Access to public information, officials and public places

1100. 
      On May 2, the Constitutional Division of the Supreme Court of Justice (TSJ) refused a petition for constitutional relief (amparo) filed on May 31, 2013, by the journalist Marieugenia “Maru” Morales Pinto of El Nacional newspaper against the Speaker of the National Assembly, Diosdado Cabello, and the then-Director of Communication and Information of that entity, Ricardo Durán, in order that she be permitted to enter the National Assembly. The journalist lodged the petition for amparo after alleging a violation of her constitutional rights to equality before the law, freedom of expression and communication, and work, as she was prohibited entry from May 21 to May 28, 2013. According to the judgment of the TSJ, Morales said that the prohibition could have to do with an article published on May 7, titled “Nuevas Restricciones a la prensa” (New Press Restrictions) in which the journalist denounced alleged restrictions on the circulation of journalists in the National Assembly, in response to which Durán evidently called her a "political operator of the right to hinder the communication work of the National Assembly.” The Supreme Court ruled the petition inadmissible arguing "improper joinder of claims,” specifying that the respondent government officials held different positions, inasmuch as Diosdado Cabello was considered a senior state official of constitutional rank, while Ricardo Durán did not hold such a rank nor was he in the senior state official category. “[I]t would be for this Division to take cognizance at single instance of the petition for amparo filed against citizen Diosdado Cabello, but not against citizen Ricardo Durán for whom the petition, according to Article 7 of the Organic Law on Protection of Constitutional Rights and Guarantees, bearing in mind that the alleged wrongdoing is imputed to a government official who is not in the senior category, should be heard by a Superior Court for Contentious Administrative Matters in and for the Capital Region.”¹⁷⁷⁸
      

1101. 
      On August 5, the Political and Administrative Division of the Supreme Court of Justice ruled “inadmissible an action in respect of failure to act [recurso de abstencion] brought against the Minister of Popular Power for Health for failure to respond in a timely and adequate manner to a request for information made on October 22, 2012, and reiterated on December 26, 2012, and February 6, 2013.” Civil society organizations such as Espacio Público, Transparencia Venezuela, Acción Solidaria, Programa Venezolana de Educación-Acción en Derechos Humanos (Provea) brought the action on May 21, 2013, after they failed to receive a response regarding recommendations made by the Office of the Comptroller General of the Republic concerning alleged irregularities in the distribution, warehousing, and storage of certain medicines from Cuba. In his decision, the Supreme Court of justice found that petitions such as this one, “intended to obtain information about the activity or proposed activity of the State in order to achieve one of its objectives […] undermine the effectiveness and efficiency that must prevail in the public administration and the government as a whole, since, although everyone is entitled to present petitions to any government agency and receive a timely response, nevertheless, that right may not be abused or exercised in such a way as to prevent the administration’s activities from functioning normally, as it would then have to devote time and human resources to such general requests in order to provide an explanation about the broad range of activities it has to perform for the benefit of the community at large, and moreover the presentation of actions in respect of failure to act would needlessly burden the justice administration system. The Supreme Court also said that information of the kind requested “may be found in the annual reports presented by ministers to the National Assembly.” The decision also determined that, in the absence of a law on access to information, “the petitioner must expressly state the reasons for requesting the information and show that what they are requesting is commensurate with the use for which it is intended.”¹⁷⁷⁹
      

1102. 
      Principle 4 of the Declaration of Principles states that “[a]cess to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies”.
      

4. 
   Stigmatizing statements
   

1103. 
      In a press release from the Ministry of People's Power for Communication and Information (Minci) dated May 25, the head of that entity, Delcy Rodríguez, attacked the Spanish newspaper ABC and its Caracas correspondent, Ludmila Vinogradoff. The matter had to do with the publication of an article explaining the reticence about divulging the death certificate of former President Hugo Chavez. The official said that "ABC has a history of over 100 years in the service of fascism, attacking any revolutionary deed ... The new generations must be warned about this lackey of the far right and ABC must be publicly repudiated today and whenever it again attacks Venezuela.” In reference to the journalist, the press release said that “she has a reputation for soap-opera journalism and saying blatant lies about the Bolivarian Revolution.”¹⁷⁸⁰
      

1104. 
      On June 11, the governor of the State of Carabobo and national coordinator of political and electoral strategy of the United Socialist Party of Venezuela (PSUV), Francisco Ameliach, speaking on his radio show, denounced that the director of the newspaper Notitarde, Laurentzi Odriozola, was a possible suspect in an alleged murder plot. During the show, the official broadcast an audio recording of Odriozola purportedly saying that a person should be killed. The official said that he would present the evidence to the Office of the Attorney General. The newspaper's employees issued a release rejecting the accusations and saying that what had happened to the director “looks like yet more pressure from the government clearly designed to intimidate and muzzle the free and independent media, typical of totalitarian regimes.”¹⁷⁸¹ On June 16, the newspaper's workers marched through the streets of Valencia in support of their director and freedom of expression.¹⁷⁸²
      

1105. 
      On July 27, President Nicolás Maduro attacked the owners of the newspapers El Nacional and 2001 after they published information concerning the case of retired Major General Hugo Carvajal, who had been investigated, arrested, and then released in Aruba. The premier said that El Nacional, a “fascist newspaper of the far right, printed barefaced lies” and that its chairman uses and destroys “that legacy of all Venezuelans [the newspaper El Nacional] that Miguel Otero Silva bequeathed us and that he is bent on destroying his work because he does not represent it or have even one iota of the moral, intellectual, and ethical values” of its founder. The president also referred to the “media oligarchy” and added “where will the owner of Bloque de Armas put today's Sunday edition of 2001 after publishing a brazen lie about a Venezuelan.”¹⁷⁸³
      

1106. 
      On August 3, the Minister of Popular Power for Tourism, Andrés Izarra, made disparaging remarks on Twitter about the news editor of El Universal newspaper, Elides Rojas. In various tweets he wrote that the journalist “is a tremendous bootlicker. He wags his tail at each new master,” “He does not quit because he’s too busy taking bribes to censor himself,” and “he only does anything if it’s for money.” The journalists replied, "I am not going to resign because others want me to. Much less at the request of one of the band of thieves. Ask the owners to fire me.”¹⁷⁸⁴
      

1107. 
      In a housing inauguration ceremony and in a national address broadcast on radio and television on September 18, president Nicolás Maduro accused the media outlets who reported on the deaths that occurred at Maracay Central Hospital, including CNN en Español, El Nuevo Herald, NTN24, and others, of “psychological terrorism” and “media terrorism,” among other expressions. The premier referred to CNN En Español as “a hive of untruths and psychological warfare and nonsense about the country”; he called NTN24 “a trash television station” and El Nuevo Herald the “repository of all the lies about Venezuela.” President Maduro called on the organs of justice to take new and bigger national and international steps against those media outlets and to act firmly and severely in "punishing" everyone responsible and “prosecuting terrorism.”¹⁷⁸⁵
      

1108. 
      On October 22, president Nicolás Maduro accused the news agency Reuters of having “declared a campaign to destroy Venezuela” because of its coverage of different issues in the country, among them the deaths at Maracay Central Hospital. “I denounce the Reuters news agency because it is does harm with all its international wires, which go out, reach the hands of experts, create alarm.” The president made a call to unite “the country's forces” against these campaigns.¹⁷⁸⁶
      

1109. 
      On October 30, president Nicolás Maduro says that the Bolivarian National Armed Forces (FANB) were victims of attacks by the press following the publication of two cartoons alluding to a 45-percent pay rise for members of the armed forces that had been agreed upon days earlier. The president referred to the newspaper El Carabobeño, which he described as “a newspaper of the decadent oligarchy of Valencia” and said that “[its owners] I repudiate, I reject them as bandits" and he demanded that they “learn to respect the dignity of the” FANB. He also mentioned a cartoon by Roberto Weil that showed an obese military officer with his pockets stuffed with banknotes, contrasted with small, poor people. About him, he said “that he does the bidding of the worst, darkest groups and factions that hate our country," adding that “he is being investigated by the Office of the Attorney General” for allegedly having “announced that there were going to be funerals in the National Assembly two weeks before the murder”of assemblyman Robert Serra. The cartoon depicted a funeral of rats and had been associated with the murder of deputy Serra, for which he had been dismissed from the newspaper Últimas Noticias.¹⁷⁸⁷
      

1110. 
      According to information received by the IACHR, the speaker of the National Assembly, Diosdado Cabello, makes comments discrediting press workers, members of civil society organizations, and supporters of the opposition on his program Con El Mazo Dando, which is broadcast by the Venezolana de Televisión channel. Thus, for example, in June he mentioned the last names of a number of journalists who he claims benefited from publicity in return for saying positive things about a mayor.¹⁷⁸⁸ On July 31, he said that he would support possible legal action against Sofía Neder and Hernán Lugo Galicia, journalists with El Nacional newspaper, following the publication of an article to do with the case of Hugo Carvajal, a retired Major General of the Bolivarian National Armed Forces, who was investigated, arrested, and subsequently released in Aruba. The newspaper described him as “irresponsible as usual.”¹⁷⁸⁹ He again referred to Lugo Galicia on September 25, when he referred to the apparent dismissals from El Nacional, saying “Oh dear, Hernán Lugo, so much adulation and now you are going to get the boot […] they say that Hernán Lugo is one of those who will be leaving. You’re out!”¹⁷⁹⁰ On October 30, he read a text in which he mentioned members of different Venezuelan NGOs and the journalist Laura Weffer as attending a meeting at Columbia University Institute of Human Rights in the United States to plan “the human rights actions that the NGOs would take against the Bolivarian government in 2015. That is to say, the plans are more unfounded accusations, more lies in the press, more lobbying to pressure other organizations and right-wing governments, more travel, more expense, more money from the imperialists for the NGOs, among the measures to get the conspirator Leopoldo López released.” Cabello called one of the members of these organizations a “gangster of the first order.” The journalist said that she did not belong to any NGOs and that she had not been invited to any event but that if she was, "that is no crime, even if they want to make it look like one.”¹⁷⁹¹ On November 9, Cabello read out information supplied by a “helpful patriot” which alleged that the NGO Espacio Público was denouncing the human rights situation in the country with “hidden interests" and identified its director as “a friend of the fugitives of Venezuelan justice.” Cabello also read other texts sent in by people that criticized the work of persons belonging to other organizations, such as the journalist Mariengracia Chirinos.¹⁷⁹² The following week, Cabello read out new information in which he said that “the NGO Espacio Público is holding meetings with the Twitter users detained by the guarimbas (demonstrators) and representatives of Human Rights Watch. They are advised by someone called Luis de León, who in reality is the fugitive Diego Arria, who is a good friend and cohort of the executive director of Espacio Público, Carlos Correa.”¹⁷⁹³
      

1111. 
      On November 20, the director of the National Telecommunications Commission, (CONATEL) William Castillo, accused El Nacional on Twitter of waging “psychological warfare” following publications by the paper concerning measures adopted by the government against the “economic war.” The official apparently said that the work of the paper “is to breed anxiety among the citizenry, spreading fear and panic.”¹⁷⁹⁴
      

1112. 
      The Office of the Special Rapporteur reiterates the importance of creating a climate of respect and tolerance for all ideas and opinions. The Office of the Special Rapporteur recalls that diversity, pluralism, and respect for the dissemination of all ideas and opinions are essential conditions for the proper functioning of any democratic society. Accordingly, the authorities must contribute decisively to the building of a climate of tolerance and respect in which all people can express their thoughts and opinions without fear of being attacked, punished, or stigmatized for doing so. In addition, the State's duty to create the conditions for all ideas and opinions to be freely disseminated includes the obligation to properly investigate and punish those who use violence to silence journalists or the media.¹⁷⁹⁵ The Office of the Special Rapporteur additionally recalls that freedom of expression must be guaranteed not only with respect to the dissemination of ideas and information that are received favorably or considered inoffensive or indifferent but also in cases of speech that is offensive, shocking, unsettling, unpleasant, or disturbing to the State or to any segment of the population.¹⁷⁹⁶
      

1113. 
      The Office of the Special Rapporteur additionally recalls that public servants have the duty to ensure that their statements do not infringe upon the rights of those who contribute to the public discourse through the expression and dissemination of their thoughts, such as journalists, media outlets, and human rights organizations. They must bear in mind the context in which they express themselves, in order to ensure that their expressions are not, in the words of the Court, “forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute [to] public deliberation through the expression and [dissemination] of their thoughts.”¹⁷⁹⁷
      

5. 
   Subsequent liabilities
   

1114. 
      On March 6, the Judge of the 29th Supervising Court in and for Caracas, Bárbara César Siero, admitted a criminal lawsuit brought by the Speaker of the National Assembly, Diosdado Cabello, against the director, board of directors, and a columnist of the newspaper TalCual, in which he claimed to be a victim of “aggravated defamation” on the part of the newspaper and one of its columnists. The suit was brought against the newspaper's directors Teodoro Petkoff, Manuel Puyana, Francisco Layrisse and Juan Antonio Golía, as well as the columnist Carlos Genatios. The judge also issued precautionary measures against the accused, prohibiting them from leaving the country and ordering them to report in person to the court once a week. The suit reportedly originated from an article by Genatios in which he attributed to Diosdado Cabello the words “if you don't like insecurity, leave,” which the parliamentarian denies. If the court rules against the newspaper and the columnist, the accused could face up to four years in prison and millions in fines.¹⁷⁹⁸ At the date of this writing, the proceedings were ongoing.
      

1115. 
      On October 15, the Civil Cassation Division of the Supreme Court of Justice ordered El Nacional and the journalists Hercilia Garnica and Ibeyise Pacheco to pay a total of 4.5 million bolívares (approximately US$714,000) in moral damages to a medical doctor. The Supreme Court refused the cassation appeals lodged by the accused against a judgment returned on May 15, 2013, by the First Superior Court for Civil, Mercantile, and Traffic-Related Matters of the Judicial District of Metropolitan Caracas. The case originated from articles published in 1991 claiming malpractice on the part of the doctor, which he regarded as a campaign to sully his good name and honor. The Supreme Court also ordered the paper's owner, C.A. Editora El Nacional, to enable the doctor to exercise his right of reply by publishing five communiqués of the doctor's choosing on the front page of one of the publishing company's media outlets, at no cost.¹⁷⁹⁹
      

1116. 
      Principle 10 of the IACHR’s Declaration of Principles establishes that, “[p]rivacy laws should not inhibit or restrict investigation and dissemination of information of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.” Also, principle 11 of the Declaration establishes that, “[p]ublic officials are subject to greater scrutiny by society. Laws that penalize offensive expressions directed at public officials, generally known as ‘desacato laws,’ restrict freedom of expression and the right to information”.
      

1117. 
      Between August 22 and October 15, at least seven people were arrested after expressing their opinions on Twitter and taken to the offices of the Bolivarian National Intelligence Service (Sebin). Inés Margarita González received a summons from the Office of the Attorney General after posting a tweet about the death of the governing party deputy Robert Serra. In her presentation, the 13th Court prosecutor charged her with the offenses of public incitement, violent affront, and insulting a government official, for which she has been in detention since October 8. Six other individuals were arrested after the Speaker of the National Assembly, Diosdado Cabello, accused them on his show Con El Mazo Dando of sending “threatening and mocking messages in connection with the murders of Robert Serra and María Herrera.” The criminal authorities said that the Twitter users were being detained for alleged messages of “public incitement.” According to reports, Ginette Hernández, a humanities student was arrested and charged with computer fraud and spreading public panic and fear for allegedly posting a tweet in which she predicted the death of deputy Serra. Lessy Marcano, Hernández's putative uncle, is accused of the same crimes and using the same account. Leonel Sánchez Camero is under investigation for allegedly hacking the Twitter accounts of Jacqueline Faría, Minister of Communications; Gabriela del Mar Ramírez, the Ombudsperson; and deputy Eduardo Lima. Víctor Ugas was detained for circulating images of deputy Serra's corpse. Abrahan [sic] David Muñoz, an engineering student, was detained for making comments about the death of deputy Serra. Muñoz has since been released. Daniely Benítez, a humanities student, was arrested for alleged association with the account in which the death of deputy Serra was predicted; however, she has been released because of no proof of any connection to the account.¹⁸⁰⁰
      

1118. 
      The IACHR notes that Inter-American case law and doctrine on this matter¹⁸⁰¹ provides that the imposition of penalties for abusing freedom of expression in keeping with the charge of inciting violence (understood as inciting commission of crimes, breach of public order or national security) is to be based on current, reliable, objective and strong evidence that the person was not simply expressing an opinion (no matter how harsh, unjust, or disturbing it may be), rather that the person had the clear intention of committing a crime and there was a current, real, and effective likelihood that he could achieve these objectives. Were this not to be the case, this would mean opening up the possibility of punishing opinions, and any States would be empowered to suppress any critical thought or statement about authorities which, as would be the case with anarchism or opinions that are radically opposed to the established order, questions even the very existence of the established institutions.
      

1119. 
      Furthermore, Inter-American case law and scholarly legal opinion has stipulated that laws establishing limitations on freedom of expression are to be drawn up in the clearest and most exact terms possible, inasmuch as the legal framework must provide legal certainty to citizens.¹⁸⁰² This requirement takes on even greater importance when it is a question of limitations imposed on freedom of expression by criminal law. In this regard, the Inter-American Court of Human Rights has indicated that these kinds of limitations must also meet the strict requirements of the principle of legality, in keeping with Article 9 of the American Convention on Human Rights: “If such restriction or limitations are under criminal law, it is important to observe the strict requirements characteristic of the criminal codification to satisfy the principle of legality.”¹⁸⁰³. The foregoing reveals itself in the need “use strict and unequivocal terms, clearly restricting any punishable behaviors,”¹⁸⁰⁴ which implies “a clear definition of the incriminatory behavior, setting its elements, and defining the behaviors that are not punishable or the illicit behaviors that can be punishable with non-criminal measures.”¹⁸⁰⁵
      

6. 
   Newsprint shortage
   

1120. 
      The Commission was informed that as a result of the newsprint shortage apparently caused by the procedure necessary to request foreign exchange for importing it, at least 10 regional newspapers had ceased circulation and another 31 media outlets had had to publish editions with fewer pages.¹⁸⁰⁶
      

1121. 
      Since August 2013, the following newspapers have temporarily or permanently stopped circulating: Caribe and La Hora (Nueva Esparta State), Versión Final (Zulia State), Los Llanos (Barinas State), Diario de Sucre (Sucre State), Antorcha (Anzoátegui State), El Sol de Maturín (Monagas State), El Guayanés and El Expreso (Bolívar State), and Primera Hora in Caracas.¹⁸⁰⁷
      

1122. 
      On January 15, 2014, Carlos Carmona, the chairman of C.A. El Impulso, which owns the regional newspaper El Impulso, announced that he had been authorized to purchase foreign exchange to buy newsprint paper. However, the newspaper had been compelled to submit another order for paper because the authorization had arrived too late and the ship had sailed before the newspaper could make the order.¹⁸⁰⁸
      

1123. 
      On January 29, the Central Bank of Venezuela issued Notice Of Convocation No. 16-2014 Special Foreign Exchange Auction for Legal Persons, which was intended, among others, for the paper industry.¹⁸⁰⁹ On February 4, the Central Bank suspended the auction, saying that "this decision is due to a series of anomalies and rules violations found in the comprehensive review of the purchase orders submitted.”¹⁸¹⁰
      
1124. 
      The last edition of the daily Notidiario in the State of Delta Amacuro (East) was released on February 10. The paper had already reduced the number of pages per edition and its print run.¹⁸¹¹
      

1125. 
      On February 11, journalists, media workers, representatives of the National Press Workers Union (SNP), members of the National Association of Journalists (CNP), and civil society organizations marched on the headquarters of the National Center for Foreign Trade (Cencoex) in Caracas to demand the allocation of foreign exchange to buy newsprint paper in order to avert the closure of more media outlets. The journalists shouted slogans such as “No Paper, No Jobs.”¹⁸¹²
      

1126. 
      One March 7, the free daily Primera Hora went out of circulation after nine years of existence due to a lack of paper. The newspaper, belonging to C.A. Editora Nacional, which also publishes the daily El Nacional, ceased circulation in order to save paper for El Nacional.¹⁸¹³ On March 20, the magazine EME de mujer, also owned by C.A. Editora Nacional, stopped distribution because of the delay in the approval of foreign exchange for buying printing paper. The magazine announced the decision on social media such as Facebook and Twitter with the message, “Don’t cry girls. We’ll be back!” (¡No lloren chicas, volveremos!).¹⁸¹⁴ El Nacional announced that on January 30, the Central Bank of Venezuela had turned down its application to take part in the auctions of the Supplementary Foreign Exchange Administration System (Sicad) to buy newsprint paper. The paper said it had not been offered any reasons for the denial of its application, even though the auction was open to legal persons in newsprint-related sectors.¹⁸¹⁵
      

1127. 
      On March 19, Cadena Capriles, the group that publishes the newspapers Últimas Noticias; El Mundo Economía y NegociasNegocias, and Líder announced that it had enough paper reserves for another six months. Executives at the organization said that it had not been authorized to buy dollars since October 2013, so it had been forced to make cuts: 20% in numbers of pages and 15% in print runs.¹⁸¹⁶
      

