticisms—one regarding the use of the MINT as the final authority in media disputes, and the other, that television remains in the hands of the state.
The UPN proposed placing final authority (through appeals) with the civilian National Communications Commission rather than with the MINT. This was not approved. The opposition Nicaraguan Independent Journalists Association (APN) has also criticized this difference between the proposed law and the approved law. "The liberty guaranteed by the Constitution should not be regulated," stated Luis Sánchez Sancho of the APN, "especially when the regulating is in the hands of the repressive MINT."
These criticisms must be weighed against the actual extent of authority given to the MINT under the law, especially in comparison to other Central American countries. If one considers the media law as one that defines the relationship of media to the state, it is clear that, while the MINT exercises final authority, that authority is within strict boundaries. In the other Central American countries, as has already been shown, the government has more extensive rights and abilities to punish media. In addition, in each of the other Central American countries the same Interior Ministry (in Costa Rica called the Ministry of Government) is in charge of infractions and
penalties. While Nicaragua's MINT can indeed penalize a media outlet for publishing information against state security, it cannot close down or confiscate, as in the rest of Central America.
The issue of state control of television has been hotly debated in Nicaragua. Many opposition politicians claim that with both of Nicaragua's two channels being state owned, the government has virtual control over information received by the people. To put this in context, it must be added that there are many opposition radio stations operating in Nicaragua and three contra radio stations. Areas of northern Nicaragua receive Honduran television more easily than Nicaraguan stations, and southern Nicaragua watches almost exclusively Costa Rican television. Thus, both from within Nicaragua because of the radio stations and from outside of Nicaragua through neighboring TV stations, the Nicaraguan people do receive a broad spectrum of information. In addition, with the exception of major cities, the population relies on battery-operated radios, not TV.
This does not, however, resolve the question of state monopoly of television in Nicaragua. Supporters of the statute point out that the government, as the guarantor of people's participation in media, can best assure that all people are able to express their views on television, while if there was a private channel it would be dominated by private, wealthy interests. The opposition argues that the constitutional guarantee against economic monopoly of media includes state monopolies, and thus the prohibition on independent television is unconstitutional. The electoral law, approved in early April, guarantees 30 minutes of television and 45 minutes of radio time daily for campaigning to be equally divided among all parties participating in the elections.
Within a month of its passage in the National Assembly, the APN appealed the new media law to the Supreme Court, claiming that it was unconstitutional. The appeal claims both that the very nature of the media law is unconstitutional, and that specific aspects are unconstitutional, namely those of state control of television and final authority of the MINT. According to Luis Sánchez, "Regulations on freedom of expression limit the constitutional principles that freedom is unrestricted. A government body is needed for technical and administrative aspects of the law, but freedom itself should not be regulated." The appeal has been accepted by the court, and is currently being processed. The law itself will continue to be valid provisionally while the appeal is being reviewed.
Sánchez's philosophical stance that freedom of expression is an absolute, which should not be fettered by notions of social responsibility, is a classic one in many capitalist societies. It thus challenges the very essence of the role of media envisioned by the Nicaraguan revolution. "The media law should develop the potential of media, not sanction it," noted Josefina Ramos, director of the National Assembly Committees, who helped formulate the law put before the National Assembly. The law clearly outlines a framework for media's social role: "Social communications media are at the service of education, culture, health and the development of the Nicaraguan people. The media should contribute, through objective, broad and responsible information, to strengthen peace, international harmony, the promotion of human rights, the struggle against war, racism and any type of discrimination."
Women in mediaIn part because the media's social role is emphasized, the new law includes a statute prohibiting the use of women as either sexual or commercial objects in media. The statute goes far beyond any found in US media regarding the responsibilities of media toward women.
The debate over the use of women as sexual or commercial objects in the media has been a heated one in Nicaragua. For some, social responsibility should not be legislated. For others, legislation is part of a long struggle to change a sexist society. The legislation is very clear on women’s' rights: "Communications media have the obligation to emphasize women's participation and action; to respect their dignity, and to not use them as commercial or sexual objects."
As Ramos is quick to point out, however, legislation is just the first step. "If a newspaper prints pictures of semi-naked women and justifies it by saying, 'I have to sell papers,' and there is no action taken to demand fulfillment of the law, it remains a controversial issue.... The law exists, but the peoples' willingness to enforce it is not there yet." The law makes it quite clear that using semi-naked women to sell papers is illegal, but someone has to bring the charge. "The law demands action on the part of citizens to make their demands. The government can do it too, but let's remember that the government is made up of individual men and women, many of whom are not progressive on this point."
The debate around the legislation on women came into sharp focus in March 1988 when Semana Cómica, a satirical weekly linked to the Sandinista paper Barricada, was suspended for five weeks after publishing an offensive photograph of a woman referring to International Women's Day. AMNLAE, the Nicaraguan Women's Association, lobbied the MINT Media Directorate to penalize the magazine under the existing legislation. When Semana Cómica received the suspension, the daily paper El Nuevo Diario republished the photo with the caption, "Pornography? You be the judge." It received a three-day suspension.