1128. 
      On March 31, Project ‘Todos Somos Venezuela’ (We Are All Venezuela), promoted by the Colombian Association of Newspaper Publishers and Information Media (Andiarios), announced that “52 tons of paper were shipped” for the Venezuelan newspapers El Nacional, El Impulso, and El Nuevo País. Three Colombian journalists, from the Colombian papers Colprensa, El Colombiano and El Tiempo, accompanied the shipment from Zulia to Barquisimeto, and from there to Caracas. Reporters with El Impulso, El Nacional and Regional de Zulia, in Venezuela, also traveled with the shipment.¹⁸¹⁷ On April 2, the Bolivarian National Guard (GNB) detained the first of the trucks carrying the paper at the border for a number of hours before refusing it entry to the country. The truck spent the night at the border and on April 3 the formalities to enter Venezuela resumed.¹⁸¹⁸ By the end of the day the shipment had been let in and was taken to the village of Guarero, Zulia State, where the official procedures began for the paper's nationalization.¹⁸¹⁹ On April 9, Andiarios announced that the customs procedures for the nationalization of the 52 tons of paper had been completed as normal, which meant that on April 10 the paper was able to go from Guarero to Barquisimeto in Lara State and Caracas.¹⁸²⁰ On April 10, the rolls of paper were delivered to El Impulso in Barquisimeto and El Nacional and El Nuevo País in Caracas.¹⁸²¹ On May 21, Andiarios announced a new loan of 62 tons of paper for El Impulso that was supposed to arrive that week.¹⁸²²
      

1129. 
      On May 5, El Universal declared itself “in an emergency” owing to a lack of newsprint paper caused by a delay in the authorization of a foreign exchange purchase by the National Center for Foreign Trade (Cencoex), which prevented a shipment of paper belonging to the newspaper from being nationalized. Faced with this situation, the paper had reduced the size of its edition, “leaving parts of its usual sections accessible only on the web and other platforms.”¹⁸²³ On May 9, the newspaper again announced that it was awaiting permission to nationalize 600 tons of paper that was in the port of La Guaira. It said that it only had enough stocks to publish “until between the 15th and 18th of the month.”¹⁸²⁴
      

1130. 
      On May 31, 84 newspapers in cities in the country's interior requested a "private interview" with the Speaker of the National Assembly, Diosdado Cabello, in order to obtain assistance in resolving "the stifling problems with the supply of paper, printing plates, and other essential items for these newspapers." The request was made by a communiqué put out by the Venezuelan Chamber of Newspapers, having "exhausted the regular channels to the executive branch.” The paper said that once, “knowing all the facts,” the situation was resolved, they would be able to “work in piece, without anxiety" about future. In their communiqué, the newspapers said that these newspapers employed “more workers than all of the Caracas newspapers” and had a print run of “more than 2.5 million copies.” ¹⁸²⁵
      

1131. 
      The director of El Nacional, Miguel Henrique Otero, announced on June 5 that they would run out of paper at the end of July. It is.¹⁸²⁶ In July, in other statements, the businessman said that they had enough paper to see them to the end of October thanks to a donation from foreign media outlets.¹⁸²⁷
      

1132. 
      On June 13 the Constitutional Division of the Supreme Court of Justice ruled inadmissible an action for constitutional relief (amparo) brought by representatives of the Christian Social Party (Copei) over the foreign exchange purchase process for buying newsprint paper, alleging violation of the guarantee of the right to freedom of the press, expression, and information. The judicial remedy was presented on February 6 against the Vice President for Economic and Financial Matters of the Council of Ministers and Minister of People's Power for Oil and Mining, Rafael Ramírez; the Ministers of People's Power for Planning, Jorge Giordani; Economy, Finance and State-owned Banks, Rodolfo Marco Torres; and Trade, Dante Rafael Rivas; the President of the Central Bank of Venezuela (BCV), Nelson Merentes; and the President of the National Center for Foreign Trade and the Foreign Exchange Administration Commission (Cadivi), Alejandro Fleming. The petition states that "since we are in the presence of the threat of a direct and immediate violation of the Constitution, we request that it be declared that the control of the foreign exchange policy that impedes access to foreign exchange causes the guarantee of freedom of the press and, therefore, the Venezuelan people's right to freedom of expression, information, and the press to be suspended and creates a de facto state of emergency.” And also, that “as a consequence of the foregoing declaration, the executive branch be ordered to review the foreign exchange system in order to to allow an alternate official control mechanism for the purchase of foreign currency.” In its ruling, the Division found that “it is not clear that the economic policies on foreign exchange matters being implemented by the national executive branch through the competent agencies, in coordination with the Central Bank of Venezuela, undermine or threaten to undermine the right to freedom of expression that this division has so often protected in its various decisions on the subject.”¹⁸²⁸
      

1133. 
      In September, El Impulso in Barquisimeto, Lara State, announced that it would temporarily cease circulation on September 15.¹⁸²⁹ On September 12, the country's oldest newspaper announced the purchase of enough rolls of newsprint to remain in circulation for another week.¹⁸³⁰ In November the newspaper was still in circulation. On September 14, the Minister of Communications and Information, Delcy Rodríguez, reported on her Twitter account that the government had “guaranteed the provision of the paper needed for publication by the newspaper”¹⁸³¹.
      

1134. 
      On October 1, TalCual announced that as of October 2 it would cut its page count to a third during the week and by half at the weekends. In its editorial the paper announced that the Últimas Noticias group had told it that for technical reasons it would not not continue to print and distribute the paper. According to TalCual the new company responsible for that task had enough paper to last until October 23.¹⁸³²
      

1135. 
      During the hearing on the ‘Situation of the Right to Freedom of Expression and Access to Information in Venezuela’, held in the course of the 150th regular session of the IACHR on March 28, 2014,¹⁸³³ the Commission heard with concern information on the persisting newsprint paper shortage problem and its effects on press freedom in Venezuela. According to the civil society organizations that took part in the hearing, the Venezuelan State is arbitrarily using the regular mechanisms for approval and purchase of dollars for paper imports to benefit certain media outlets according to their editorial stance. According to the information provided, as results of this practice around 10 media outlets have gone out of circulation and several others have had to reduce their page count. The paper shortage has also resulted in workers at the newspapers affected being laid off.
      

1136. 
      In that regard, the State said that in Venezuela there are many newspapers that “come and go” and that there were a number of newspapers with labor problems that “want to get rid of employees by claiming that they have economic difficulties.” It added that many paper importers began to speculate with the commodity, “in order to resell it to other newspapers at genuinely usurious prices and that, in that sense, there might be a paper shortage, but what can the State do to prevent capitalism from being capitalism? What can the State do to stop paper importing companies that have taken advantage of the situation from making a great profit at the expense of the smaller media outlets?”
      

1137. 
      Principle 13 of the Declaration of Principles stipulates: “[t]he exercise of power and the use of public funds by the state, the granting of customs duty privileges, the arbitrary and discriminatory placement of official advertising and government loans, the concession of radio and television broadcast frequencies, among others, with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law.”
      

7. 
   Censorship of journalistic material, journalist dismissals and resignations
   

1138. 
      According to information received by the IACHR, tens of journalists were left out of work following the sale of a number of media outlets. These individuals have been dismissed or forced to resign, on occasion, after government officials have made public statements criticizing their work. Other persons have resigned over alleged cases of management censorship of journalistic material. Some incidents have prompted workers at these media outlets to issue public statements or hold protests. The following are some of the reported cases.
      

1139. 
      On February 13, 96 journalists of Cadena Capriles, a group that publishes the newspapers Últimas Noticias; El Mundo, Economía y Negocios; and Líder issued a public communiqué alleging that Últimas Noticias had omitted information gathered by the journalists on the acts of violence that occurred in Caracas on February 12. The newspaper had reportedly changed the front page of the February 13 edition at the last minute, replacing information on the people killed on February 12 as the main headline, with statements by president Nicolás Maduro denouncing a supposed coup d'état against him. The journalists who signed the communiqué wrote: “We, the undersigned journalists of Cadena Capriles, wish publicly to distance ourselves from the editorial position that has been imposed by the owners of this company, who have not even had the courage to show their faces to their employees.” According to the reporters, the front-page switch was an example of the changes that had occurred in Cadena Capriles since its sale in October 2013 to Latam Media Holding, a business group whose editorial stance would seem to coincide with the Venezuelan government's. According to the journalists, the new version “ignored the killings; turned a blind eye to the arrests and disappearances.” This was the second such communiqué by journalists of the Cadena Capriles group. The first came in November 2013, when the journalist Omar Lugo, then director of El Mundo, Economía y Negocios, was terminated for refusing to alter the newspaper's editorial position and limiting its coverage of economic issues.¹⁸³⁴
      

1140. 
      David De Matteis, a Globovisión journalist, was fired on February 26 after the publication of a number of tweets concerning president Nicolás Maduro. According to the journalist, the Minister of People's Power for Communication and Information, Delcy Rodríguez, had disapproved of a number of comments that he had written while covering a press conference on February 21 and, therefore, had put pressure on the channel to let him go. De Matteis said that the channel had admonished him and a few days later told him that it would be dispensing with his services.¹⁸³⁵
      
1141. 
      On March 17, the investigation chief of Cadena Capriles, Tamoa Calzadilla, resigned from the publishing group a day after an apparent censorship by the board of directors, which decided not to publish in one of its newspapers (Últimas Noticias) an investigative piece by the journalist Laura Weffer on the protests in Plaza Altamira in the Municipality of Chacao, Caracas. The report, evidently intended for publication on Sunday, March 16, included interviews with students and citizens leading the protests, as well as members of the Bolivarian National Guard (GNB). Following the resignation, the group's journalists held a meeting to decide what steps to take and began a protest in their offices by hanging signs on their desks that read “Journalism First.” The supposedly censored piece was reportedly published by the National Press Workers Union (SNTP).¹⁸³⁶
      

1142. 
      The Globovisión correspondents for Zulia State, Jesús González and Madelyn Palmar, and for Lara State, Doricer Alvarado, resigned after the technical staff in those cities were dismissed. The correspondents also said that they had been victims of censorship after the channel was sold or that irregularities had occurred when reports on the protests were aired.¹⁸³⁷
      

1143. 
      The journalist Shirley Varnagy had resigned from the station Globovisión on April 30, after this media outlet had allegedly censored part of the interview that the journalist had conducted with the Peruvian winner of the Nobel Prize for Literature, Mario Vargas Llosa. As reported by the journalist, her decision to resign had been taken after noticing that, during the broadcasting of the interview, certain parts of it had been censored, especially the question on his point of view about former President Hugo Chávez. The journalist had also said that, since the interview on April 24, the station had set obstacles to broadcasting the interview. The journalist and other media had published the entire interview.¹⁸³⁸
      

1144. 
      On April 2, Reimy Chávez Perche, a presenter and journalist at Noticias Globovisión, tendered his resignation during a live broadcast, citing “reasons beyond my control and differences of opinion.” During the commercial break and before the news broadcast had finished, security guards removed him from the premises and prevented him from entering the management's offices to formally tender his resignation. The journalist said that he had not been physically mistreated.¹⁸³⁹ Subsequently, Vanessa Ugueto, a journalist and producer at the station, was dismissed for allegedly posting a tweet expressing her solidarity with Chávez Perche and the correspondents who had resigned during the preceding days ovber alleged censorship at the station.¹⁸⁴⁰
      

1145. 
      On May 30, the journalist Lisseth Boon, from the daily newspaper Últimas Noticias, had reported on her Twitter account that, before resigning from the newspaper, she had written a story that had been censored. In her story entitled ‘La canasta alimentaria se compra en más de 3 días (It takes more than three days to buy the basket to meet a family’s basic food needs,’ the journalist had explained how difficult it was for families to buy the basic list of foods established by the National Statistics Institute (Instituto Nacional de Estadísticas—INE). This piece of journalism had been scheduled for publication three weeks after the announcement, but to date it has not been published. This is the second story presumably censored by this daily newspaper.¹⁸⁴¹
      

1146. 
      On May 8, Juan Carlos Figueroa, a political reporter for the daily Últimas Noticias, resigned his position, possibly over alleged censorship at the paper. The news was released by the journalist on his Twitter account, in which he wrote, “The censorship at @Unoticias is undeniable. My colleagues go into battle every day. Today was my last. Be strong.”¹⁸⁴²
      

1147. 
      On May 26, the board of the Últimas Noticias group dismissed the journalists Erys Wilf Alvarado and Jován Pulgarín, apparently for reasons to do with news coverage. The former was managing director of the group's only newspaper, while the latter was director of Líder, a sports paper owned by the group. According to Pulgarín, he was informed by the board that they disapproved of the sports paper's coverage of the South American Beach Games and, therefore, were dispensing with his services. The group's photojournalism and audiovisual director, Carmen Riera, reportedly resigned in repudiation of what she regarded as an arbitrary dismissal for reasons of news coverage. Following the dismissal, the employees gathered at a meeting where they were informed of the situation.¹⁸⁴³ The previous day, president Maduro had expressed his disapproval with the media's coverage of the games on his Twitter account.¹⁸⁴⁴
      

1148. 
      The National Press Workers Union (SNTP) denounce the dismissal of four journalists from El Nacional newspaper According to the SNTP, using the need to restructure the newspaper as a pretext, Ronna Risquez, the chief of politics, events and regions; and the coordinators Raquel Seijas, Luis Martínez and Eliberth Edardo were offered double severances in return for signing letters of resignation. According to the SNTP the offer was also made to 40 other journalists.¹⁸⁴⁵
      

1149. 
      On June 9, executives of the media group Últimas Noticias had withdrawn the weekly column written by the economist and university professor José Guerra from its daily newspaper Últimas Noticias. As reported by the columnist, they had called to advise him that, as a result of executive orders, he would not write again, but that the decision would be transmitted to him formally in the next few days. The columnist used to critically address specific situations of Venezuela’s economy and it seems that his last two columns had been especially critical.¹⁸⁴⁶
      
1150. 
      On June 10, executives of the private station Televen had ordered that Luis Chataing’s political opinion and humor program, ‘Chataing TV,’ be taken off the air. According to the information that was received, the journalist had been preparing for that night’s program when they had announced that decision, which included not broadcasting the program that day. According to the journalist, it involved “pressure” from outside the station, forcing it to take this decision, which he had heard about weeks before.¹⁸⁴⁷
      

1151. 
      Hecmiry Lugo, a journalist with the Dat TV channel, announced that she was quitting the channel on July 10 after she was forbidden to interview María Corina Machado, an opposition leader. The journalist had apparently wanted to interview Machado for the program Dos visiones, Un país (Two Visions, One Country) which goes out on Sunday evenings, to which the channel had thrown up a lot of obstacles. Later she learned that there were orders from the channel that the interview should not go ahead and after a meeting with representatives of the channel she was informed that she had already been replaced. “They practically told me to get out,” she said.¹⁸⁴⁸
      

1152. 
      Articles in the Más Vida section of Últimas Noticias were allegedly censored or had information changed on at least three occasions in July. That section, which reports on problems in communities, was one of the most affected in the newspaper. According to information provided to the IACHR, the journalists that work on that section were invited to resign.¹⁸⁴⁹
      

1153. 
      The IACHR received information about the departure from El Universal newspaper of at least 26 op-ed writers after denouncing censorship by the newspapers new management. According to the information, some of the writers had decided to stop writing for the newspaper after they refused to publish their pieces or they were prohibited from talking about a particular issue.¹⁸⁵⁰ On August 5, the paper reported in an editorial that over the previous days there had “been a series of problems” in that section connected with “introduction of new rules on the treatment of articles" as well as with “returning to the style manual.” Therefore, it said that the paper had decided not to publish those articles which, it said, "are not in keeping with the well-established and known code of ethics.”¹⁸⁵¹ The sale of El Universal to the Spanish group Epalisticia for €90 million (approximately US$123 million) was made official on July 4. At 105 years old, the newspaper is one of the country’s oldest and among the last opposition media outlets in Venezuela. Its new president, Jesús Abreu Anselmi, allegedly announced that he would not alter the paper's editorial position, that no one would lose their job, and that the company had no links to the government¹⁸⁵². May 2013 saw the sale of Globovisión, while the Últimas Noticias group was sold in October.¹⁸⁵³
      
1154. 
      On August 15, Ramsés Siverio, El Universal’s correspondent in Bolivar state, said that he had been censored by the newspaper it had apparently decided not to publish a piece on a protest staged by workers at Siderúrgica del Orinoco ‘Alfredo Maneiro’ (Sidor), a steel mill, on August 14. The article had apparently been removed without explanation as the edition went to press and replaced with a piece written by Agencia Venezolana de Noticias (AVN).¹⁸⁵⁴ In response to this incident, the newspaper's employees issued a communiqué on August 17 expressing their “concern at the changes in the guidelines set down for carrying out our work, following the much-publicized change of ownership,” which “culminated” with the suppression of that article.¹⁸⁵⁵
      

1155. 
      On September 17, the cartoonist Rayma Suprani was dismissed by the newspaper El Universal allegedly for publishing a cartoon illustrating the state of the country’s health sector, using the signature of the deceased ex-president, Hugo Chávez, as part of the cartoon. Suprani, who worked at the newspaper for 19 years, announced the news via her Twitter account.¹⁸⁵⁶ The newspaper's journalists reportedly issued a communiqué in which they stated their decision to defend “the avenues for keeping the country informed, despite the growing restrictions and censorship.”¹⁸⁵⁷ On August 3, the cartoonist complained that she had been the victim of censorship by the newspaper El Universal after the cartoon that she had drawn for that day's edition was not published. One of her cartoons from the archive was published in its place. In the allegedly censored cartoon, Suprani had apparently drawn the heroes of the independence movements of Colombia and Venezuela, Francisco José de Paula Santander and Simón Bolívar, respectively, under the title “Greater Colombia” (La Gran Colombia), and below, two figures in Charles Chaplin garb with the faces of the current Venezuelan president, Nicolás Maduro, and his Colombian counterpart, Juan Manuel Santos, under the title “The Great Comedy” (La Gran Comedia). The newspaper tweeted that the journalist had been told that it would be "disrespectful to depict Santos with a pig's face. She had agreed to the change of cartoon.”¹⁸⁵⁸ In its 2013 annual report, the Office of the Special Rapporteur recorded reports of death threats, insults, and denigrating remarks leveled at Suprani. It also took note of an announced lawsuit against the cartoonist by a government official.¹⁸⁵⁹
      

1156. 
      On October 1, security guards at Grupo Últimas Noticias attempted forcibly to evict journalist Odell López, a political writer at Últimas Noticias, after he refused to resign on September 30, despite being requested to do so by the paper's human resources department. In the journalist’s view, the request was connected with support that he had expressed via Twitter for an El Nacional journalist, who had been harassed by the speaker of the National Assembly, Diosdado Cabello, on his television show Con El Mazo Dando.¹⁸⁶⁰ On October 2, the journalist filed a complaint with the prosecutor's office, alleging assault the day before and harassment in the workplace.¹⁸⁶¹ In August, the journalist claimed censorship on the part of the newspaper's director after a report on Venezuela's sovereignty dispute over Guayana Esequiba (the territory it claims from Guyana) was not published.¹⁸⁶² On November 10, the reporter announced his resignation from FM Center, a syndicate of radio stations, after executives put pressure on him to leave following the episode at the offices of Grupo Últimas Noticias. According to the journalist, since that incident, despite continuing to report for FM Center, he had been kept off the air without being offered an explanation. His stories were read out by someone else.¹⁸⁶³
      

1157. 
      On October 6, the Últimas Noticias group dismissed cartoonist Roberto Weil, a contributor to Dominical, Últimas Noticias’ Sunday supplement, because one of his cartoons had allegedly annoyed members of the governing party.¹⁸⁶⁴ The cartoon, published on social networks on October 5 after the newspaper decided to withdrew it from the publication, showed the funeral of a rat, which had been interpreted as alluding to the murder of Robert Serra on October 1. Following its publication, Weil had been verbally abused on social media by government officials and other individuals, including the governor of Aragua, state Tareck El Aissami, who called him “contemptible,” “trash,” and “fascist,” among other insults and. Furthermore, the presidential commissioner for the revolutionary transformation of Greater Caracas, Ernesto Villegas, said that “it would be appropriate to investigate how the photographed copy got out and what ‘inspired’ the artist to draw this 15 days ago.”¹⁸⁶⁵ Weil said that he had submitted the cartoon 15 days earlier, which was the normal procedure for earlier publications. The magazine issued a communiqué saying that the magazine was usually printed two weeks prior to its distribution. The magazine had not been distributed in some cities, while in others it had been circulated without the cartoon.¹⁸⁶⁶
      

1158. 
      An article by journalist Eligio Rojas that was supposed to be published in the October 15 edition of Últimas Noticias was not published without explanation. The piece reported that a suspect in the murder of deputy Robert Serra and his assistant was wounded and in intensive care.¹⁸⁶⁷ An interview by Fabiana Ortega with Patricia Janiot, also a journalist with CNN en Español was also removed. The interview was pulled from the print version but remained available on line. The incident occurred after the Ministry of Popular Power for Communication and Information refused permission for Janiot and her team to work in the country.¹⁸⁶⁸
      

1159. 
      On November 11, Carmen Rosa Gómez, chief of El Universal newspaper’s economics section, and Roberto Deniz, one of the reporters in that section, announced their resignation over alleged pressure from the newspaper's management to censor information. According to Gómez, there had been changes in the paper's coverage of these issues that would result in the alteration of headlines and information, or the non-publication of certain news without notice. Gomez had complained in writing about different incidents on three occasions, the last of them on November 10. Having not received a response, she tendered her resignation. In the case of Deniz, a title and summary of an article had been changed in October, while his last piece, in which one of his sources warned of a profound economic crisis, was removed.¹⁸⁶⁹
      

1160. 
      During the hearing on the ‘Situation of the Right to Freedom of Expression and Access to Information in Venezuela’, held in the framework of the 153rd regular session of the IACHR,¹⁸⁷⁰ The organizations that took part said that the sale of media outlets to new owners –whose identity remains unknown– had led to the exit of large numbers of employees, who had either been dismissed or forced to resign. They said that in the case of Globovisión, following the change of ownership, information and opinion columns had been done away with and at least 60 television workers had been either dismissed or forced to resign. Many of these instances occurred in the context of the demonstrations of February 12 earlier this year. In the case of Grupo Últimas Noticias, they said that after it was bought out, persons with ties to the government and members of the United Socialist Party of Venezuela had been appointed to key posts in the group. They said that in this context, the workers had denounced an escalation of acts that violated the practice of their profession, including censorship of their writings and mistreatment by the owners, resulting in the departure of at least 51 journalists. Meanwhile, the newspaper's investigation unit has also been disbanded. As to the purchase of the newspaper El Universal by a group of Spanish owners, they said that "one of the first decisions of the new management was to restructure the op-ed sections. The company let go 40 article writers who were critical of the government.” The State, for its part, said that Venezuelan law does not prohibit the sale of media outlets and that the government could not block transactions of this type. It emphatically affirmed that "the State can have no part in that and it does not set these media outlets' communication policy.” In that connection, the representative of the State showed critical headlines by the country's main newspapers and affirmed that "no newspaper has been closed down" in Venezuela. He explained that, on the contrary, owing to the importance of private sector advertising, in Venezuela media content continues to be favorable to the business sector opposed to the socialist project.
      

1161. 
      Principle 13 of the Declaration of Principles stipulates: “[t]he exercise of power and the use of public funds by the state, the granting of customs duty privileges, the arbitrary and discriminatory placement of official advertising and government loans, the concession of radio and television broadcast frequencies, among others, with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law.”
      

8. 
   Presidential broadcasts
   

1162. 
      The IACHR learned that during 2014, the Government of Venezuela maintained the practice of using radio and television broadcasts to issue official messages. According to information provided to the Commission since the start of the protests the Venezuelan government has broadcast tens of obligatory programs on radio and television. According to the Cadenómetro project, which is implemented by Monitoreo Ciudadano, an NGO, and keeps statistics on those programs, 25 national addresses were broadcast between February 12 and March 16, 2014, taking up more than 42 hours of airtime, at an average of one hour, 20 minutes a day.¹⁸⁷¹ According to the Cadenómetro project, which is implemented by Monitoreo Ciudadano, an NGO, and keeps statistics on those programs, 31 national addresses were broadcast between February 12 and March 24, 2014, taking up more than 45 hours of airtime, at an average of one hour, 20 minutes a day. According to this organization, from January to April 2014 it was not possible to monitor the airtime of at least 50 national addresses.¹⁸⁷²
      

1163. 
      Instituto Prensa y Sociedad (IPYS) mentioned that, based on its monitoring from January 1 to September 30, the government had made 319 national addresses. This amounted to a total of 8,460 minutes of programming, equivalent to six days of unbroken broadcasting.¹⁸⁷³ The purpose of many of these national addresses was to censor specific news items. It cited as an example of the national address of the night of February 12, when president Nicolás Maduro celebrated the civic-military parade to commemorate the bicentenary of the battle of victory and Youth Day. Meanwhile protests were being held in different cities that resulted in three people killed. Those events were not broadcast by the private, state, or community media. According to the study, during national addresses it is usual to hear references to business groups, trade unions, and business owners waging an “economic war.” The study also said that they are used to discredit and attack those considered critical of the government, including political leaders, dissidents, foreign government officials and embassies, representatives of opposition parties, and the media. Expressions such as “psychological warfare,” “sowing fear and anxiety,” and “economic war” have been recurring themes. According to the IPYS study, journalists and editorial opinions in the media have been discredited, attacked, and threatened with legal action during national addresses. They are constantly accused of manipulating information, of being behind conspiracies against the State, and, in particular, of censoring information; hence the need for the national addresses.¹⁸⁷⁴
      

1164. 
      The report said that the frequency of national addresses peaked in February and March, when the unrest and protests were at their worst. During those months, 45 national addresses were broadcast on radio and television in which language was used that discredited the right to peaceful protest. ¹⁸⁷⁵ Thus, for example, on March 5, president Maduro apparently egged on supporters of the government party against the demonstrators, saying that they should carry out the orders of former president Hugo Chávez that “any flame lit, we snuff out.”¹⁸⁷⁶ Days later, the president clarified that he had been speaking to a “people of peace,” that he meant “any flame lit, we snuff out with heart and mind, with reasons, with empathy, with the truth, as is only proper.”¹⁸⁷⁷
      

1165. 
      The Office of the Special Rapporteur has recognized the authority of the President of the Republic and high-ranking government officials to use the media for purposes of informing the public of prevailing matters of public interest; nevertheless, the exercise of this power is not absolute. The information that governments convey to the public through the presidential broadcasts must be strictly necessary to meet the urgent need for information on issues that are clearly and genuinely in the public interest, and for the length of time strictly necessary for the conveyance of that information. In this respect, both the IACHR and its Office of the Special Rapporteur,¹⁸⁷⁸ as well as some national bodies of States party to the American Convention, applying international standards, have indicated that “not just any information justifies the interruption by the President of the Republic of regularly scheduled programming. Rather, it must be information that could be of interest to the masses by informing them of facts that could be of public significance and that are truly necessary for real citizen participation in public life.”¹⁸⁷⁹ Additionally, the principle 5 of the IACHR’s Declaration of Principles states that: “[p]rior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression”.
      

1166. 
      Public servants must also bear in mind that they have a position as guarantors of the fundamental rights of individuals; as such, their statements cannot deny those rights.¹⁸⁸⁰ This special duty of care is heightened particularly in situations involving social conflict, breaches of the peace, or social or political polarization, precisely because of the risks such situations might pose for specific individuals or groups at a given time.¹⁸⁸¹ The Inter-American Court has also held that situations of risk can be exacerbated if they are “[the subject of government speeches] that may [provoke], suggest actions, or be interpreted by public officials or sectors of the society as instructions, instigations, or any form of authorization or support for the commission of acts that may put at risk or violate the life, personal safety, or other rights of people who exercise […] freedom of expression.”¹⁸⁸²
      

9. 
   Other relevant situations
   

1167. 
      On March 11, president Nicolás Maduro launched his weekly radio show En contacto con Maduro [In Touch with Maduro], which will air every Tuesday at 7 p.m. or “on any other day that we also wake up with a desire to communicate with each other in this way" and sometimes "it will be worthwhile doing it on television" simultaneously. The premier said that it would be an interactive program and would also be transmitted by every available means, including social media "so that the truth about Venezuela can make itself heard.”¹⁸⁸³ On his first program, the premier criticized the national and international press whose owners belonged to the "rancid media oligarchy that wages communicational terrorism against Venezuela" and he defended the need for this program in spite of having access to the media through their channels, because of the program's interactive nature and because it will be accessible to anyone who is not in Venezuela.¹⁸⁸⁴
      

1168. 
      On May 7, officials of the Bolivarian National Intelligence Service (Sebin) detained the president of the human rights NGO Un Mundo sin Mordaza (An Unmuzzled World), Rodrigo Diamanti, at Maiquetía Airport near Caracas. The incident was reported by members of the NGO and other individuals on social media, saying that the arrest was made without a warrant.¹⁸⁸⁵ The arrest was carried out following statements made by the Minister of the Interior, Miguel Rodríguez Torres, that Diamanti had allegedly financed and supported the protests against the government of president Nicolás Maduro.¹⁸⁸⁶ Some days before, on May 1, the offices of that NGO and of Humano Libre were raided by alleged Sebin officials who, after searching the premises detained a young man who was guarding the place.¹⁸⁸⁷ Diamanti was held until the night of May 9, when the 27th Supervising Court in and for Caracas ordered his release under precautionary measures and prohibited him to leave the country. The Office of the Attorney General charged him with offenses under the Criminal Code: obstruction of a public thoroughfare and possession of explosive devices (which had allegedly been found in the raid on the NGO's offices).¹⁸⁸⁸
      

1169. 
      The IACHR learned of an increase in the number of state-owned mass media outlets. On April 12, 2013, president Nicolás Maduro and executive vice president Jorge Arreaza launched the country's first digital television station: ConCienciaTv. The channel is devoted to specific issues and broadcasts programs on science, technology and innovation. It was created "because of the need to create new communication platforms from which to broadcast up-to-date content consistent with the ethical principles of our Bolivarian revolution.”¹⁸⁸⁹ On December 28 the premier launched the first national Bolivarian armed forces Channel (TV FANB) which he described as “a military revolution, a communications revolution.” The channel received an investment of 54 million bolívares (approximately US$8,500,000).¹⁸⁹⁰ During a national address on February 25, president Maduro launched Zum TV, which he described as “the channel for Venezuelan youth.”¹⁸⁹¹ That same day, the premier announced the creation of 400 recording studios with the aim of “democratizing radio in Venezuela” following the official inauguration of Radio Favela situated in the El Valle sector in Caracas.¹⁸⁹² During this national address the premier also announced the creation of other channels, such as TV Comunas and TV Obrera. “We are launching Zum TV. Very soon we will be launching television for the working classes, TV Obrera, and very soon we will launch TV Comunas. This is the birth of the new television of the 21st century in Venezuela,” he said.¹⁸⁹³
      

1170. 
      On March 11, president Nicolás Maduro launched the magazine Venezuela se respeta, whose purpose is to tell the world the truth about the ongoing coup d'état denounced by the government. “In here we have everything that has happened in Venezuela over the past weeks, with photographs, all the truth about the supposed protests; we are going to produce a special documentary in every language and broadcast it to the whole world and disseminate it by all the means at our disposal. They have sought to threaten democracy. In here we show you the whole truth,” said the president.¹⁸⁹⁴
      

1. 
   Introduction
   

1. 
   Freedom of expression is a fundamental right and a basic component of any democratic society.¹⁸⁹⁵ In fact, in its very first ruling on the subject, the Inter-American Court of Human Rights called freedom of expression “a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed.” Consequently, the Court concluded, “a society that is not well informed is not a society that is truly free.”¹⁸⁹⁶
   

2. 
   In this context, the media—and especially the audiovisual media—perform an essential function in guaranteeing the freedom of expression of individuals, as the media serve to convey individuals’ thoughts and information while at the same time allowing them access to the ideas, information, opinions, and cultural expressions of others.¹⁸⁹⁷ The Inter-American Court of Human Rights has been emphatic in ruling that media is a vehicle or instrument of freedom of expression and information, and therefore freedom and diversity must be guiding principles in the regulation of broadcasting, as well as that media activity must be guided and protected by the standards regarding the right to freedom of expression.¹⁸⁹⁸ In fact, the IACHR has indicated that regulation of the broadcast spectrum must simultaneously guarantee freedom of expression for the greatest number of people or perspectives; equality of opportunities in media access; and the right of contemporary societies to plural and diverse information.¹⁸⁹⁹
   

3. 
   Today, the countries in the region are transitioning from analogue to digital television, while others have just begun this process. Beyond issues concerning the technological standard each country chooses, it is important—from the standpoint of the rights to freedom of expression and access to information—to define guiding principles to ensure that the digitalization of television signals becomes an opportunity to guarantee freedom of expression, universal access to all types of information and ideas, media diversity, and pluralism of information and opinions.
   

4. 
   Digital transmission is a technical process by which data, sounds, and images are converted into a series of digits in binary code (i.e., 0s or 1s) and transmitted. The digits can be compressed and then re-expanded on arrival, thus economizing on transmission capacity.¹⁹⁰⁰ Digitalization enables content and platforms to converge, as the original signals can be retransmitted through common means of support, converging through many types of networks, whether Hertzian waves, optic cables, or satellite broadcasts. The digitalization of broadcasting saves space on the broadcast spectrum, which makes it possible to have more television signals with less bandwidth.¹⁹⁰¹ This process involves a trade-off between the number of channels and the level of quality of the desired transmission.¹⁹⁰²
   

5. 
   Nevertheless, the process does not involve only technical transformations. As has been observed, because of the function of the media in a democratic society, any decision concerning the transition to digital television must observe aspects related to guarantees for the exercise of freedom of expression and the promotion of diversity. To this effect, it is necessary to establish principles that guide the issuance and implementation of laws regulating this process, in order to regulate technical aspects but also to promote pluralism and remove cultural or linguistic barriers to access to different sources of information and prevent or reduce the concentration of media in the hands of a few operators.
   

6. 
   Moreover, in the transition process, the possibility of obtaining more television signals with less bandwidth offers opportunities to increase the flow of information and diverse perspectives to the public, to ensure that current broadcasters can continue their operations, and to diversify access by new actors to the ownership and management of media outlet. Nonetheless, the transition to digital can also produce negative effects, if it is not guided by the requirements necessary to guarantee freedom of expression. This would result in less pluralism and new barriers to cultural and linguistic diversity and to the free flow of information. That would mean the loss of a rare opportunity to meet the objectives of diversity and pluralism established in the inter-American legal framework, through a transition which enables different sectors or types of media outlets to coexist, based on the type of media ownership or management, and to promote greater programming diversity.
   

7. 
   In this document the Office of the Special Rapporteur offers States and civil society in the region general principles for the protection of the right to freedom of thought and expression in the context of the transition to digital broadcasting. These principles aim to serve as a guide to governments, legislative and administrative bodies, the courts, and civil society, so as to pave the way for handling this conceptually and technologically groundbreaking situation and to promote the review and adoption of legislation and practices with a view to ensuring full respect for the right to freedom of thought and expression, along with the inclusion of more participants in this process.
   

2. 
   Establishment of an Explicit, Clear, and Precise Legal Framework
   

8. 
   The digitalization of television presents regulatory challenges that are not always addressed correctly in the legal frameworks for analogue broadcasting, and therefore it may be necessary to review current legislation. In this regard, the transition from analogue to digital television requires specific norms that take into account the adoption of new technical standards for signal transmission; establish requirements, procedures, and criteria so that current or new operators can access the new technology; and approve the plans, deadlines, and stages that should be followed until the so-called analogue switch-off,¹⁹⁰³ among other aspects.
   

9. 
   The new regulatory framework should contemplate the conditions and requirements for all broadcast regulations. As the Office of the Special Rapporteur has indicated, because the regulation of broadcasting can involve a limitation to the exercise of the right to freedom of expression, it must meet the three-part test established in Article 13(2) of the American Convention. The limitation must be previously established in law that is explicit, restrictive, precise, and clear, both in a material and in a formal sense; be designed to achieve imperative objectives authorized by the American Convention; and be necessary in a democratic society to meet the objective it pursues, and strictly proportional for meeting that objective.¹⁹⁰⁴ This principle holds true with respect to the digital transition and the laws governing this process, as well as the decisions and administrative actions that actualize or govern this transition for the media outlets involved.
   

10. 
    Along these same lines, the Council of Europe has recommended that States create adequate legal and economic conditions for the development of digital broadcasting¹⁹⁰⁵ and adapt “their regulatory framework to economic, technological and social developments taking into account, in particular, the convergence and the digital transition and therefore include in it all the elements of media production and distribution.”¹⁹⁰⁶ Meanwhile, the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE) has also observed that “States should develop a legislative framework and strategy for digital broadcasting.”¹⁹⁰⁷ Based on these recommendations, many States in Europe have adopted specific laws regarding the digital transition.¹⁹⁰⁸
    

11. 
    In addition, the Office of the Special Rapporteur has noted that it is crucial that the legal framework provide people with legal certainty and set forth in the clearest and most precise terms possible the conditions for exercising the right and the limitations to which broadcasting is subject. Thus, for example, in regulating the integration of enforcement authorities, or procedures for accessing or revoking licenses, or the power of the public authorities, the language of the statute must avoid vagueness or ambiguities that would allow for potential arbitrary actions that discriminate against an individual, group, or sector in broadcasting. The law must establish the substantive aspects of regulation; that is, it should not delegate the definitions of policies central to broadcasting to the enforcement authority. The enforcement authority may only interpret or specify the substantive aspects defined clearly and beforehand in the law.¹⁹⁰⁹
    

12. 
    In several countries of the region there already exists general legislation on broadcasting already. To the extent that these meet the requirements that have been laid out, any technical regulations, decrees, or resolutions must be issued by the government or the regulatory authority assigned to regulate the transition to digital television must not go beyond such legislation. By contrast, if no legal framework exists that is compatible with standards for broadcasting and freedom of expression, or if it does not make it possible to meet the goal of ensuring the greatest possible diversity and plurality, “the States should establish specific legal mechanisms to advance the switchover to digital broadcasting services”¹⁹¹⁰ or substantially modify the existing legal framework on audiovisual services, to bring it in line with democratic requirements and with the American Convention.
    

13. 
    Up until now, the adoption of mechanisms in the hemisphere to govern digital television has been established both at the legal and supra-legal level. Thus, for example, in 2005 the United States approved the Digital Television Transition and Public Safety Act¹⁹¹¹, while in Chile, the regulation on digital television was established through a specific law approved by the National Congress in 2014.¹⁹¹² In the rest of the region, some countries have approved government decrees on the subject, such as Brazil in 2003¹⁹¹³ and 2006,¹⁹¹⁴ Argentina in 2009,¹⁹¹⁵ Mexico in 2010,¹⁹¹⁶ and Uruguay in 2012.¹⁹¹⁷ In addition, some States have regulated the issue through rules issued by regulatory authorities, such as Peru in 2010,¹⁹¹⁸ Mexico in 2004 and 2012,¹⁹¹⁹ and Colombia in 2012.¹⁹²⁰
    

14. 
    As was indicated earlier, State regulation of broadcasting in general and of digital television in particular must have as one of its objectives “to guarantee, protect, and promote the right to freedom of information, pursuant to conditions of equality and non-discrimination, and guarantee the right of society to access all types of information and ideas.”¹⁹²¹ Along these lines, in the Joint Declaration on the Protection of Freedom of Expression and Diversity in the Digital Terrestrial Transition, adopted in 2013, the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE), the Special Rapporteur on Freedom of Expression of the OAS Inter-American Commission on Human Rights, and the Special Rapporteur on Freedom of Expression and Access to Information of the African Commission on Human and Peoples’ Rights (ACHPR) maintained that “States should ensure that respect for freedom of expression, including diversity in the airwaves, is ensured in the digital terrestrial transition process.”¹⁹²² This does not rule out the fact that other general objectives of interest may be included in such regulations, such as universal access to new technology, the promotion of educational and cultural content or the local audiovisual production.
    

15. 
    Thus, for example, Argentina’s regulations include as an objective “to promote social inclusion, cultural diversity, [and] the country’s language through access to digital technology, as well as the democratization of information.”¹⁹²³ Peru’s regulations, meanwhile, include as an objective “to procure access for television viewers to a wider variety and quality of content in the areas of information, knowledge, culture, education, and entertainment, raising the quality of life for the population.”¹⁹²⁴
    

16. 
    Ultimately, broadcasting rules should aim to create a framework that allows for the most extensive, free, and independent exercise of freedom of expression, facilitating access to the most diverse number of groups or people, in order to ensure that this power will not be used as a form of indirect censorship and to guarantee diversity and pluralism in broadcasting. As the Office of the Special Rapporteur has stated, the States should evaluate the broadcasting possibilities arising from the use of the digital dividend, and consider this technological change an opportunity to increase the diversity of voices and enable new sectors of the population to access communications media.”¹⁹²⁵
    

17. 
    Rules and plans for the digital transition should be developed under public scrutiny, with public participation,¹⁹²⁶ and should be open to civil society to ensure pluralism in television services, public access to a wide variety of programs, and the protection of the interests of the population, especially those of minority and vulnerable groups. Along these lines, in their 2013 Joint Declaration, the UN Special Rapporteur, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur, and the ACHPR Special Rapporteur maintain that “States should ensure that decision-making processes relating to the digital terrestrial transition take place in a transparent and fully consultative manner, allowing for all stakeholders and interests to be heard. One option here is to create a multi-stakeholder forum to oversee the consultative process.”¹⁹²⁷
    

3. 
   Promotion of Diversity and Pluralism in Digital Broadcasting
   

18. 
    As indicated earlier, technological development provides a critical opportunity to guarantee access to frequencies for people or sectors that are generally marginalized or excluded.¹⁹²⁸ As was noted by the OAS, UN, OSCE, and ACHPR Special Rapporteurs, “if not carefully planned and managed, the digital transition can exacerbate the risk of undue concentration of ownership and control of the broadcast media.”¹⁹²⁹ The challenge now, and in the immediate future, is to transform the current inequality in the exercise of the right to freedom of expression into a digital opportunity for all.¹⁹³⁰ To do that, as will be shown below, in the process of converting to digital television States should observe the need to ensure: (i) an increase in the diversity of television media and promotion of new operators; (ii) plurality and diversity of content; (iii) recognition of three digital television sectors; and (iv) promotion of plurality and diversity through regulation of concentration of media control and ownership.
    