The suspensions sparked debate about the legislation. While AMNLAE argued that the law needed to be enforced in order to help break down existing machista attitudes in society, others argued
that there is no harm in publishing such material. "There is still a hard struggle going on," Lili Soto of UPN told envío. "The outcome depends on our own actions in facing the machismo existing in all society. We need to raise the cultural level, work towards the development of society."
More recently Nicaragua has been rocked by a series of beauty contests, some sponsored by hotels or other businesses, and some by the Sandinista Youth (see "In Brief," in last month's envío). "It's one thing for women and men to be judged on physical and spiritual beauty, though the standard is always in question," Ramos told envío. "But it's another thing to use human beings as objects, whether men or women. What does a woman have to do with selling a tire, or a truck, or plywood? Women have always been used as objects, and that's what concerns me, what we have to address both through legislation and in other ways."
Media and Popular ParticipationA second theoretical framework, in addition to that of broad journalistic responsibility, is the right of all people to participate in the media process, not just as listeners but also as creators of information. Article 68 of the Constitution states that the people are primary actors in social communication. The new law guarantees this access first by prohibiting economic monopolies of media sources and second by creating the National Communications Commission to advise on media issues.
The National Communications Commission is a new forum within which to encourage people's participation in media. It is currently in the formative stages, and its actual ability to involve all levels of society remains to be seen. Nicaragua does have a good track record with its previous attempts at creating new forms of social communication: Contact 620, a government radio call-in program, has been a model of attempts to encourage participation in media. People call up with requests ranging from fixing a bad water supply for the neighborhood to reporting stolen vehicles. De Cara al Pueblo, where government leaders meet for hours with various sectors of the population to hear their views, are usually broadcast live on radio and later edited for television, further expanding people's participation in the social communication process. Radio Sandino, the national FSLN station, has carried a prime-time half-hour radio program in Miskito and Sumo for nine years.
Ramos explained that much of the law is based on concepts of media responsibility outlined in international forums such as the UN, UNESCO, the Non-Aligned Movement and Conferences on the New World Order. These forums call on media to be true, responsible and objective, and to publish information within both an historic and a current context.
The School of Journalism at the Central American University recently held a three-day forum on radio. Among the topics discussed was that of popular participation. Bayardo Arce, deputy coordinator of the FSLN's executive committee and himself a former journalist, told the gathered students, "[Radio should not only] open microphones to the people, [but should] raise the cultural, political and scientific level of the people... The great challenge is to find and use methods attractive to the listener and combine them with educational messages." Arce thus touched on an important debate in media—that of social responsibility vs. pure freedom of expression.
More than Just RegulationsInterested parties from all shades of the Nicaraguan political spectrum agree that the new media law is much more than just a series of regulations and sanctions for the media. "The new law creates a general framework for communication, a broad framework that is superior to the earlier law," Dr. Edwin Yllescas Salinas, assistant director of La Crónica, told envío. "It addresses the current social reality of our country in a conceptual way." The appeal brought by the APN and currently under review challenges that framework, and the debate will surely continue within Nicaragua, no matter the result of the appeal.
US Censorship: Wartime, and Peacetime World War I When President Woodrow Wilson asked Congress to declare war on Germany in 1917, he warned that "disloyalty" would be met with "a firm hand of stern repression." Although the United States faced neither imminent threat to its own territory nor significant pro-German internal opposition, Wilson claimed "the masters of Germany" were using liberals, labor leaders and socialists to "carry out their designs." He created the Committee on Public Information to whip up war fever, and the propaganda activities of that organization were unmatched, says historian Arthur Ekrich, Jr., "until the rise of totalitarian dictatorships after the war."
With Wilson's full support, Congress passed the Espionage Act of 1917, providing stiff fines and jail terms of up to 20 years for anyone "willfully" making false statements intended to "interfere with the operation or success of the military or naval forces or to promote the success" of the enemy; causing or attempting to cause "insubordination, disloyalty, mutiny or refusal of duty" in the armed forces or obstructing recruitment or enlistment. The bill also empowered the Post Office to ban from the mail any material violating the act or "advocating or urging treason, insurrection or resistance to any law."
Congress further strengthened this repressive legislation in 1918, passing the Sedition Act, which outlawed virtually all criticism of the government or its war policies and banned publication of "disloyal, profane, scurrilous or abusive language about the form of government of the US," its constitution, or its armed forces, or any expression bringing these institutions into "contempt, scorn, contumely or disrepute." One can imagine the outcry if the Sandinistas proposed such Draconian legislation. (Taken from “Civil Liberties at War," by Karl Bermann, in Nicaraguan Perspectives, Spring 1987.)
Peacetime Information RestrictionsRestrictions on information in the United States are not, however, limited to wartime. Current restrictions are found in a variety of laws, rather than in one comprehensive media law. One of the clearest restrictions was tested in the Supreme Court in 1972 when Earl Caldwell, a black reporter for The New York Times, was ordered by the courts to give up information on certain contacts he had within the Black Panther movement. He refused, and the case went to the Supreme Court, where the Court decided 5-4 that journalists do not have first amendment rights when called before a grand jury. Since then, many journalists have chosen to go to jail rather than be forced to reveal their sources.