1. 
   Increase in the Diversity of TV Media and Promotion of New Operators
   

19. 
    One aim of the process of implementing digital television should be to bring about a more diverse and plural system of television media than the one that exists with analogue technologies. For this, the States should evaluate the broadcasting possibilities that result from the bandwidth savings made possible by digitalization and the use of the various digital dividends that become available when the transition is complete, considering this technological change as an opportunity to increase the diversity of voices and enable new sectors of the population to access communications media.¹⁹³¹ Likewise, the OAS, UN, OSCE, and ACHPR Rapporteurs have established that States should ensure that the digital terrestrial transition process ensures respect for freedom of expression, “including diversity in the airwaves.”¹⁹³² Along these lines, the Rapporteurs have established that “State policies and licensing processes relating to the digital terrestrial transition should promote media diversity.”¹⁹³³
    

20. 
    The Office of the Rapporteur has stated emphatically that freedom of expression and diversity must be guiding principles in the regulation of broadcasting: “The State’s authority to regulate broadcasting is based on, inter alia, the ‘duty to guarantee, protect, and promote the right to freedom of information, pursuant to conditions of equality and non-discrimination, and the right of society to access all types of information and ideas.’ In this way, the broadcasting regulation that the State can and should create would form a framework under which the broadest, freest, and most independent exercise of freedom of expression for the widest variety of groups and individuals is possible. The framework should function in such a way that it guarantees diversity and plurality while simultaneously ensuring that the State’s authority will not be used for censorship.”¹⁹³⁴
    

21. 
    These guiding principles also apply to the transition to digital television. In this process, governments and national regulators should adopt public policies to increase diversity in the media, pluralism of content and prevent concentration in broadcasting. Under these new conditions, it is possible and desirable for regulations and implementation plans for digital television to facilitate the entry of new television operators, both in the public sector as well as in the community and commercial sectors. It is desirable for these measures to be adopted without waiting for the analogue switch-off, unless it is clearly and plainly evident that the technical conditions do not exist to do so from the very start of the implementation of digital television.
    

22. 
    In this regard, States should adopt measures to guarantee the exercise of freedom of expression, plurality, and diversity in the transition to digital. Such measures could include, among others, adapting to inter-American standards governing procedures to access, renew, or revoke licenses; recognizing the various sectors within the media; encouraging diverse and new operators; setting limits on media ownership concentration; promoting programming diversity among operators; decentralizing the production of content geographically; and establishing rules to provide more diversity in television for subscribers and allowing for universal coverage of public-interest television (through so-called “must-carry”¹⁹³⁵ rules).
    

23. 
    Opening up the airwaves to new operators allows for a greater diversity of voices from the time digital is switched on, and at the same time provides a direct incentive for new technologies to be spread throughout the country faster and more efficiently. While new actors are interested in a fast transition so as to reach the entire population, having a larger number of operators makes it more attractive for people to buy reception devices, as they can access more signals. For the United Nations Educational, Scientific and Cultural Organization (UNESCO), one positive step the State should take to promote a media environment in which freedom of expression, independence, and media pluralism can flourish would be to “allocate digital licenses to a diverse range of commercial and non-commercial operators.”¹⁹³⁶ Along these lines, the UN, OAS, OSCE, and ACHPR Rapporteurs for Freedom of Expression maintain that “consideration should be given to providing support, based on equitable, objective criteria applied in a non-discriminatory fashion, to those wishing to establish new media outlets.”¹⁹³⁷
    

24. 
    Thus, for example, the specific rules on digital television established by the Uruguayan government in 2012 enable access by new operators at the very outset of the digital switch-on, through public, open competitions.¹⁹³⁸ In the capital, Montevideo, three commercial analogue stations and one public station are currently on the air, but once new authorizations are granted the public will have free access to five commercial stations, two public ones, and, for the first time, to a community TV channel. A channel was also made available for shared use by various community initiatives, subject first to a call going out to interested parties. Several of these channels will carry more than one television signal, so there will be broader diversity not only of operators but also of content.¹⁹³⁹
    

2. 
   Plurality and Diversity of Content
   

25. 
    The digitalization of broadcasting will make it possible to have more television channels. But more channels does not imply diversity if they simply produce more of the same.¹⁹⁴⁰ In this sense, “competition rules alone may not be sufficient to ensure cultural diversity and media pluralism in the area of digital television.”¹⁹⁴¹ In addition to promoting a diversity of media outlets, States should also consider adopting public policies to actively promote diversity of content among and within media outlets, “where this is consistent with international guarantees of freedom of expression.”¹⁹⁴²
    

26. 
    In its recommendations on achieving greater media diversity, the Council of Europe has also considered the need to establish measures for internal diversity within the media. In this regard, it has stated, “Pluralism of information and diversity of media content will not be automatically guaranteed by the multiplication of the means of communication offered to the public.” Therefore, it goes on to say, States “should, while respecting the principle of editorial independence, encourage the media to supply the public with a diversity of media content capable of promoting a critical debate and a wider democratic participation of persons belonging to all communities and generations.”¹⁹⁴³
    

27. 
    The UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression have indicated that States should consider “providing support, based on equitable, objective criteria applied in a non-discriminatory fashion, for the production of content which makes an important contribution to diversity,”¹⁹⁴⁴ and consider adopting measures to promote independent content producers, “including by requiring public service broadcasters to purchase a minimum quota of their programming from these producers.”¹⁹⁴⁵
    

28. 
    Countries such as Argentina,¹⁹⁴⁶ Brazil,¹⁹⁴⁷ and Canada¹⁹⁴⁸ have created public funds to produce and broadcast audiovisual content, and have established minimum requirements for airing national, local, or independent productions.
    

29. 
    For its part, Chile has promoted the production and broadcasting of content through funds open to competition, such as the Fondo CNTV, with more than $6 million in 2013. The funds are managed by an autonomous agency, established in the constitution, called the National Television Council.¹⁹⁴⁹ According to the legal text of the statute on digital television, this agency must give priority to the allocation of benefits for programs by regional, local, and community media outlets, though content for free-to-air national television and pay television platforms is also eligible for funding.¹⁹⁵⁰
    

30. 
    As mentioned earlier, Argentina has also developed an active policy along these lines, through various tools to promote audiovisual production and interactive applications for digital television. These include a competitive fund, the “Operational Plan to Develop and Encourage Digital Audiovisual Content”¹⁹⁵¹; the “Argentine Universal Audiovisual Content Bank” (BACUA), a “source of digital audiovisual content available for both new and existing free-to-air broadcast venues”¹⁹⁵²; and “Audiovisual Technology Poles,” a program that seeks to create and strengthen capacities for national content production for digital television and to decentralize national audiovisual production through the creation of a network of centers at national universities. These centers work in tandem with different actors in the broadcasting sector and civil society organizations in their sphere of influence.¹⁹⁵³
    

31. 
    It should be noted that public service television, because of its mandate and purpose, should contribute to plurality of content. As will be seen in greater detail in this report, the mandate of public service television includes strengthening democracy, building citizenship, encouraging political pluralism and cultural pluralism, providing reliable information that is pluralistic and balanced, and providing educational, cultural, and entertainment programs for the whole of society.¹⁹⁵⁴ In this sense, as was indicated earlier, one measure that can help promote diversity of free content and universal access to free-to-air television is the establishment of must-carry rules¹⁹⁵⁵ that apply primarily to subscription television providers in the area where the signals are transmitted.
    

3. 
   Recognition of Three Digital TV Sectors
   

32. 
    One measure to promote diversity and pluralism in the media is to expressly recognize that there are at least three sectors in broadcasting—commercial, public, and community—and to reserve part of the digital television spectrum for community and other nonprofit initiatives.
    

33. 
    The Office of the Special Rapporteur has indicated that the right of the public to receive the maximum variety of information and ideas possible means that “the regulation of broadcasting should include setting aside space on the spectrum for a diverse system of media outlets that can together represent a society’s diversity and plurality of ideas, opinions, and cultures.”¹⁹⁵⁶ Therefore, it has insisted on the “need for broadcasting regulations to establish the duty to allocate part of the spectrum to community media.”¹⁹⁵⁷ In this sense, “different types of broadcasters—commercial, public service and community—should be able to operate on, and have equitable access to, all available distribution platforms…including the new digital dividend.”¹⁹⁵⁸ Similarly, the UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression recognized that different types of broadcasters (commercial, public service, and community) as well as broadcasters of different reach (local, national, regional, and international) contribute to diversity in freedom of expression.¹⁹⁵⁹
    

34. 
    Several countries in the region have legislation expressly recognizing the existence of three broadcasting sectors, though opportunity for equal access is not always actually guaranteed and discriminatory conditions of use are often established.
    

35. 
    Thus, for example, the new law on digital television in Chile for the first time recognizes community local television, in addition to educational and cultural television, and general-interest regional and local television.¹⁹⁶⁰ In Uruguay, analogue and digital community radio and TV outlets are now recognized and promoted as a sector that complements public and commercial media, without limits on coverage, since the approval of the 2007 Law on Community Broadcasting Service.¹⁹⁶¹
    

36. 
    Argentina, for its part, in 2009 approved the Law on Audiovisual Communication Services, which recognizes public, commercial, and nonprofit media, including community media.¹⁹⁶² Bolivia’s Telecommunications Law, approved in 2011, recognizes four radio and television sectors: commercial, public, “social community,” and that of “native peasant indigenous peoples and intercultural and Afro-Bolivian communities,”¹⁹⁶³ although it applies only to analogue TV. Ecuador’s 2013 Communication Law also recognizes three media sectors,¹⁹⁶⁴ while Peru’s Radio and Television Law of 2004 recognizes the existence of for-profit commercial broadcasting, as well as public, educational, and community broadcasting.¹⁹⁶⁵ Meanwhile, Mexico’s constitutional reform recognized the existence of social media, which include community and indigenous broadcasting stations.¹⁹⁶⁶
    

4. 
   Promotion of Plurality and Diversity through Regulation of Concentration of Media Control and Ownership
   

37. 
    Another measure States should adopt to promote plurality and diversity is to regulate the concentration of media ownership and control. The main way to encourage greater diversity of information and opinion in the broadcast media is to open up the system to new commercial and community broadcasters and to strengthen and diversify public stations. However, to guarantee a pluralistic and diverse environment, it will not be enough to facilitate the entry of new operators if measures are not adopted to limit and reduce the concentration of media ownership in countries where elevated levels of concentration are found.
    

38. 
    The concentration of the media in a few hands has a negative impact on democracy and freedom of expression, as laid out in Principle 12 of the IACHR Declaration of Principles on Freedom of Expression: “Monopolies or oligopolies in the ownership and control of the communication media must be subject to anti-trust laws, as they conspire against democracy by limiting the plurality and diversity which ensure the full exercise of people’s right to information.” Along these lines, since its first ruling on the subject the Inter-American Court has held that any monopoly on media ownership or administration is prohibited, regardless of the form it takes, and has recognized that States must actively intervene to prevent ownership concentration in the media sector.¹⁹⁶⁷
    

39. 
    In this regard, the IACHR has indicated that “if [the] media are controlled by a reduced number of individuals, or by only one individual, this situation would create a society in which a reduced number of individuals, or just one, would exert control over the information and, directly or indirectly, on the opinion received by the rest of the people. This lack of plurality in sources of information is a serious obstacle for the functioning of democracy. Democracy requires the confrontation of ideas, debate and discussion. When this debate does not exist, or is weakened by the lack of sources of information, the main pillar for the functioning of democracy is harmed.”¹⁹⁶⁸ Moreover, as the Office of the Special Rapporteur has reiterated, one should not lose sight of the fact that the rejection of media concentration does not refer solely to private ownership concentration; it also applies—and in a particular way—to processes that concentrate media ownership or control in the hands of the State.¹⁹⁶⁹
    

40. 
    In fact, the Office of the Special Rapporteur has repeatedly pointed to the need to apply anti-monopoly laws to prevent concentration of media ownership and control as a priority issue for the defense of freedom of expression in the hemisphere.¹⁹⁷⁰ In this regard, the Office of the Rapporteur has expressed its concern “over the danger that the concentration of media ownership may pose to the formation of public opinion”¹⁹⁷¹ in the countries of the region. Therefore, the Office of the Special Rapporteur has urged the States to “adopt legislative and other measures that are necessary to guarantee pluralism, including laws that prevent the existence of public or private monopolies.”¹⁹⁷² In their 2007 Joint Declaration, the UN, OAS, OSCE, and ACHPR Rapporteurs for Freedom of Expression also expressed their concern and opposition to the formation of monopolies and oligopolies, and said that “special measures, including anti-monopoly rules, should be put in place to prevent undue concentration of media or cross-media ownership, both horizontal and vertical.”¹⁹⁷³
    
41. 
    Along these same lines, UNESCO has found that “in Latin America and the Caribbean, where a commercial model has traditionally predominated, media ownership has been highly concentrated among very few owners. In much of the region, on average, almost half of the products and services of the information and communications markets of each country were controlled by one provider.”¹⁹⁷⁴ According to UNESCO, recent country-specific studies have indicated that “high levels of concentration in media ownership persist” in much of the Latin American and Caribbean region.¹⁹⁷⁵
    

42. 
    Especially in terms of the switch to digital, UNESCO has noted that “there have remained many unresolved questions related to how the television sector—historically oligopolies—will adapt to digitalization. It remains to be seen whether the switch is facilitating the entry of new communications and technology providers and consequently [promoting] pluralism, or instead resulting in consolidation and concentration.”¹⁹⁷⁶ This concern was also raised by the OSCE Representative on Freedom of the Media, who has indicated that existing monopoly problems “tend to increase by digitalization” and that therefore “such issues must be addressed without delay.”¹⁹⁷⁷
    

43. 
    Consequently, the regulation of digital television should aim “to ensure that the new digital dividend makes optimal use of the spectrum to guarantee the greatest possible plurality and diversity.”¹⁹⁷⁸ The goal should be to turn this into an opportunity to limit and reduce, or at least not to increase, the undue concentration of media in the hands of individuals, companies, or associated economic groups seen in the analogue environment, both in the form of ownership or operational control and the programming of new television services.
    

44. 
    Along these lines, the UN, OAS, OSCE, and ACHPR Rapporteurs for Freedom of Expression have noted that “special measures should be put in place, as necessary, to prevent the digital terrestrial transition from promoting greater or undue concentration of media ownership or control.”¹⁹⁷⁹ This might include “regulatory measures regarding the way in which multiplexes¹⁹⁸⁰ are run, clear pricing and competition rules regarding multiplexes and distribution networks, and the separation of distribution and content operations within the same business, among other things.”¹⁹⁸¹
    

45. 
    In this context, it is essential to have mechanisms in place to ensure transparency of media ownership at all levels,¹⁹⁸² mechanisms that should be taken into account in designing procedures for granting new digital television licenses. Pre-existing situations involving concentration of media ownership or control should also be taken into consideration.
    

46. 
    Measures taken should “involve active monitoring, taking ownership concentration into account in the licensing process, where applicable, prior reporting of major proposed combinations, and powers to prevent such combinations from taking place.”¹⁹⁸³
    

47. 
    Legislation regulating the transition from analogue to digital television should include mechanisms and rules to ensure continuity of broadcasting for current operators, with provisions that take into account the situation at the outset. On this point, the UN, OAS, OSCE, and ACHPR Rapporteurs for Freedom of Expression have established that “as a general principle, the digital terrestrial transition should enable the continued provision of existing broadcasting services. Nevertheless, regulations on the switch to digital may include special measures to prevent further concentration of current operators of free-to-air analogue television, either directly or indirectly (relatives or other individuals or businesses that belong to the same economic group or that in one way or another enable control by the same individuals or businesses), in order to prevent undue media concentration in the new digital environment. Reasonable and proportionate must-carry and must-offer rules for multiplexes should, as necessary, be put in place to promote this goal.”¹⁹⁸⁴
    

48. 
    In Uruguay, for example, the law establishes that three of the channels designated for providing commercial, free-to-air digital TV service in Montevideo may be allocated to the current license holders of free-to-air television broadcasting services, “in view of their track record as broadcasters and for the purpose of facilitating continuity of their services in the digital transition,”¹⁹⁸⁵ as long as they comply with the law’s requirements. The law also specifies that interested parties who do not have “real independence” from current license holders of free-to-air analogue TV broadcasting services may not participate in new competitions for additional licenses for new digital dividend channels. This includes license holders, their relatives, and directors, administrators, or managers or others who belong to economic groups made up of individuals or businesses that are license holders.¹⁹⁸⁶
    

49. 
    For its part, Chilean law ensures that current analogue TV license holders have the right to request a new concession for digital TV broadcasting. However, the law determines that they may hold only one digital terrestrial television concession in each region of service, with their current analogue concessions coming to an end to enable the migration to digital technology. Under the law, only one operator may hold two concessions: the public National Television of Chile. However, under the second concession, this operator may only broadcast its regional signals and provide transmission services to carry signals from third parties, which will be licensed to provide free-to-air television services but without having a designated part of the spectrum.¹⁹⁸⁷
    

50. 
    Finally, it is important that the issue of so-called “mirror signals” be exempted, only for a specified time, from laws to prevent ownership concentration. During the gradual implementation of digital television, in the period of time known as the “digital transition” or “digital switchover,” analogue television services should coexist with the transmission of a “mirror” digital signal (that is, with identical content), located on another channel on the spectrum that is allocated by the regulatory body. In this way, people can continue to receive TV signals, both on new equipment and on analogue sets, until they acquire digital reception devices.
    

51. 
    Therefore, between the time when digital is first switched on and analogue is switched off, limits to the number of concessions and use of frequencies that an individual, business, or economic group may accumulate in a particular location or nationally may be exceeded only with rare exception. For this situation to be legitimate and not circumvent the limits imposed on undue media concentration, this type of decision must be both an exception and temporary, remaining in effect only until analogue is switched off; it must have a reasonable, planned, non-arbitrary, and never indefinite time frame; and the license holder of the analogue service must be obligated to give back the frequency used originally, at least once analogue is switched off.
    

4. 
   Awarding of Digital TV Licenses
   

1. 
   Licensing Procedures
   

52. 
    The IACHR and the Office of the Special Rapporteur have recognized that States have the authority to regulate broadcasting activity. This authority includes not only the possibility of defining the method of handling concessions, renewals, or revocation of licenses, but also the planning and implementation of public policy related to broadcasting.¹⁹⁸⁸ However, this authority must be exercised bearing in mind the international obligations the State has taken on with respect to the right to freedom of expression—particularly the prohibition established in Article 13(3) of the American Convention, prohibiting the restriction of the right of expression by indirect methods or means, such as the abuse of the authority to regulate or administer radio broadcasting frequencies.¹⁹⁸⁹
    

53. 
    As the Office of the Rapporteur has indicated, “the assignation of radio and television licenses must be guided by democratic criteria and procedures that are pre-established, public and transparent” and that “serve as a check on possible State arbitrariness and guarantee equal opportunities for all individuals and sectors who wish to take part.”¹⁹⁹⁰ On this subject, Principle 12 of the Declaration of Principles states that “the concession of radio and television broadcast frequencies should take into account democratic criteria that provide equal opportunity of access for all individuals.”
    

54. 
    The requirements and mechanisms to obtain a concession to establish a new digital TV broadcasting station should follow the same inter-American standards required for analogue broadcasting services, as these principles are not subject to change depending on the technology used (analogue or digital). In this regard, in its report Freedom of Expression Standards for Free and Inclusive Broadcasting, the Office of the Special Rapporteur has indicated that in the process of allocating radio and television licenses States should, at a minimum: (i) provide for affirmative measures so that the three broadcasting sectors can access licenses under equitable conditions; (ii) include democratic standards and transparent procedures for assigning licenses; and (iii) establish conditions for use of the concessions that are reasonable and non-discriminatory.¹⁹⁹¹
    

55. 
    Under inter-American standards, the process of assigning licenses “must be strictly regulated by law, characterized by transparency, and guided by objective, clear, public, and democratic standards”¹⁹⁹² and must include “sufficient guarantees against arbitrary actions, including the obligation to justify decisions that grant or deny requests, as well as adequate judicial review of these decisions.”¹⁹⁹³
    

56. 
    The criteria for assigning licenses must be limited to establishing only those requirements that are necessary to achieve a legitimate aim, and one of the goals must be to foster plurality and diversity of voices. Moreover, the requirements may not constitute a disproportionate barrier to achieving this goal. In this regard, the Office of the Special Rapporteur has indicated that when the economic criterion is the sole or principal reason for granting radio or television frequencies, “it jeopardizes equal access to the radio spectrum and discourages pluralism and diversity.”¹⁹⁹⁴ Along these lines, the IACHR has stated that “auctions that contemplate only economic criteria or that award concessions without offering equal opportunity for all sectors, are incompatible with democracy and with the right to freedom of expression and information.”¹⁹⁹⁵
    

57. 
    Other disproportionate barriers that should not be applied to procedures for assigning licenses include technical or administrative requirements that are unreasonable and that indirectly raise an economic barrier to access to frequencies, or geographic distance that serve as a barrier by, for example, requiring travel to the capital to file an application.¹⁹⁹⁶
    

58. 
    In addition to granting legal access to a license by public, private, and community media, States should also ensure that provisions establishing conditions for the use of the license are not arbitrary or discriminatory. That is, administrative, economic, and technical requirements for the use of a license must be strictly necessary for guaranteeing its proper functioning, clearly and precisely provided for in the regulations, and not subject to unwarranted modification during the term of the license.¹⁹⁹⁷ Thus, for example, the Office of the Special Rapporteur has maintained that:
    

“[E]xcessively short time limits on concessions would be arbitrary, as they make it difficult for commercial media to recoup their investment or establish a profitable business. Likewise, excessively short time limits would make it difficult for community or social radio stations to truly carry out their projects. Also, concessions that do not lead to contracts that expressly include the rules of use of the license or the conditions under which the rules can be amended can open the door to arbitrary decisions. Some examples of discriminatory limitations would include those provided for by law or established in practice that allow certain kinds of restrictions regarding content, broadcasting power, territorial reach or access to financing, without sufficient, objective and reasonable justification in pursuit of one of the legitimate ends provided for in the American Convention.”¹⁹⁹⁸

59. 
    Finally, in the event the regulations include the possibility of renewing or extending the terms of licenses, the process should have sufficient guarantees in place to prevent licenses from being assigned, withdrawn, or not renewed for discriminatory or arbitrary reasons. Such a procedure must therefore be carried out by body that is independent from political power and sectors linked to broadcasting, and it must be regulated by law; be transparent; be guided by objective, clear, and democratic criteria; and ensure due process. Such regulations must include set time periods, provide for prior notice sufficiently in advance, and guarantee that all interested parties may participate in the competition. In this sense, it is crucial to allow for the right of those who wish to renew their licenses to be heard and to offer evidence before any decision is made. The right to access to a well-founded decision within a reasonable period of time should be guaranteed, as should subsequent judicial review.¹⁹⁹⁹
    

60. 
    Lastly, as the Office of the Special Rapporteur has indicated, “the decision of whether to renew a license must be analyzed in each case according to its compatibility with the objective of fostering plurality and diversity of voices, particularly in countries or regions with media outlets concentrated in a few hands, with a prohibition on punishment for the editorial stance or reporting of a media outlet.”²⁰⁰⁰
    

61. 
    In the Case of Marcel Granier et al. v. Venezuela, the Inter-American Commission found that “the granting of radio and television broadcast frequencies with the objective of putting pressure on and punishing or rewarding and providing privileges to social communicators and media outlets because of the information they provide constitutes an indirect restriction of freedom of expression as prohibited by Article 13(3) of the American Convention. It also has the effect of silencing other media outlets, which severely impacts the social dimension of freedom of expression.”²⁰⁰¹ From the IACHR’s standpoint, when a State adopts a decision regarding the allocation of a frequency, the decision should be based on a law that establishes quotas, procedures, and sufficient reasons to support this action, in order to avoid discrimination and the creation of public monopolies. In situations in which an adequate legal framework in this area exists, the State should also verify that there is no other frequency that would serve to meet the aims being pursued without affecting the possibility that the existing media outlets continue to operate normally.²⁰⁰²
    

62. 
    The application of the principles laid out in the preceding paragraphs to the digital television transition has been noted by the UN, OAS, OSCE, and ACHPR Special Rapporteurs, who stated, “The process for allocating broadcasting licenses should be strictly regulated by law and be guided by clear, objective, transparent and democratic criteria. This includes the need for the legal framework to be sufficiently clear to prevent arbitrary actions, including actions based on the editorial line of a broadcaster, to require decisions to be justified and published, and to allow for judicial review of decisions.”²⁰⁰³
    

63. 
    In this regard, the rules on digital broadcasting in Uruguay include open, public competitions in which the evaluation and selection criteria give priority consideration to the communication proposal the applicants commit to provide. Applications are evaluated based on a series of prerequisites, including commitments to local and independent audiovisual production, which would include the creation of direct jobs and commitments to serve persons with hearing and visual disabilities and to provide a variety of signals.²⁰⁰⁴ In the case of Chile, its legislation establishes that competitions will be held based on the “beauty contest” system.²⁰⁰⁵ Thus, for example, under the law concessions for applicants with their own means to broadcast will be assigned to those “whose proposal, having met the ground rules for the respective competition and being in strict compliance with the requirements related to a financial plan and the personal conditions required by law to be a license holder…offers the best technical conditions to ensure an optimal transmission.”²⁰⁰⁶
    

2. 
   Continuity of Over-the-Air Television as a Free Service
   

64. 
    The implementation of digital television involves a technological upgrade of television services and related signals that were already being broadcast, so continuity should be ensured in the most similar conditions possible for all operators, as well as for the public. In this regard, the UN, OAS, OSCE, and ACHPR Special Rapporteurs have stated, “As a general principle, the digital terrestrial transition should enable the continued provision of existing broadcasting services.”²⁰⁰⁷ This is so that families can continue to be able to receive television services until the switch-off, while they obtain new television equipment that can receive digital signals, and so that the technological change does not mean that people who had been receiving these services end up being left out because of financial, technical, or coverage factors.
    

65. 
    In this regard, these services should remain free of charge, and the establishment of reasonable implementation deadlines should be considered, along with minimum requirements to not discourage access to these services, such as an obligation to maintain at least the same geographic area of service covered by the analogue operator. Along these same lines, the UN, OAS, OSCE, and ACHPR Special Rapporteurs recommend that States should, as necessary, put in place “reasonable and proportionate must-carry and must-offer rules for multiplexes” to promote the continued provision of existing broadcasting services.²⁰⁰⁸ They also recommend taking steps “to ensure that, by the time the switch-off takes place, the geographic reach of digital services is, overall, at least comparable to and preferably greater than the reach of pre-existing analogue services.”²⁰⁰⁹
    

66. 
    From the standpoint of being able to receive free-to-air television services in the digital environment, processes underway in the region have respected the principle of free access to service. Thus, for example, the rules in Argentina determine that one of the aims of the Argentine System for Digital Terrestrial Television is “to plan for the transition from analogue to digital television so as to guarantee that all users can gradually join, free of charge.”²⁰¹⁰ In Uruguay, meanwhile, the rules earmark a certain number of channels “to provide free-to-air, gratis, and accessible digital television broadcasting services throughout the country.”²⁰¹¹
    

67. 
    For its part, Chile’s digital television law provides for maximum periods of two to five years for current license holders to achieve 100 percent digital coverage of all analogue concessions they had been awarded.²⁰¹² Moreover, the law determines that in the case of licenses with national coverage, the technical proposal presented may “include complementary solutions to provide free-to-air services in order to achieve the required coverage in geographically isolated regions or areas where reception is difficult.” However, the law guarantees that these complementary solutions “may not affect the free and direct nature of broadcasts for users” and states that concession holders must “guarantee that the required broadcast receivers are able to receive all signals, both primary and secondary, of concession holders that have national coverage in the respective area of service and that opt to implement complementary solutions.”²⁰¹³
    

3. 
   Transition for Current Operators to Digital Television
   

68. 
    As indicated earlier, the process of digitalizing television does not involve merely upgrading technology and keeping the operators who are already authorized; it can also mean significantly expanding free-to-air broadcasting services, in terms of both the number of signals and the possibility of providing services other than television broadcasts. Making better use of the new television spectrum would make it possible to multiply the number of authorized television signals for a single operator along the same bandwidth where it used to be possible to carry only one signal; expand the “screens” or platforms for receiving such services (on mobile telephones); and even provide services other than the originally authorized broadcasting services as a result of digitalization (interactivity and related services).
    

69. 
    In regulating the transition for current operators, States should take into account, as mentioned earlier, that as a general principle the digital transition should enable the continued provision of all existing broadcasting services.²⁰¹⁴ However, it is important to note that the State’s obligation to provide broadcasting continuity is limited to maintaining conditions as similar as possible to analogue conditions, using as much bandwidth as is strictly necessary.
    

70. 
    The fact, then, that the State must ensure that existing operators are able to continue broadcasting in the new digital environment does not necessarily mean that these operators have a vested right to have automatic access to a completely new channel or frequency for their exclusive use, without a competition and at no cost. In this regard, it is recommended that operators’ track record as broadcasters be taken into account for obtaining new licenses for use of the spectrum. But the notion of “vested rights” should not assume a right to ownership of the spectrum that is used, but rather the legal certainty that operators can continue to broadcast under equal or similar conditions as before, on another part of the spectrum designated for television services, depending on countries’ technical plans.
    

71. 
    States should analyze with particular attention how decisions concerning the allocation of new licenses for exclusive use of whole channels or frequencies might affect the ownership concentration and diversity of the free-to-air television system in the new digital environment, especially in contexts in which it had previously been determined—through a process that provided all guarantees—that monopolies or oligopolies existed. In fact, this aspect must be addressed with particular attention so that the greater amount of services and frequencies held by current operators are taken into account in the design of the transition from analogue to digital free-to-air television. In this regard, the UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression have indicated that “the promotion of diversity should be a mandatory criterion to be taken into account in decision-making in relation to the specific services that are provided on digital multiplexes, whether, or to the extent, that these decisions are taken by multiplex operators or regulators.”²⁰¹⁵
    

72. 
    Indeed, regulations should take an approach that balances the existence of individuals and corporations that already have licenses to provide television services with the entry of new license holders, from the time the digitalization process and plans for its implementation begin, so as to expand diversity and pluralism in the national media system.
    

73. 
    Existing operators who are interested in exclusive access to a channel or multiplex should participate in the same public competition as new applicants and present a communication plan for the new enterprise, although with different prerequisites, including special consideration of their track record. Finally, if these operators are awarded an entire channel through public competition, they should be given a new authorization with conditions of use (time frames, renewals, etc.) in line with the expansion of business and new services from which they will be able to benefit.
    

74. 
    In addition, the UN, OAS, OSCE, and ACHPR Special Rapporteurs have stated that “consideration of the impact on access to the media, and on different types of broadcasters, should be taken into account in planning for a transition from analogue to digital broadcasting.”²⁰¹⁶ As the Office of the Rapporteur has indicated, “these regulations should provide for a migration program that takes into account the needs and capacities of the different actors involved in this process, as well as the level of application of the new technologies.”²⁰¹⁷
    

75. 
    In this regard, transition mechanisms and conditions for use of the new broadcast frequencies assigned to licensees of new or current digital television services should respect the principle of non-discrimination, so as not to give some operators favorable treatment to the detriment of others, for example national broadcast stations or networks as opposed to local stations. Along these lines, States should provide equality of opportunities for access to new licenses and frequencies to all operators authorized to provide analogue TV services, striving to adopt a flexible transition design that allows operators to make choices within their own possibilities, but without discriminating against them in advance. The different forms the transition process takes should stem from operators’ own voluntary decisions, based on their economic capacity or on their communication objectives and plans.
    

76. 
    To do that, States should consider appropriate measures that ensure equality of opportunities to address the challenges of technological change for all actors, in such a way that not only enables but also, as much as possible, facilitates and supports the continuity of these transmissions. They should especially take measures “to prevent the cost of the transition from analog to digital technology from limiting the capacity of the communications media in terms of the financial costs,”²⁰¹⁸ for example by providing access to the necessary infrastructure so as not to be left out of the transition. In this regard, States should study the possibility of including actions such as providing subsidies and creating public funds open to competition or offering access to loans with reasonable financing terms so that community and public television stations, as well as local or regional commercial stations, can tackle the digital transition. Along these lines, the Council of Europe has recommended that “member states should take any financial and regulatory measures necessary to protect and promote structural pluralism of audiovisual and print media,²⁰¹⁹ including “support and encouragement aimed at facilitating the digital switchover for traditional broadcast media.”²⁰²⁰
    

77. 
    Thus, for example, the United States gave local low-power television (LPTV) stations more time to complete the digital transition,²⁰²¹ and since 2009 funding has been provided to these local stations through the Low-Power Television and Translator Upgrade Program, to help them update their technology. The fund made available $44 million, with grants of up to $6,000 available for the modification of analogue equipment or up to $20,000 for the purchase of digital equipment. ²⁰²²
    

78. 
    For its part, Chile’s program on “Development of Regional Technical Capacity for Free-to-Air Digital Television” is a mechanism used to support the transition for regional and local television stations located outside the metropolitan area, with populations of over 100,000 people. They are provided with equipment and support for six months to start broadcasting experimental or demonstration transmissions of digital signals.²⁰²³
    

79. 
    Brazil facilitates the construction and acquisition of digital TV transmission equipment via tax incentives and lines of credit. To that end, Brazil’s National Economic and Social Development Bank (BNDES) created the “Programa Apoio à Implantação do Sistema Brasileiro de TV Digital” (PROTVD), with funds provided for low-cost financing of transmission infrastructure and digital equipment.²⁰²⁴
    

80. 
    In Uruguay, the law set aside sufficient frequencies for current analogue operators, but authorized automatic continuation of their broadcasts at no cost and under the same conditions only for a “mirror” digital signal and not an entire channel, for which they had to apply.²⁰²⁵
    

5. 
   Digital Dividends and New Uses for the Spectrum
   

81. 
    The broadcast spectrum is a public good which States are required to administer efficiently and equitably, as it is a limited resource and one that serves to support the exercise of freedom of expression and information through the audiovisual media. As has already been noted, the IACHR and the Office of the Special Rapporteur have recognized the State’s regulatory role as manager of the spectrum. This authority includes not only the possibility of defining how concessions are handled or licenses renewed or revoked, but also the planning and implementation of public policy related to broadcasting, as long as guidelines governing the right to freedom of expression are followed.²⁰²⁶
    

82. 
    That is why media outlets that require the use of the spectrum “should be subject to clear, transparent, and democratic regulation that ensures the greatest enjoyment of this right by the greatest number of people, thereby also ensuring the greatest circulation of information and opinions.”²⁰²⁷ As the Office of the Rapporteur has stated, “the regulation of the radioelectric spectrum must simultaneously guarantee freedom of expression of the greatest number of people or perspectives, equality of opportunities in media access, and the right of contemporary societies to plural and diverse information.”²⁰²⁸
    

83. 
    Limitations in access to a resource that can at times be scarce, particularly in capital cities or densely populated areas, has been one of the obstacles identified by the Office of the Rapporteur, particularly when it comes to facilitating new players’ access to television. That is why the Rapporteur has insisted that States have an obligation to set aside spectrum for access by excluded sectors, particularly by community media and media outlets created by those who have been excluded from society or indigenous peoples.²⁰²⁹
    

84. 
    As has been noted, with the arrival of free-to-air digital television, less of the spectrum is needed to broadcast television signals than required with analogue television. Accordingly, significant segments of the spectrum are freed up once the transition is complete, which opens up a historic opportunity to achieve the objective of greater media diversity. This is the case as long as States adopt appropriate regulatory frameworks and public policies to use the additional room available on the spectrum.
    

85. 
    The “digital dividend,” in the strictest sense, is the amount of spectrum freed up by current analogue television operators once they migrate to new digital channels. But in a broader sense, the digital dividend should be understood as any freeing up or savings of the spectrum as a result of optimization of use of the spectrum produced by digitalization and the compression of terrestrial television signals.²⁰³⁰ This savings should include the additional frequencies the State itself ends up having at its disposal once the analogue switch-off has occurred. Decisions on this greater amount of space available on the spectrum can be made once the switch-off is complete, or from the time digital is switched on, or during the transition from one system to the other.
    

86. 
    State decisions on the ultimate use of these digital dividends become a key aspect of the digitalization process. As has already been noted, the Office of the Special Rapporteur considers this technological change “an opportunity to increase the diversity of voices and enable new sectors of the population to access communications media.”²⁰³¹ The goal should be “to ensure that the new digital dividend makes optimal use of the spectrum to guarantee the greatest possible plurality and diversity.”²⁰³² Along these same lines, the European Parliament called for “a balanced approach to the allocation of the digital dividend to ensure equitable access for all players, thereby safeguarding media pluralism.”²⁰³³
    

87. 
    The UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression elaborated on this concept in their recent Joint Declaration on Universality and the Right to Freedom of Expression, in which they recommended that States put in place “a legal and regulatory framework that promotes the rights of different individuals and groups to access and use media and digital technologies to disseminate their own content as well as to receive relevant content produced by others.”²⁰³⁴
    

1. 
   New Frequencies Available and Reservation of Spectrum
   

88. 
    The various technical standards were designed so that digital television could be broadcast on frequencies located on the UHF (Ultra High Frequency) band.²⁰³⁵ This forces States to assign new frequencies to current television operators to proceed with the digital transition. This portion of the spectrum has been assigned to analogue, free-to-air, or pay television services, to a greater or lesser degree, but in several countries in the region, to date, it has been unused or underused.²⁰³⁶
    

89. 
    In addition, improvements in the quality and security of broadcasts with the new technology allow for greater efficiency in the use of the spectrum. For example, analogue TV broadcasting does not allow the use of two consecutive channels in the same location, due to interference problems that would arise between stations.²⁰³⁷ With digital television, meanwhile, all available channels can be used—even consecutive ones—which doubles the capacity of the current spectrum.
    

90. 
    From the standpoint of encouraging freedom of expression, the criteria adopted to distribute this new spectrum become public policy decisions (not merely technical decisions) and, as mentioned earlier, can be used as opportunities to correct injustices or imbalances in access to the spectrum or to achieve greater diversity in the television sector.²⁰³⁸
    

91. 
    As the Office of the Special Rapporteur has observed a number of times, the right to freedom of expression demands that States adopt measures to guarantee its exercise in conditions of equality and non-discrimination. That includes the obligation to remove “obstacles preventing certain sectors of society from accessing the media […]. At the same time, the State must actively promote the bringing of disadvantaged or currently marginalized groups into the media.”²⁰³⁹ In addition, “the States must take positive measures to include the non-commercial sectors in the communications media,” such as “ensuring broadcast spectrum frequencies for the different types of media, and providing specifically for certain frequencies to be reserved for the use of community broadcasters, especially when they are not equitably represented in the spectrum.”²⁰⁴⁰ Along these lines, the OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression have recommended that States create “an enabling legal framework for community media, including so it can serve the information and expressive needs of different individuals and groups.”²⁰⁴¹
    

92. 
    In this regard, it is necessary to conduct studies to determine how frequencies are actually being used throughout the country. Sometimes their use may be speculative, with concessions granted to individuals or businesses that do not use them effectively. This presents obstacles not only in terms of diversity and freedom of expression, but also in terms of economic competition, as it involves an abuse intended to impede access by other competitors and a misuse of a space that is as valuable as it is scarce. For this reason, States should make publicly available—in a way that is clear, adequate, and timely—all information related to current use and availability of frequencies assigned to free-to-air and pay television, as well as technical plans for their future use.
    

2. 
   Spectrum Savings and New Potential Uses
   

93. 
    As this report noted earlier, as a result of digitalization, analogue broadcast transmissions are compressed and need to use less spectrum or bandwidth to transmit the same quality of audio and video as a current TV signal. This results in a significant savings of bandwidth.
    

94. 
    This benefit can be used in different ways, for example by improving the signal quality of current TV stations (to broadcast in high definition, or HD²⁰⁴²), or by broadcasting more digital signals on the same channel or frequency on which it used to be possible to broadcast only one analogue signal—or a combination of both possibilities. That does not depend on technology alone but on the regulatory decisions the States must consider with respect to the use of each new channel or “multiplex” in the new digital television format.²⁰⁴³
    

95. 
    States must ultimately consider what an appropriate balance would be as they define their priorities in terms of conditions for use of each of the channels or frequencies earmarked for digital television. In this regard, the UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression have said that “States should make sure that the digital terrestrial transition takes place in a planned, strategic manner which maximises the overall public interest, taking into account local circumstances. This may include decision-making which involves trade-offs between quality (such as the availability of high-definition television) and quantity (such as number of channels), depending on the degree of pressure on the spectrum.”²⁰⁴⁴
    
96. 
    It should be taken into account that technical decisions made by governments and regulatory bodies in these matters have an impact on freedom of expression, as they serve to limit or enable diversity in television. Moreover, such decisions should be made prior to the process of granting licenses and authorizations, using criteria of universality and fairness for all operators located in the same area. As the UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression have stated, “the promotion of diversity should be a mandatory criterion to be taken into account in decision-making in relation to the specific services that are provided on digital multiplexes, whether, or to the extent, that these decisions are taken by multiplex operators or regulators.”²⁰⁴⁵
    

97. 
    In this sense, multiplexing or multiprogramming—in other words, the capacity to broadcast several television signals on the same channel or frequency—is a tool that allows for a greater number of signals, but it can be used in different ways, depending on the context of the country.
    