The Intelligence Identities Protection Act, passed in 1981, and the Immigration and Nationalities Act of 1952 are two laws that restrict the US public's access to information. The Immigration Act, also known as the McCarren Act, gives the US Attorney General the right to deny a US visa to any person whose views present a "clear and present danger" to the national security. This act was tested and upheld in 1972 when the Attorney General refused a visa to a Belgian with known Trotskyist views, invited to speak at Stanford University. The case eventually went to the Supreme Court, where the majority decided that foreigners do not have first amendment rights of free speech. The Attorney General, of the executive branch, is left with the power to decide when a person's views present a threat to national security and whether to allow that person into the United States.
Within the McCarren Act is a clause specifying that the following class of aliens may be excluded: those who advocate economic, international and government doctrines of communism, or who advocate a totalitarian government. The law prohibits bringing into the US documents advocating the violent overthrow of the US government. For many years periodicals such as The Peking Review could only be brought into the country with a permit and a special stamp clarifying that the periodical did not reflect the views of the US government. Travelers returning from Nicaragua have been interrogated and asked if they are carrying documents advocating the violent overthrow of the US government.
The Intelligence Identities Protection Act attempts to do just what its title says—prevent the release of names of US intelligence officers. The act provides for penalties for anyone whose words or actions give "reason to believe that there is an intent to impede or impair intelligence activities of the United States." The "reason to believe" clause means that very little hard proof of impeding intelligence activities is needed. The law prevented newspapers from printing names of intelligence officers involved in Contragate, even though the names were well known. When the act was being debated, The New York Times hired a law firm to figure out how their rights would be limited by the new law. Currently, if a newspaper names a US intelligence officer, whether from the CIA, the FBI or any other intelligence body, it is liable to prosecution. If a group were to publish the name of an FBI agent found to be infiltrating them, they also would be open to prosecution.
Another existing curb on US citizens is the right of the Attorney General to deny passports and thus international travel. In the case of Philip Agee, a former government employee who was denied a passport, the Supreme Court decided in 1981 that the Attorney General can withhold a passport if a person's travel abroad is deemed to have the potential of "serious damage to national security or foreign policy." The court decided that "freedom to travel abroad is subordinate to national security." In this example as in many other cases in the United States, individual rights are held subordinate to national security.
Comparative study of Central American media Framework for Media
Nicaragua: Media is at the service of education, culture, health and the development of the Nicaraguan people and should contribute, through objective, broad, balanced and responsible information, to strengthen peace, international harmony, promotion of human rights, struggle against war, racism and any type of discrimination.
Guatemala: does not have a media framework
Honduras: does not have a media framework
El Salvador: does not have a media framework
Costa Rica: does not have a media framework
Public Access and Popular ParticipationNicaragua: The government will promote the Nicaraguan people's access to the media, giving space to political parties, government organs, workers, youth, producers, consumers...communities from the Atlantic Coast and the general population.
Guatemala: does not establish any public right of access to media.
Honduras: does not establish any public right of access to media
El Salvador: does not establish any public right of access to media
Costa Rica: does not establish any public right of access to media
Women and Ethnic PeoplesNicaragua: Women cannot be used as commercial or sexual objects. Media should promote the development of customs and languages of the Atlantic Coast communities.
Guatemala: does not address the issue of women or ethnic peoples
Honduras: does not address the issue of women or ethnic peoples
El Salvador: does not address the issue of women or ethnic peoples
Costa Rica: does not address the issue of women or ethnic peoples.
Television Nicaragua: The government has exclusive responsibility for television,...guaranteeing access to each social and political group.
Guatemala: The government is responsible for television and private stations are subject to the media law.
Honduras: The executive branch authorizes the use of airwaves for television. There is state and private television.
El Salvador: Telecommunications are under the control of the National Telecommunications Administration. There is state and private television. Private stations are subject to regulations in accord with government interests.
Costa Rica: Government controls air waves and the Legislative Assembly administers them.
Administration of Media LawNicaragua: Interior Ministry, through Media Directorate.
Guatemala: Interior Ministry. There are no appeals.
Honduras: Military General Staff and Political Office.
El Salvador: Interior Ministry.
Costa Rica: Department of National Control of Radio and Television, of the Ministry of Government (administers police).
PenaltiesNicaragua: Clarification or correction, warnings, temporary closings.
Guatemala: Include arrest, detention and prison.
Honduras: Can include expropriation.
El Salvador: Confiscation, suspension, cancellation, fines.
Costa Rica: Warnings, fines, suspensions, revoking licenses, confiscation. Transmissions against state security, national integrity and peace are considered treason and can result in imprisonment.
Communications CommissionNicaragua: 12-member body.
Guatemala: Advisory Council.
Honduras: No council.
El Salvador: Advisory Council made up of Interior Ministry, Defense, Public Security and ANTEL (National Telecommunications Association).
Costa Rica: Costa Rican Radio and TV Council made up of Police Ministry, Culture Ministry, Education Ministry and one person elected by Culture Ministry.
Source: Office of Legal Counsel, Nicaraguan National Assembly.