98. 
    So for example, if a decision is made to allow for only one ultra-high-definition or UHDTV signal to be broadcast on a channel or frequency, the same structure with regard to use of the spectrum and to content will probably be maintained as with analogue, since the same number of television signals and the same license holder will remain. In that case, current operators will be the only beneficiaries of TV digitalization. This means that in countries with high levels of media concentration, allowing only current operators to broadcast several signals on their channel would result in these same operators having a greater concentration of signals, audience, and revenues. Multiplexing takes on another meaning, though, if the possibility is provided for different operators, who hold licenses to different signals, to share the same channel.
    

3. 
   Intended Use of the Digital Dividend
   

99. 
    There has been a growing demand of the broadcast spectrum by mobile bandwidth services for the Internet and web-based services. This led the International Telecommunication Union (ITU) to recommend assigning part of the UHF band for mobile services (voice and data) in the Americas.²⁰⁴⁶
    

100. 
     The countries of the region have been adopting regulatory decisions along these lines, reserving UHF Channels 52 to 69 for that purpose. Industry has done the same, producing equipment, antennas, and receivers for these frequencies. Several States have already put out bids to assign this spectrum with the goal of strengthening access to mobile bandwidth, and others are planning to do so in the near future. In fact, various countries have had to orchestrate plans to adjust the current use of this band to relocate free-to-air or pay-television operators to lower frequencies on the UHF spectrum.²⁰⁴⁷
     

101. 
     This is the spectrum that telecommunications regulatory authorities, experts, and businesses in the sector typically refer to as the “digital dividend.” However, this definition is not appropriate for the Americas, since here the spectrum to be freed up following the analogue switch-off is located on the VHF band,²⁰⁴⁸ the space currently held by analogue TV stations. In this sense, the migration of current analogue channels to digital will have an impact in freeing up frequencies where Channels 2 to 13 are located, which should be given back by current television operators once the transition has been completed.
     
102. 
     In the coming years, then, States in the region will have to adopt a regulatory decision that will have a major impact on broadcasting. They can assign these frequencies exclusively to data services or keep all or some of them for radio and television services. It is true that there is a need to ensure greater bandwidth access for data services, but broadcasters in the region—both from the commercial and community sectors—are demanding an increase in the frequencies available on the FM band.²⁰⁴⁹
     

103. 
     For that reason, it is recommended that States consider the use of such frequencies for various technologies and services, maintaining sufficient availability of broadcasting and mobile bandwidth services, so as to meet goals to promote broadcasting diversity and digital inclusion, close the digital gap, and make Internet services universal.
     

104. 
     In this regard, the UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression have stated, “Where appropriate, consideration should be given to reserving part of the spectrum for analogue radio broadcasting for the medium-term. At least part of the spectrum released through the ‘digital dividend’ should be reserved for broadcasting uses.”²⁰⁵⁰ Such decisions should be adopted in a way that is transparent and non-discriminatory, and should address the need to harmonize services with bordering countries in areas of coordination.
     

105. 
     In addition, the UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression have found that “the need to promote diversity in broadcasting should be an important consideration to be taken into account in decision-making in relation to the broad reallocation of the spectrum freed up by the switch-off of analogue broadcasting (the digital dividend).” Considerations that should be taken into account include:
     

“(i) The extent to which the broadcasting environment caters to the interests of all groups in society, including cultural and linguistic minorities, and people living in different areas and regions. (ii) The diversity of types of content which are available through the broadcasting system. (iii) The interest in and capacity of existing and aspirant broadcasters to provide new channels. (iv) The financial resources available within the broadcasting system as a whole, including any public or cross-subsidies, to support new content production. (v) The diversity benefits of requiring multiplex operators to carry local, community and/or independent broadcasting services. (vi) The diversity benefits of allocating new channel and other capacity to public service broadcasters. (vii) The possibility of providing public funding for the development of new broadcast content or channels.”²⁰⁵¹

4. 
   Access to Transmission Infrastructure
   

106. 
     The costs and complexity of the transition to digital, along with the implications for the diversity and pluralism of television media systems, require careful consideration of aspects related to access to infrastructure for the transmission of gratis free-to-air TV signals. Regulations concerning procedures and access to the broadcast spectrum, as well as to networks and equipment to transmit digital signals, should be adopted in such a way that they do not indirectly hamper the exercise of the right to free expression, either for current or for new operators. Along these lines, a decision to establish an environment conducive to greater media diversity should consider the possibility of adopting a model in which access and management of the transmission infrastructure for digital television is handled solely or on a shared basis by companies other than the individuals or companies authorized to provide television services.
     

107. 
     In the Americas, the management model for analogue TV transmission has been traditional; it assumes that the same license holders for television services also own and operate their own transmission infrastructure. Digital television, by contrast, makes it possible to differentiate these roles, with the appearance of the so-called “network operator,” which manages the transmission infrastructure for TV signals and is not necessarily the same operator that handles programming and airs audiovisual content.
     

108. 
     The OSCE Representative on Freedom of the Media has observed that content issues should be looked at separately from transmission, and broadcasters must have access to transmission. The international agency maintains that the regulator “must balance the needs of the infrastructure owner and other users of the infrastructure, meaning the broadcasters or other service providers that get to use the infrastructure.”²⁰⁵²
     

109. 
     Along these lines, the existence of a network operator different from the television license holder has at times been a good practice, since it has allowed for the transition to take place more quickly and more efficiently and has avoided major investments that television stations often are not able to make. There are countries in which TV broadcast licenses and spectrum use authorizations are awarded to the same license holder, which also manages the channel or multiplex assigned to the service. In other countries, however, broadcast and spectrum use licenses may not be held by the same individual or business; this is the case, for example, in the United Kingdom²⁰⁵³ and France.²⁰⁵⁴ Spain, for its part, awards television licenses and spectrum use authorizations to the same license holder, but management of the multiplex is handled by a different company, one that has a telecommunications license.²⁰⁵⁵
     

110. 
     States should also consider whether it is necessary and viable to have a national transmission network for free-to-air digital television signals, in order to facilitate access by different operators to the new technologies, optimize use of the spectrum, and ensure that the public has universal access to the signals.
     

111. 
     In Europe, several countries provide for a single network operator, which can be privately owned, public, or public-private; in general, these are telecommunications companies. Thus, for example, in Spain the digital TV network operator is a commercial company (Abertis),²⁰⁵⁶ in Serbia it is State-owned (Emisiona tehnika I veze),²⁰⁵⁷ while in Latvia the network operator is a public-private enterprise whose majority shareholder is the State (Lattelecom).²⁰⁵⁸
     

112. 
     In addition, existing infrastructure should be used as much as possible, which would also help to keep down costs.²⁰⁵⁹
     

113. 
     Regulators should establish conditions so that all categories of television operators can have access to digital technology. If operators cannot have access to infrastructure under reasonable conditions, digitalization will limit plurality and diversity instead of encouraging it. Moreover, any State assistance for the media to access the transmission infrastructure should be carefully designed so as not to give undue preference to one commercial operator over others. Governments should refrain from giving preference or facilitating the transition to digital technology only to State-run broadcasters or only to a particular group of privately owned operators.²⁰⁶⁰
     

114. 
     One way to guarantee access to the infrastructure needed to provide free-to-air digital television services is by adopting “must-carry” rules for pay television services. This is a way to support and accelerate the digital TV transition process and facilitate the entry of new operators into the market, as well as to universalize access to free-to-air TV services through complementary technological platforms.
     

115. 
     As noted earlier, the Special Rapporteurs for Freedom of Expression have stated that “different types of broadcasters—commercial, public service and community—should be able to operate on, and have equitable access to, all available distribution platforms.” Along these lines, the Rapporteurs have indicated that specific measures to promote diversity may include, among others, reserving adequate frequencies for different types of broadcasters and having must-carry rules.²⁰⁶¹ The Rapporteurs have also indicated that “reasonable and proportionate must-carry and must-offer rules for multiplexes should, as necessary, be put in place” to enable the continued provision of existing broadcasting services.²⁰⁶²
     

116. 
     For its part, the European Parliament developed this principle in its 2007 directive on audiovisual communications and its 2002 directive on universal service. In this regard, the European Parliament established that “Member States may impose reasonable ‘must carry’ obligations, for the transmission of specified radio and television broadcast channels and complementary services, particularly accessibility services to enable appropriate access for disabled end-users, on undertakings under their jurisdiction providing electronic communications networks used for the distribution of radio or television broadcast channels to the public where a significant number of end-users of such networks use them as their principal means to receive radio and television broadcast channels. Such obligations shall only be imposed where they are necessary to meet general interest objectives as clearly defined by each Member State and shall be proportionate and transparent…. Member States shall review ‘must carry’ obligations on a regular basis.”²⁰⁶³ For its part, UNESCO has also understood that “there should be some ‘must-carry’ obligations on satellite and cable carriers, at a minimum, to carry PSB [public service broadcasting] channels among the choices they offer as well as the possibility of must-carry obligations to promote diversity (e.g. in favour of minority channels).”²⁰⁶⁴
     

117. 
     Must-carry obligations should also be considered for digital television network operators or license holders of free-to-air TV services, as a mechanism to reduce market dominance. This model has been tried in cases in which the major television stations had access to management of an entire channel under advantageous conditions, but with must-carry obligations to enable them to carry other signals and content for public, community, or local commercial stations, or stations with relevant social interest that lack the economic resources to have their own access to transmission equipment and networks.
     

118. 
     Thus, for example, the Italian regulator Autorità per le garanzie nelle comunicazioni (AGCOM) required the two most important media groups in the country to set aside 40 percent of their channels’ capacity to carry signals of independent television or “content providers.”²⁰⁶⁵ Guarantees of access to signals independent from the operator or transmission network can also be found in Finland, the United Kingdom, Austria, and the Netherlands.²⁰⁶⁶
     

119. 
     Chile, for its part, provides that operators of subscription television services must broadcast, where technically feasible, at least four regional, local, or local community stations in their respective lineups. The specific channels will be defined by the National Television Council for a five-year period, with a mandate to “maintain a representative diversity among them and give preference to educational and cultural channels.”²⁰⁶⁷ The Uruguayan Audiovisual Communication Services Bill [Ley de Servicios de Comunicación Audiovisual (LSCA)] has included a must-carry rule.
     

120. 
     It is important to note than in adopting must-carry rules, providing for shared use of channels, or approving the existence of a single network operator, States should establish specific obligations in the law to prevent those who use the transmission and distribution infrastructure from engaging in discriminatory practices in access and use through abusive management, particularly if the operators hold dominant market positions. On this point, the UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression have indicated that special measures that could be put in place might include “regulatory measures regarding the way in which multiplexes are run, clear pricing and competition rules regarding multiplexes and distribution networks, and the separation of distribution and content operations within the same business, among other things.” ²⁰⁶⁸
     

121. 
     Regulations should also establish conditions for use that are fair, transparent, and non-discriminatory, such as: pricing that is appropriate, publicly accessible, and non-discriminatory, though taking into account the particular characteristics of community and public media outlets; and a prohibition on direct or indirect interference in the content broadcast over the television signals. Regulatory agencies should also have sufficient authority and resources to provide oversight and act in response to complaints regarding violations of these conditions. Along these lines, the UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression have indicated the following: “Where multiplexes are run by content service providers or independent operators, clear rules should be in place regarding the allocation of capacity (or additional capacity) on the multiplex, including, as appropriate, to ensure that this is done in a fair, transparent and non-discriminatory manner. This takes on particular importance in countries with only one multiplex.”²⁰⁶⁹
     

122. 
     Several European countries have established requirements to prevent abuse in management of the infrastructure, with caps on prices that can be charged or a direct ban on interference in the content of the TV broadcast license holder. Thus, for example, Slovenia has allowed a new commercial operator to use a digital channel, but that operator has major coverage obligations (85 percent of the population), and it must leave spectrum available for other operators’ signals, with a maximum imposed on the price it can charge.²⁰⁷⁰ Serbia’s public network operator, Emisiona tehnika iveze, is expressly required to guarantee access to the public television station RTS and other existing operators, without interfering in their content.²⁰⁷¹
     
123. 
     Uruguay explicitly establishes in its particular regulations that public network operators (the telecommunications company Administración Nacional de Telecomunicaciones and the public television channel Televisión Nacional Uruguay) should charge a “reasonable” price and “be completely neutral as to the content transmitted by the broadcast license holders that contract for infrastructure services, who are the only ones responsible for content.”²⁰⁷²
     

124. 
     For its part, Chile’s digital television law, approved in 2014, entitles the public channel Televisión Nacional de Chile to a second frequency in each location where it provides services, to broadcast both its own regional signals and those of other licensees that do not have their own means of broadcasting,²⁰⁷³ through “public and non-discriminatory offerings to any license holder of free-to-air television broadcasting.”²⁰⁷⁴
     

125. 
     Finally, it is critical in the digital environment to encourage cooperation among operators and ensure interoperability,²⁰⁷⁵ so that all equipment can communicate with each other and interrelate, regardless of brands or manufacturers. In this regard, the Special Rapporteurs for Freedom of Expression have recommended that States put in place “regulatory measures to ensure the interoperability and compatibility of reception, decoding and decryption devices.”²⁰⁷⁶
     

6. 
   Recognition and Promotion of Community Digital Television
   

126. 
     The IACHR and the Office of the Special Rapporteur have stated that community broadcasting media, including community television, “perform an essential function in our hemisphere for different sectors of society to exercise their rights to freedom of expression and access to information.”²⁰⁷⁷ In this regard, the Office of the Rapporteur has stressed that community media must be recognized legally and explicitly as a broadcasting sector and must have the right to establish analogue or digital media outlets under conditions that are appropriate and non-discriminatory, a necessary condition for all segments of society to be able to effectively exercise these rights.²⁰⁷⁸ In addition, the Special Rapporteurs for Freedom of Expression have emphasized that “community broadcasting should be explicitly recognized in law as a distinct form of broadcasting” and “should be able to operate on, and have equitable access to, all available distribution platforms… including the new digital dividend.”²⁰⁷⁹
     

127. 
     The Office of the Special Rapporteur has maintained that “legal provisions regulating community broadcasting must recognize the special nature of these media and contain, as a minimum, the following elements: (a) simple procedures for obtaining licenses; (b) no demand of severe technological requirements that would prevent them, in practice, from even being able to file a request for space with the State; and (c) the possibility of using advertising to finance their operations.”²⁰⁸⁰
     

128. 
     To that end, regulations on digital television should also include the community broadcasting sector and provide adequate measures to create fair access opportunities for real equality in the exercise of the right to freedom of expression.
     

129. 
     Thus, for example, Colombia explicitly provided for the support and strengthening of community and nonprofit local television—a sector that had been nonexistent in the analogue environment—in its 2010-2013 development plan for television, prepared by the National Television Commission.²⁰⁸¹ This decision was reaffirmed in April 2012 with Agreement 003, which specifically regulates nonprofit local television service.²⁰⁸² Likewise, the strategic agenda of the new regulatory agency (National Television Authority, ANTV) stipulates the allocation of resources and the opening of specific competitions for collectives that provide community television service and local nonprofit channels.²⁰⁸³
     

130. 
     In the case of Chile, as part of the competition process for community television, the National Television Council must hear from an advisory committee in public hearings, in which social organizations that wish to participate will be included.²⁰⁸⁴ For its part, Uruguay provides for different procedures for the community sector, with public hearings held in the local area where the service will be provided. Before the State makes a decision, it must have a nonbinding report from an independent organization made up of, among others, community media associations (Honorary Advisory Council on Community Broadcasting, CHARC).²⁰⁸⁵
     

131. 
     States not only have the obligation to legally recognize community television broadcasting but also to “take positive measures to include the non-commercial sectors in the communications media,”²⁰⁸⁶ in order to ensure “basic conditions of dignity, security, subsistence, and development.”²⁰⁸⁷
     

132. 
     Requirements and procedures for new community television operators to obtain access, or for analogue community TV stations to make the transition to digital, should be established in a way that is distinct from the public and commercial sectors, recognizing the specific characteristics and objectives of community media and creating fair conditions for access to licenses and to the spectrum.
     

133. 
     One measure for regulating digital television that is compatible with the American Convention is to establish spectrum set-asides to ensure real access to one of the essential technical supports for the exercise of freedom of expression. As has already been mentioned in this regard, the Office of the Special Rapporteur has insisted on “the need for broadcasting regulations to establish the duty to allocate part of the spectrum to community media.”²⁰⁸⁸
     
134. 
     Legislation in several countries in the region reserves part of the spectrum for this sector. For example, Uruguay was the first country in the region to establish a set-aside for community media outlets of “at least one third of the broadcast spectrum for each location on all analogue and digital frequency bands, both for radio and for television.”²⁰⁸⁹ The country’s specific regulations on digital television also include this provision, establishing that 7 of the 20 frequencies available for these services will be reserved for the community sector.²⁰⁹⁰
     

135. 
     Argentina also reserves spectrum for nonprofit media—33 percent of “planned broadcasting locations, on all audio broadcast and terrestrial television bands, in all coverage areas for nonprofit legal entities.” It also reserves one AM radio frequency, one FM radio frequency, and one free-to-air television frequency “for Native Peoples in the areas where each of the peoples is based.”²⁰⁹¹ For its part, Bolivia’s Telecommunications Law provides a spectrum set-aside for analogue television of up to 17 percent for social community broadcasting stations and up to 17 percent for “native peasant indigenous peoples and intercultural and Afro-Bolivian communities.”²⁰⁹² Meanwhile, in 2013 Ecuador approved a set-aside of 34 percent of broadcast frequencies for “community media operations.”²⁰⁹³ In the case of Chile, the law sets aside 40 percent of the available spectrum capacity, once analogue operators have migrated, for regional, local, and local community free-to-air channels, “or for those national or regional channels the Council has characterized, by resolution, as cultural or educational.”²⁰⁹⁴
     

136. 
     In terms of the impact of the change in technology on community television stations that broadcast before the switch to digital, the Special Rapporteurs have stated that “measures should be taken to ensure that digital transition costs do not limit the ability of community broadcasters to operate,”²⁰⁹⁵ and even that States should “ensure that community and local broadcasting services are able to continue through and after the digital terrestrial transition.”²⁰⁹⁶
     

137. 
     As indicated earlier, among the measures adopted toward that end, States might consider the approval of public funding to support access to the infrastructure needed to transmit digital signals; tax incentives or accessible loans; and the establishment of must-carry rules so that other digital television license holders or operators of transmission networks have to carry community broadcast signals, at accessible and non-discriminatory prices or at no cost.
     

138. 
     In addition, in their Joint Declaration on the Protection of Freedom of Expression and Diversity in the Digital Terrestrial Transition, the UN, OAS, OSCE, and ACHPR Special Rapporteurs for Freedom of Expression point to various measures that should be considered to ensure that community television stations can make the transition:
     

“(i) Allowing certain types of broadcasters—in particular low power local and community services—to continue to distribute via analogue terrestrial signals, insofar as this is consistent with international standards. (ii) Allowing certain types of broadcasting services to be provided without a licence in certain designated spectrum bands. (iii) Regulatory measures to reduce and/or spread the costs of digital terrestrial dissemination, for example by prescribing shared or otherwise more efficient distribution networks. (iv) The provision of subsidies or other forms of support to assist community and local broadcasters to obtain the necessary equipment to be able to distribute their terrestrial signals digitally, provided that subsidies should be allocated by an independent body, based on objective criteria. (v) Measures to use the resources generated by the digital dividend to defray infrastructure costs.”²⁰⁹⁷

139. 
     Both Uruguay and Argentina have approved regulations so that State-owned telecommunications companies and public television operators can share their infrastructure with community stations and even commercial broadcasters and other public broadcasting signals. The Uruguayan public telecommunications company is authorized “to provide access to transmission infrastructure to license holders of digital television broadcasting services who do not have such infrastructure available,” such as nonprofit organizations.²⁰⁹⁸ Uruguayan law also provides for shared use of a channel among several community or nonprofit organizations, to facilitate access by social enterprises that lack the financial capacity to make use of a channel of their own. The transmission equipment and antenna are provided by the Ministry of Education and Culture (MEC), and access to the use of the shared frequency is implemented via public competitions that are open to proposals for community programming.²⁰⁹⁹
     

7. 
   Promotion and Strengthening of Public Digital Television
   

140. 
     States should ensure that public television has an essential role in the new digital environment.
     

141. 
     Public service television has a different purpose than purely commercial or political television, as it operates independently of those who handle economic or political power. The role of public service television is to promote the values of democratic societies, in particular respect for human rights, cultures, and political pluralism and the protection of human dignity and minority rights.²¹⁰⁰
     

142. 
     Toward that end, as the Office of the Special Rapporteur has already reaffirmed, public television should be universally accessible.²¹⁰¹ It should also be universal in terms of content, ensure editorial independence and impartiality, offer quality programming to all groups in society, and be responsible to the public. Public service media should offer news, information, and educational, cultural, and entertainment programs that appeal to people’s different interests.²¹⁰²
     

143. 
     The Office of the Special Rapporteur has also observed that the mandate for public service radio and television must be established clearly by law. This law should ensure: (1) the independent or non-governmental nature of the public media system; (2) programming aspects geared toward the public interest; (3) that the public media system is free of charge; (4) coverage throughout the State's territory; and (5) the regulation of its form of financing.²¹⁰³
     

144. 
     The Office of the Special Rapporteur has also emphasized that for public media really to be able to perform their role, “they must be independent of the executive branch; truly pluralistic; universally accessible; with funding adequate to the mandate provided for by law; and they must provide community participation and accountability mechanisms at the different levels of content production, distribution and receipt.”²¹⁰⁴
     

145. 
     The digitalization of public television signals poses a significant challenge for this sector, as it can provide both an opportunity to better meet its obligations and a risk to its continued ability to provide services, if adequate, timely measures are not taken.
     

146. 
     In this regard, even though a number of statements have emphasized that public service broadcasters will continue to play an important role in promoting diversity in the new digital environment, the Special Rapporteurs for Freedom of Expression have expressed their concern “about the growth of a number of threats to the viability of public service broadcasting in different countries, which undermine its ability to fulfil its potential to contribute to media diversity.”²¹⁰⁵
     

147. 
     In light of that, regulations should not simply recognize public television but also ensure that it can continue to broadcast in the new digital environment. They should foster a legal environment and active public policies with appropriate, simplified mechanisms so that public broadcasting stations can make the transition to digital television quickly and effectively, as well as take advantage of the change in technology to expand, improve, and diversify the services they provide to the public.
     

148. 
     To do that, States should adopt special measures “to protect and preserve public service broadcasting in the new broadcasting environment” and “a clear plan for switchover that promotes, rather than limits, public interest broadcasting.”²¹⁰⁶ They should ensure that “independent public service broadcasters are able to continue to distribute their existing services terrestrially through and after the digital transition (and that any government or State broadcasters are transformed into public service broadcasters).”²¹⁰⁷ The Special Rapporteurs for Freedom of Expression recommended that States include measures to ensure that independent public service broadcasters “have the necessary legal, technological, financial and organisational resources for this. Where necessary, special financial or other measures may be needed to ensure that public service broadcasters are able to obtain or use the necessary equipment to disseminate their signals digitally.”²¹⁰⁸ UNESCO, for its part, has proposed automatically granting licenses to public service stations for digital broadcasting.²¹⁰⁹
     

149. 
     Along these lines, various organizations in Europe, such as the European Parliament, have made recommendations as to how public broadcasters can fulfill their mission and develop in the new digital environment.²¹¹⁰ For its part, the Committee of Ministers of the Council of Europe has proposed a number of principles to be taken into account by the member countries in their national plans for implementing digital television. One of those principles indicates that Member States “should create the financial, technical and other conditions required to enable public service broadcasters to fulfil this remit in the best manner while adapting to the new digital environment.”²¹¹¹
     

150. 
     One interesting initiative is being studied in Brazil, where plans are reportedly underway to implement a digital network to carry Brazilian public television signals, financed by the public budget but administered by a private network operator. The project, called the National Digital Public Television Network (RNTPD), will aim to facilitate a shared infrastructure so that public broadcasting agencies can broadcast on a shared network.²¹¹²
     

151. 
     For its part, Mexico’s Public Broadcasting System (SPR) has a public network of retransmission antennas “strategically located throughout the length and breadth of the country, providing the possibility for audiences to have access to more public television channels.”²¹¹³ The SPR administers 16 frequencies with multiple programming; it broadcasts its own digital signal but also carries the signals of a number of public and university channels, which has enabled these stations’ coverage to expand to 56 percent of the population.”²¹¹⁴
     

152. 
     As indicated earlier, another appropriate measure is the establishment of must-carry rules so that operators of public or private free-to-air television networks or operators of subscription television carry public signals free of charge. On this point, the Council of Europe has found that in the transition to digital television, “the must-carry rule should be applied for the benefit of public service broadcasters as far as reasonably possible in order to guarantee the accessibility of their services and programmes via these platforms.”²¹¹⁵ The European Parliament has also expressed itself along these same lines, in welcoming “the implementation in certain Member States of provisions requiring cable television providers to include state-run channels and to allocate a section of the digital spectrum to public providers.”²¹¹⁶
     

153. 
     In this regard, Brazil’s 2011 Conditional Access Service Law, which establishes rules for subscription television in all its forms, provides that public digital signals, both for terrestrial and satellite services, must be carried free of charge.²¹¹⁷ In Mexico, all operators of pay television are required to retransmit the public television signals of federal institutions, including universities.²¹¹⁸ In Hungary, as well, legislation requires network operators to carry public television signals.²¹¹⁹
     

154. 
     The challenges of digitalization mean that public broadcasters must have adequate budgets, both for infrastructure investments—for the switch from analogue transmission and the costs of new audiovisual digital production and diversification of content—and for the eventual addition of new public broadcast signals that add diversity to non-commercial offerings.
     

155. 
     Accordingly, the Office of the Special Rapporteur has said that “the State must ensure that these media have sufficient and stable public funds,” as adequate funding not only ensures that public broadcasters can fulfill their mandate but also “is a guarantee against the arbitrary interference of the public and private sectors.”²¹²⁰ The Special Rapporteurs for Freedom of Expression have also stated, “Innovative funding mechanisms for public service broadcasting should be explored which are sufficient to enable it to deliver its public service mandate, which are guaranteed in advance on a multi-year basis, and which are indexed against inflation.”²¹²¹
     

156. 
     For its part, the European Parliament has also addressed this issue, urging the application of “a broad understanding of the remit of public service broadcasters…, in particular with regard to an unconstrained participation of public service broadcasting in technological developments and deriving forms of content production and presentation (in the form of both linear and non-linear services); whereas this should also include adequate funding for new services as part of the public service broadcasting remit.”²¹²² The Committee of Ministers of the Council of Europe recommends that “member states should give public service broadcasters the possibility of having access to the necessary financial means to fulfil their remit.”²¹²³
     

157. 
     Thus in Colombia, for example, Law 1.507 of 2012 created the Fund for Television and Content Development (FONTV), at least 60 percent of whose resources must be earmarked for the development and strengthening of public television, both to produce content and to ensure national operations and coverage. Its budget comes from tariffs, fees, and rights that private television operators must pay for the concession and use of the spectrum, with part of its revenues generated by the new allocation of frequencies freed up after the analogue switch-off.²¹²⁴ FONTV is managed by the National Television Authority (ANTV) and includes support for production and transmission of public-interest content developed by nonprofit educational and cultural operators.²¹²⁵
     

158. 
     Support for the digital transition of the public airwaves should be accompanied by greater obligations and responsibilities than those for other television media, particularly with respect to helping to meet the objectives of universal access to gratis free-to-air television signals for the entire country. As the Office of the Special Rapporteur has already stated, “the system of public radio and television channels must strive to be free and reach the State’s entire territory in order to guarantee the rights to freedom of expression and access to information for all people under its jurisdiction, without discrimination based on social, economic or geographic conditions.”²¹²⁶
     

159. 
     Argentina has made significant investments to ensure national coverage of public broadcasting throughout the country. Since 2010, it has developed a public network for carrying digital television signals, called the National Platform for Digital Terrestrial Television, which is administered by the State-owned telecommunications company Empresa Argentina de Soluciones Satelitales S.A. (AR-SAT).²¹²⁷ Through 82 repeater antennas throughout the country, called “digital transmission stations” (Estaciones Digitales de Transmisión, EDT), 82 percent of the population is covered²¹²⁸ and a number of public broadcast signals are carried, along with commercial television signals being broadcast on an experimental basis.²¹²⁹ In order to increase coverage, “digital satellite television” (Televisión Digital Satelital, TDS) was also created, a system which broadcasts and receives television signals transmitted from an AR-SAT communications satellite.²¹³⁰
     

160. 
     Colombia also approved plans to provide—for the first time, thanks to the entry of digital television—100 percent coverage in the country for public free-to-air television, via an expansion of its public broadcasting network.²¹³¹
     

161. 
     In Europe, there are a number of similar cases, in which access to digital channels has been facilitated for public media, but they in turn have stringent requirements for service coverage. Slovenia public television (RTV SLO), for example, was granted automatic access to an entire channel, but when it was awarded its license it was required to provide coverage to 95 percent of the population with its digital signals and to allow its infrastructure to be used by other operators.²¹³² In Spain, Radiotelevisión Española was automatically given the same two channels it already had in the analogue environment, and it expanded its offering to eight signals, but it was required to cover up to 98 percent of the population by the time of the analogue switch-off.²¹³³
     

8. 
   Universal Access to Digital Television Services
   

162. 
     In many countries in the region, gratis free-to-air television continues to be the main means of receiving information and entertainment. The arrival of digital television expands the quantity and quality of these services; that can lead to a significant increase in the information and opinions people receive—especially those who do not have the financial means to pay for subscription TV services.
     

163. 
     However, digitalization of TV signals implies changes in usage patterns, as well as costs and investments for the families who receive these services. Being able to take full advantage of the democratizing potential of the new digital technology depends on the effective capacity of the entire population to access equipment that can receive digital TV signals; to be fully informed about how to make the technological change and what the cost of doing that is; and to acquire the appropriate knowledge and skills to use the technology effectively.
     

164. 
     To that end, States should consider free-to-air television as an essential service that should be universal. Everyone—particularly families of lower economic means and from areas located far from urban centers—should be able to receive television services, at least a basic package or public TV signals. Regulations and implementation plans should include, among other things, measures such as maintaining free-to-air television services at no cost for the entire population and guaranteeing national coverage for public television signals, even supplementing terrestrial broadcasts with free-to-air satellite services.
     

165. 
     Along these lines, the UN, OAS, OSCE, and ACHPR Special Rapporteurs have indicated that “States should put in place measures to limit the cost to end users of the digital terrestrial transition, specifically with a view to limiting the number of individuals and households which are unable to afford to make the transition and to ensuring that these costs do not lead to a ‘digital divide’ between those who can afford to access new services and those who cannot.” Such measures, they said, may include: “(i) The imposition of technical standardisation to lower the production costs of devices such as set top boxes (STBs). (ii) Regulatory measures to ensure the interoperability and compatibility of reception, decoding and decryption devices. (iii) Subsidy programmes for poorer households. (iv) Appropriate trade-offs between, and technological solutions for, meeting the interests of better and less well-off end users.”²¹³⁴
     

166. 
     Addressing the issue of subsidies for digital terrestrial television, the European Commission recognized that “the digital switchover may be delayed if left entirely to market forces and that public intervention can be beneficial, through for example regulation, financial support to consumers, information campaigns or subsidies to overcome a specific market failure or to ensure social or regional cohesion.”²¹³⁵ It gave specific indications of acceptable forms of public support for the digital switchover within the European legal system, based on respect for the principles of transparency, necessity, proportionality, and technological neutrality. The forms of support it listed include: “funding for the roll-out of a transmission network in areas where otherwise there would be insufficient TV coverage; financial compensation to public service broadcasters for the cost of broadcasting via all transmission platforms in order to reach the entire population, provided this forms part of the public service mandate; subsidies to consumers for the purchase of digital decoders as long as they are technologically neutral, especially if they encourage the use of open standards for interactivity; financial compensation to broadcasters which are required to discontinue analogue transmission before the expiry of their licences, provided this takes account of granted digital transmission capacity.”²¹³⁶
     

1. 
   Universal Access to Digital TV Receivers
   

167. 
     States should include appropriate measures such as the creation of public funds, tax incentives, and total or partial subsidies to low-income families, among other measures, to encourage access to digital television receivers.
     

168. 
     As mentioned earlier, in their Joint Declaration the Special Rapporteurs for Freedom of Expression warned of the risk that less advantaged segments of the population may be affected by diminished access to broadcasting services.²¹³⁷ There is even a risk that in some countries of the region the analogue switch-off means that less advantaged segments will end up with no access to one of the only types of media they have available, free-to-air television. Because of that, many countries have implemented plans for total or partial subsidies, or loans for the purchase of set top boxes.
     

169. 
     A number of relevant good practices stand out in the Americas. For example, the United States adopted program which provided up to two $40 coupons to some families toward the purchase of TV converter boxes. A government fund of up to $990 million was earmarked for the purchase of the equipment.²¹³⁸
     

170. 
     Meanwhile, although concrete implementation plans have yet to be carried out, all revenues collected by ANTV of Colombia for television service licenses are allocated by law “to support the technological modernization process for low-income users to receive digital terrestrial television broadcasts.”²¹³⁹ The State is reportedly studying plans to ensure universal access to digital television via satellite services known as “DTH Social” (the acronym stands for “direct to home”), with the aim of covering households that do not currently have analogue television service due to geographic reasons or a lack of coverage by terrestrial stations.²¹⁴⁰
     

171. 
     Argentina has made a significant investment to provide more than one million set top boxes, at no charge, as part of a universal access policy called the “My Digital TV” Operational Access Plan.²¹⁴¹ The plan specifically aims to help families and organizations from the poorest segments of society.²¹⁴² Through 2013, more than 1.2 million devices to receive terrestrial TV signals had been handed out. In addition, digital satellite television antennas were installed in 12,000 rural and border-area schools and 5,000 in rural areas.²¹⁴³
     

172. 
     Europe also has some interesting examples of plans to facilitate access to digital receiver equipment. Serbia’s digital television strategy provided that the cost of buying receivers would be guaranteed by the State; a budget of around €120 million was estimated for total or partial subsidies needed, or €25-€50 per household.²¹⁴⁴ Italy, for its part, developed various policies to assist in the purchase of receivers, ranging from direct subsidies for senior citizens from the lowest-income households to tax deductions of up to 20 percent of the price of the equipment (converter boxes or TV sets with integrated tuners), up to a maximum €200 deduction per piece of equipment, with a budget of €40 million.²¹⁴⁵
     

173. 
     Spain also implemented active assistance policies, providing 150,000 receivers to seniors over 80 years old or over 65 with a high degree of dependence, or to people with a more than 33 percent hearing or visual impairment. It also created an assistance fund geared toward communities at risk of exclusion (Plan de Apoyo a Colectivos con Riesgo de Exclusión), to install satellite receivers in mountainous areas that lacked terrestrial TV coverage.²¹⁴⁶ Meanwhile, the United Kingdom established the Digital Switchover Help Scheme, a fund managed by the BBC to provide assistance to people aged 75 or older, those who have lived in a care home for six months or more, or people who have severe disabilities and those who are blind or partially sighted. The program provided equipment to decode digital television signals, as well as installation, for an affordable cost of ₤40 for the equipment and service, or free for people who participate in government-run social programs because of their economic circumstances.²¹⁴⁷
     

2. 
   Accessibility of Digital TV Services
   

174. 
     States should include regulations and incentives to ensure that digital television is inclusive and accessible to everyone. The new digital technology facilitates the use of devices, services, and applications that make audiovisual content accessible to persons with hearing and visual disabilities.
     

175. 
     In the context of promoting “low-cost technologies that are widely accessible […] with a view to ensuring broad access to new communications platforms,”²¹⁴⁸ the Special Rapporteurs have stressed that “due priority” should be given to “the potential of digital broadcasting to improve access for people with hearing and visual disabilities,”²¹⁴⁹ by exploring and promoting appropriate technological solutions. They have also stated that “support services, including electronic programme guides, should be available in user-friendly and non-discriminatory formats, including availability in different languages spoken in the coverage area.”²¹⁵⁰
     

176. 
     The European Commission has noted, on this point, that the switchover to digital television also has “the potential to contribute to better serve the specific needs of older people and of people with disabilities by providing assistive services such as improved subtitling, audio commentary and signing. Attention should be given to the inclusion of accessibility requirements in the user interface e.g. EPGs (electronic programming guides) and receivers.”²¹⁵¹
     

177. 
     Legislation approved in Spain, meanwhile, provided that all necessary measures would be adopted to ensure accessibility by persons with disabilities.²¹⁵² Uruguay provided that new contracts for digital TV license would require operators, in return for the use of the broadcast spectrum, to “progressively provide accessibility for persons with visual and hearing disabilities to all or part of the services offered, based on the binding communications plan.”²¹⁵³
     

178. 
     In addition, as has been indicated, States should ensure that all people and social groups, including minorities and disadvantaged groups, have universal access to digital public service broadcasting through various technological means. Vulnerable groups should be given support to obtain access to the necessary receiver equipment.²¹⁵⁴
     

3. 
   Analogue Switch-Off and Non-Exclusion
   

179. 
     The transition to the analogue switch-off should respect the principle of universal coverage and free access to digital public television for all citizens. Toward this end, the date for disconnecting analogue television services should be established very carefully, so that no segment of the population is excluded from digital terrestrial television. The switch-off date should take into consideration the potential for universal access and take steps so as not to alter this goal. Rigid deadlines, therefore, should not be established, and appropriate indicators should be included on effective penetration and public access to digital television signals.²¹⁵⁵
     

180. 
     As has been observed, at least the public television system should reach the State’s entire territory in order to guarantee the rights to freedom of expression and access to information for all people under its jurisdiction, without discrimination based on social, economic, or geographic conditions.²¹⁵⁶
     
181. 
     Along these lines, the Special Rapporteurs for Freedom of Expression maintain that “States should make an effort to ensure that, by the time the switch-off takes place, the geographic reach of digital services is, overall, at least comparable to and preferably greater than the reach of pre-existing analogue services.”²¹⁵⁷
     

4. 
   Information and Outreach for the Digital Transition
   

182. 
     Technological change also requires States to carry out active information and educational campaigns concerning the purchase and proper use of new equipment, throughout the entire process of implementing digital television. This campaign should be intensified in the final stages of analogue, so that no household is left out. An appropriate information campaign explaining how to use the new technology will significantly help to accelerate the process of implementing digital television. These obligations include the protection both of people’s right to access information and of consumers’ rights vis-à-vis the companies operating in the television market.
     

183. 
     Plans for educating and informing the public should include information about how the new service will be delivered, as well as the technical features of the new receivers; the conditions in which the equipment should be produced and sold on the market, to ensure continuous signal reception; and basic guidelines to help users access the new services.
     

184. 
     In this regard, the UN, OAS, OSCE, and ACHPR Special Rapporteurs have indicated that “States should create and support a multi-strand public educational outreach programme throughout the digital transition process to ensure that users are aware of the process and of what they need to do to prepare for it, and have at least the basis technical knowledge they need.” The Rapporteurs noted that such a campaign should give consideration to: “(i) Special outreach efforts to ensure appropriate information is provided to hard-to-reach users. (ii) Special outreach efforts to ensure that users who may be technologically challenged—for example elderly or rural users—have the knowledge and understanding they need. (iii) Support programmes, such as call centres or training programmes, for people who need help. (iv) More intensive outreach as the analogue switch-off approaches.”²¹⁵⁸
     

9. 
   Transparency, Social Participation, and Roles of State Agencies
   

1. 
   Transparency and Participation in the Process
   

185. 
     States should adopt measures and procedures to ensure that the entire process is transparent and to enable everyone involved—not just businesses from the broadcasting sector, but also civil society organizations—to participate in the process of drafting regulations and policies on digital television. Such consultations should cover everything from technical aspects to critical strategic regulatory decisions, as well as plans for implementing the new services.
     

186. 
     Along these lines, the Special Rapporteurs for Freedom of Expression have indicated that States “should ensure that decision-making processes relating to the digital terrestrial transition take place in a transparent and fully consultative manner, allowing for all stakeholders and interests to be heard. One option here is to create a multi-stakeholder forum to oversee the consultative process.”²¹⁵⁹ Likewise, the OSCE Representative on Freedom of the Media has stated, “The digitalization strategy should not be drafted and adopted as a result of closed-door negotiations between the businesses and the government, but be under constant scrutiny of a wide public discussion to guarantee the pluralism of broadcasting services and public access to an enlarged choice and variety of quality programmes.”²¹⁶⁰
     

187. 
     There should also be participation by society and by business in the implementation phases and in promotion and outreach activities associated with digital television.
     

188. 
     In Uruguay, citizen participation with regard to digital television included public consultations in 2011, prior to the approval of the specific regulatory framework.²¹⁶¹ The implementation plan also provides for the creation of a “Consultative Forum on Digital TV” to track the digital transition.²¹⁶²
     

189. 
     For its part, Colombia’s National Television Commission held 13 forums in different regions of the country in 2009, with close to 4,000 people in attendance. In 2010, it aired special TV programs on the implementation process for digital terrestrial television in Colombia.²¹⁶³
     

190. 
     The first draft of Hungary’s digital TV strategy was put to public consultation for one month, beginning in October 2006, before the government turned it into the National Strategy for Digital Switchover.²¹⁶⁴
     

191. 
     Several countries around the world have created specific agencies for publicizing, tracking, and supporting the digitalization process. This has happened, for example, in the United Kingdom, with the nonprofit organization Digital UK,²¹⁶⁵ and in Spain, with the association Impulsa TDT, ²¹⁶⁶ where the main operators involved -though not civil society- developed the 2005 Technical Plan for Digital Terrestrial Television.²¹⁶⁷
     

192. 
     The principle of government transparency in these matters should be expressed in terms of the most comprehensive and accurate information on regulatory processes—such as the process of granting authorizations to providers of digital TV services—as well as information concerning owners or license holders. Information should also be available concerning the allocation, use, and availability of the broadcast spectrum and plans for managing it, particularly the part of the spectrum allocated for free-to-air television services. This information is extremely necessary when considering the real possibility of opening up to new television operators or establishing set-asides for different types of media outlets.²¹⁶⁸
     

2. 
   Characteristics of State Agencies
   

193. 
     Institutions related to the implementation of digital television should be designed to meet the standards and recommendations that apply to all broadcasting services, which have been recognized by the IACHR and the Office of the Special Rapporteur on numerous occasions. Among other things, the characteristics and roles of the various State players in the process must be clearly defined, both in terms of the preparation, approval, implementation, and oversight of regulations and public policies for the transition process and in terms of actual digital television services.²¹⁶⁹
     

194. 
     States have the legitimate authority to define policies for the sector based on the general interest, in a way that is transparent and participatory, following legitimate aims and principles, and in the context of fully respecting and promoting freedom of expression, so that their actions are compatible with the American Convention. Nevertheless, the IACHR and the Office of the Rapporteur have stressed that regulatory agencies in charge of enforcement and oversight over broadcasting legislation should be independent of both government and economic interests. In this regard, the Office of the Rapporteur has indicated that the enforcement and oversight agency “must be a deliberative body that ensures plurality in its composition. It must be subject to clear, public and transparent procedures, as well as to the imperatives of due process and strict judicial review. Its decisions must be public, in accordance with existing legal norms, and adequately justified. Finally, the body must be accountable for and give public account of its activities.”²¹⁷⁰
     

195. 
     The Special Rapporteurs for Freedom of Expression have stated, “While key policy decisions regarding the digital terrestrial transition need to be taken by government, implementation of those decisions is legitimate only if it is undertaken by a body which is protected against political, commercial and other forms of unwarranted interference, in accordance with international human rights standards (i.e. an independent regulator).”²¹⁷¹
     

196. 
     This recommendation is particularly significant considering that several countries in the region do not have these types of agencies in terms of structure and areas of competence. There are some exceptions, such as the case of Chile and its National Television Council (CNTV)²¹⁷² and Mexico, with the Federal Telecommunications Institute (IFT).²¹⁷³
     

197. 
     Regulatory agencies should, moreover, have the budget, resources, capabilities, and authority to provide effective oversight and enforcement, particularly to monitor and apply appropriate sanctions to prevent undue media concentration.²¹⁷⁴ In this regard, the Special Rapporteurs for Freedom of Expression have stated, in their Joint Declaration on the Protection of Freedom of Expression and Diversity in the Digital Terrestrial Transition, that “regulators should have the necessary mandate and resources—in terms of human and technological capacity, and monitoring and enforcement powers—to implement core policy decisions.”²¹⁷⁵
     

1. 
   Introduction
   

1. 
   The Office of the Special Rapporteur has reiterated that the right to access to information is an autonomous right protected under Article 13 of the American Convention. It is a fundamental right for the consolidation, operation, and preservation of democratic systems, and it plays an essential role in the exercise of rights.²¹⁷⁶
   

2. 
   The scope and content of this right has been developed extensively in the Inter-American System.²¹⁷⁷ With respect to the matter, the Inter-American Court has recognized that freedom of thought and expression include “not only the right and freedom to express one’s own thoughts, but also the right and freedom to seek, receive and impart information and ideas of all kinds.” In this regard, it has also held that the right to access to information “protects the right of the individual to receive such information and the positive obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the [American] Convention, the State is allowed to restrict access to the information in a specific case. The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied.”²¹⁷⁸
   

3. 
   Given its significance in the consolidation, operation, and preservation of democratic systems, the right to access to information has been addressed by the OAS Member States at its General Assembly, which has given the Office of the Special Rapporteur its mandate to continue monitoring the issue, and has urged the States to “to respect and promote respect for everyone’s access to public information and to promote the adoption of any necessary legislative or other types of provisions to ensure its recognition and effective application.”²¹⁷⁹ In this context, the adoption by OAS General Assembly of the Model Inter-American Law on Access to Public Information and its Implementation Guide,²¹⁸⁰ in accordance with the international standards attained in the field, is of particular note. The Office of the Special Rapporteur was part of the group of experts appointed to discuss, edit, and finalize these documents adopted by the General Assembly.
   

4. 
   Over the last decade, a significant number of the region’s countries have passed laws on access to public information or enacted reforms to the existing legal framework for the defense of this right. In following this development and the express mandate from the General Assembly on this issue, the Office of the Special Rapporteur has drafted reports setting forth the inter-American standards and systematizing the inter-American case law and doctrine on access to information.²¹⁸¹ In addition, this office has produced comparative studies of the content of the laws of different Member States and has systematized the decisions of the courts and specialized bodies that have promoted the standards on access to public information in the domestic legal system of each State.²¹⁸²
   

5. 
   This chapter is a continuation of this practice, in fulfillment of the mandate of the Office of the Special Rapporteur to monitor the situation of the right to access to public information in the region and to highlight best practices in the field. As in other annual reports, this type of study aims to contribute to the positive dialogue between the OAS Member States and the bodies of the system, and to the promotion of the best legal and policy frameworks that exist.
   

6. 
   In this report, the Office of the Special Rapporteur describes the regulatory framework and institutional design of some of the guarantor bodies established in the region to supervise and promote the implementation of the laws on access to public information and the adjudication of disputes related to the disclosure of information. This time, the Office of the Special Rapporteur presents a description of the most important aspects that characterize the guarantor bodies or specialized entities that handle matters concerning access to information in Brazil²¹⁸³, Canada, Chile, Colombia, El Salvador, United States, Honduras, Jamaica, Mexico, and Uruguay.²¹⁸⁴
   

2. 
   The creation of specialized guarantor bodies and the proper implementation of the laws on access to information in the Inter-American System
   

7. 
   The Office of the Special Rapporteur has asserted that a fundamental aspect of the proper implementation of the OAS Member States’ regulatory frameworks pertaining to access to information lies in the establishment of a specialized administrative body created to oversee the enforcement of the law and to resolve the disputes that arise between the right to access to public information and the State’s interest in protecting certain information on the basis of the limitations established by law.
   

8. 
   Indeed, this office has on numerous occasions underscored the right of individuals to a remedy that is simple, easy to access and that its exercise only demands the fulfillment of basic requirements, effective, quick, free or have a low cost enough so as not to discourage request for information, and that allows them to challenge the decisions of public officials that deny the right of access to specific information or simply fail to answer the request. ²¹⁸⁵
   

9. 
   The Office of the Special Rapporteur has also stated that in order to fully satisfy society’s needs of access to information and create a culture of transparency in the long term, the States not only must provide simple and prompt remedies free of charge in order to challenge denials of access to information, but also must properly implement the legal provisions on access to information. The Office of the Special Rapporteur has stated that this obligation entails at least the following types of actions: (a) design a plan for the implementation of access to public information and the respective budget; (b) adopt rules, policies, and practices that facilitate the proper preservation and administration of information; (c) educate and train the public servants responsible for satisfying the right to access to public information in each one of its facets; and (d) carry out systematic campaigns to disclose to the general public the existence and the means for exercising the right to access to information.²¹⁸⁶
   

10. 
    To develop these objectives and attain the effective satisfaction of this right, the Office of the Special Rapporteur has recognized that it is essential to create an autonomous and specialized supervisory body responsible for promoting the implementation of the laws on access to public information and for reviewing and adjudicating government denials of requests for information.²¹⁸⁷ Comparative experience and practice have demonstrated the importance of having this type of independent and specialized authority within the different legal systems to prevent the dilution of efforts to enforce the laws on access to public information. The foregoing, of course, is without prejudice to the timely judicial oversight of decisions that deny access to information. In this respect, in order to strengthen the institutional supervisory structure for the implementation of laws on access to public information, the Office of the Special Rapporteur has urged the States to bring their laws into line with the highest standards on the matter, such as those recognized by the OAS General Assembly in Resolution AG/RES. 2607 (XL-O/ 10) adopting the “Model Inter-American Law on Access to Public Information.”²¹⁸⁸
    

11. 
    Indeed, the Model Inter-American Law on Access to Public Information and its Implementation Guide provide for the creation of an Information Commission responsible for the effective implementation of the law.²¹⁸⁹ In this respect, the Implementation Guide to the Model Law underscores the importance of having a supervisory body that is capable of creating uniform public information policies for all of the agencies subject to the law, and that also has the authority to coordinate the efforts of different departments, train human resources, raise public awareness, identify and disseminate best practices, advise public servants, and develop mechanisms to facilitate the management of requests for information.²¹⁹⁰
    

12. 
    This Information Commission, in addition to implementing the law and public policies on transparency and access to information, must have the power to “review any information held by a public authority, including through on-site inspection.”²¹⁹¹ Similarly, the review mechanisms must be independent of political influence, accessible to requesters without the need for legal representation, without overly formalistic requisites, timely and, preferably, specialized. The Implementation Guide provides that such body will operate more effectively if it has been created by law, is specialized, and has sufficient human and financial resources to perform its duties.
    

13. 
    The Inter-American System’s promotion of the right to access to public information has changed the scenario for the right to access to information in the hemisphere. Many countries have enacted laws and policies on access and transparency: a total of 22 countries in the Americas have passed public information access laws, and to different extents have either created entities to develop and enforce this right or given existing bodies the power to protect and guarantee it.²¹⁹²
    

14. 
    The variety of institutional designs is related to the degree of independence and autonomy of the agency, its composition and mechanisms for the appointment of its authorities, its powers or duties to guarantee access to information, the accessibility of its mechanisms, and its efficiency in settling disputes.
    

15. 
    Indeed, as discussed in this report, in some States the laws provide for a specialized mechanism for the guarantee of the right to access to information before an autonomous, independent, and specialized administrative agency; in other places, the law provides for the creation of specialized administrative agencies that do not issue binding decisions, or assign the defense of this right to authorities such as the Ombudsman of the People or Office of the Attorney General as part of their duties.²¹⁹³
    

16. 
    In short, the countries of the Americas have begun to develop—slowly and laboriously—a community of public entities for the promotion and protection of access to public information.²¹⁹⁴ The paragraphs below provide descriptive information on the design and practices of several such supervisory bodies in the hemisphere, in terms of their features, powers, and duties that are considered key to the effective exercise and enforcement of the right to access to information, such as: the independence and autonomy of the bodies; their composition and mechanisms for the appointment and removal of their authorities; the duties they perform; the mechanisms they have developed to manage requests, monitor compliance with transparency obligations, compile statistics, and to classify and declassify information.
    

3. 
   Independence and autonomy of specialized entities
   

17. 
    The Implementation Guide for the Model Inter-American Law on Access to Public Information recognizes that independence is essential for the success of entities such as the Information Commission. In this regard, it states that “A series of factors may determine the real (or perceived) independence of this office and its officers, including the manner of selecting the Commissioners, their term limit and procedures for dismissal, from which branch of government they receive their powers and to whom they report, and the autonomy in budgeting.”²¹⁹⁵
    

18. 
    Indeed, the independence and autonomy of an entity can be evaluated according to both external and internal factors. The external factors concern the manner in which the body has been created and established or the way in which its mandate to supervise and enforce the access to information laws was granted. It concerns the characteristics conferred upon the body prior to its operation, at the time it was established or received its mandate. One of these aspects is the legal basis and operational autonomy conferred upon the entity. In this regard, the instruments of the Inter-American System provide that “Regardless of which system is selected, it is vital that the oversight body or unit enjoy a statutory mandate.”²¹⁹⁶
    

19. 
    Among other external aspects to consider are the body’s position within the organizational flow chart and its geographic coverage, the rules for the selection and removal of its authorities, and the existence of rival organizations—that is, organizations that may challenge the body’s performance of its duties.
    

20. 
    The internal characteristics are related to the actions taken by the organization once its members have been selected. From this perspective, the body’s independence and autonomy will depend upon the budget it receives for its activities, the staff it has to perform its duties, and the degree of specialization of its staff.
    

1. 
   Legal basis, legal personality, and operational autonomy
   

21. 
    In Brazil, Public Information Access Law (Law No. 12527)²¹⁹⁷ was enacted in 2011 and the regulations thereto were issued by the Federal Government by decree on 2012.²¹⁹⁸ Both the law and the regulations state that the Office of the Comptroller General (CGU) [Controladoria-Geral da União] is responsible for decisions on remedies and complaints, and for monitoring the implementation of the Public Information Access Law by the Federal Executive Branch.²¹⁹⁹ The Office of the Comptroller General was created by Law No.10.683²²⁰⁰ on 2003 and is the body responsible for providing direct and immediate assistance to the President of the Republic on matters concerning the defense of public assets and increased transparency. The CGU’s fundamental strategic areas include internal oversight; public hearings; inspection; the prevention and fight against corruption, and advocacy.²²⁰¹
    

22. 
    In Canada, the Office of the Information Commissioner²²⁰² was created in 1983 with the enactment of the Access to Information Act.²²⁰³ The entity is headed by a Commissioner with federal jurisdiction and its goal is to assist individuals and organizations who believe that federal institutions have not respected their rights under the Act. The Information Commissioner is an “Agent of Parliament”²²⁰⁴, independent and reports directly to Parliament. The Office of the Information Commissioner investigates complaints about federal institutions’ handling of access requests.²²⁰⁵
    

23. 
    In Chile, Law 20285 on Access to Public Information created the Transparency Council [Consejo para la Transparencia]²²⁰⁶ (CPLT) as “an autonomous public law entity, with its own legal personality and assets” (Art. 31) with the objective of “promoting transparency in government, overseeing compliance with the legal provisions on transparency and the public disclosure of information held by Government bodies, and guaranteeing the right to access to information” (Art.32).²²⁰⁷
    

24. 
    In Colombia, on March 6, 2014, the President of the Republic enacted the Transparency and Access to National Public Information Law.²²⁰⁸ The Transparency and Right to Access National Public Information Act [Ley de Transparencia y del Derecho de Acceso a la Información Pública Nacional] provides that the Public Ministry [Ministerio Público] headed by the Office of the Inspector General [Procuradoría General de la Nación] “is responsible for ensuring proper compliance with the obligations set forth in the law”, and assigns it specific functions to do so. Among these functions, the promotion of the awareness and application of the law; the imposition of disciplinary sanctions; the promotion of government transparency; and the issuance of reports, statistics, and papers regarding compliance with the law. According to the Law, the entities of the Public Ministry will create an “office with all necessary resources” to comply with its functions. On May 8, the Office of the Inspector General [Procuraduría General de la Nación], responsible for enforcing legal provisions, issued Resolution No. 146, which created the group responsible for ensuring compliance with the obligations stipulated in the Law.²²⁰⁹ On September 5, the Transparency and Access to Information Committee was created within the Public Ministry. Some of the functions of this Committee are: to coordinate actions and joint efforts of the Public Ministry in this issue; b) establish an action plan and annual goals for the compliance of the functions assigned to Public Ministry by law; c) monitor and evaluate compliance by the Public Ministry, as well as by those subject to the law²²¹⁰.
    

25. 
    In the case of El Salvador, the Public Information Access Act²²¹¹ created the Institute for Access to Public Information [Instituto de Acceso a la Información Pública]²²¹² as a “public institution with legal personality, its own assets, and administrative and financial autonomy” (Art. 51). According to the Act, the Institute is an independent entity that does not report to any State body, and has national jurisdiction that includes oversight over the three branches of government, “their offices, autonomous institutions, municipalities, and any other entity or body that manages public resources or government assets, or carries out acts of public administration in general” (Art. 7 and 58).
    

26. 
    In the United States, following the 2007 amendment of the Freedom of Information Act (FOIA), the Office of Government Information Services (OGIS) was created as an independent office within the National Archives and Records Administration. This Office serves as a bridge between requesters and agencies. It is said to be “the Federal FOIA Ombudsman.” OGIS responsabilities include the review of policies and procedures of administrative agencies under the FOIA and the compliance with FOIA agencies. Moreover, OGIS can recommend policy changes to Congress and the President to improve the administration of FOIA. This Office may also offer mediation services to resolve disputes between persons making FOIA requests and agencies (non-exclusive alternative to litigation). In this sense, it may issue advisory opinions if mediation has not resolved the issue.²²¹³ The OGIS Director reports to the Archivist of the United States and works with all of the administrative agencies of the Executive Branch. ²²¹⁴ Moreover, the United States also has the Office of Information Policy of the Department of Justice and the Office of Government Information Services. This Office²²¹⁵ is responsible for developing guidance for Executive Branch agencies on the FOIA, for ensuring that the President's FOIA Memorandum²²¹⁶ and the Attorney General's FOIA Guidelines²²¹⁷ are fully implemented across the government, and for overseeing agency compliance with the law. ²²¹⁸
    

27. 
    In Honduras, the Institute for Access to Public Information [Instituto de Acceso a la Información Pública] (IAIP) was created by the Transparency and Access to Public Information Act.²²¹⁹ According to the Act, the Institute is “a decentralized government body with operational, decision-making, and budgetary independence, responsible for promoting and facilitating citizen access to public information, as well as regulating and supervising the procedures of the institutions subject to this law with respect to the protection, classification, and safekeeping of public information in accordance with this Act” (Art. 8). As a decentralized body, the Institute does not report to any other State entity. It has national jurisdiction and the authority to create or set up regional offices in places where there is a proven need for its operation.²²²⁰ Furthermore, on 2014 Presidential Office of Transparency, Modernization, and Reform of the State²²²¹ [Dirección Presidencial de Transparencia, Modernización y Reforma del Estado] was created with the goal of strengthening transparency in institutions through a process of formulating and proposing policies and programs of transparency.²²²² Moreover, according to the law for the Classification of Public Documents related to National Security of 2014, the National Council for Defense and Security²²²³ [Consejo Nacional de Defensa y Seguridad] is responsible for classifying as reserved, confidential, secret and top secret information regarding defense and national security.²²²⁴
    
28. 
    In Mexico, the Federal Institute for Access to Information [Instituto Federal de Acceso a la Información] (IFAI) was created in 2003 by the Federal Transparency and Access to Government Information Act.²²²⁵ In 2010, the entity changed its name to the Federal Institute for Access to Public Information and Data Protection, with jurisdiction to also guarantee the right to the protection of personal data. In February 2014, a constitutional amendment on transparency was enacted which, both broadened and strengthened Mexico’s system for access to information and gave the Institute constitutional autonomy.²²²⁶ One notable characteristic that the IFAI has its autonomy guaranteed in the Constitution. Article 6(A)(VIII) of the Constitution of the United Mexican States now states that “The Federation shall have an autonomous, specialized, impartial, collegial body that has its own legal personality and assets, full technical and management autonomy, decision-making power over budget execution, and the ability to determine its internal organization, that is responsible for enforcing the right to access to public information and the protection of personal data in the possession of parties subject to the law and in the terms established by law.”²²²⁷ The scope of the IFAI-OA’s purview is federal.
    

29. 
    In the case of Jamaica, the Access to Information Unit—which operates within the Office of the Prime Minister—was established to monitor and guide the government in the implementation of the Access to Information Act passed in 2002.²²²⁸ The Unit provides guidance and training for government bodies on how to interpret and administer the Act; identifies and address difficult or problematic issues arising from implementation of the Act; provides policy recommendations on how best these problems may be addressed.²²²⁹ The work of this Unit is complemented by the actions undertaken by the Appeal Tribunal²²³⁰ created in December 2003 for the exclusive adjudication of claims alleging the denial of the right to information. The Access to Information Unit has been mandated to provide logistical and secretarial support to the Appeal Tribunal.²²³¹
    

30. 
    In Uruguay, the Law on the Right of Access to Public Information²²³² also established a Public Information Access Unit [Unidad de Acceso a la Información Pública] (UAIP) within the Agency for the Development of e-Government Management and the Information and Knowledge Society [Agencia para el Desarrollo del Gobierno de Gestión Electrónica y la Sociedad de la Información y del Conocimiento] (AGESIC) responsible for monitoring compliance with the law.²²³³ Law 19.178²²³⁴ granted additional powers to the Unit regarding the authority to declassify information which the classification process does not comply with the provisions set forth in the regulations. The Public Information Access Unit is a decentralized body of the AGESIC, which operates within the sphere of the Office of the President of the Republic. The Unit has technical autonomy and is national in scope.
    

2. 
   Budget
   

31. 
    As stated previously, independence and autonomy can also be evaluated on the basis of its budget sovereignty. In this respect, the Implementation Guide to the Model Inter-American Law asserts that “[…] budget sovereignty is a significant component to overall independence and autonomy. If the Commission is vested with its own line item in the budget, it is less obliged to a specific ministry or agency for proposing and promoting its financial needs. In cases, for example, where an executive branch ministry must submit the Commission’s budget for legislative approval, there is an inherent dependency created with that ‘host’ agency. Fiscal autonomy is afforded in the Model Law by allowing the Commission to present its budget requirements directly to the legislature.”²²³⁵
    

32. 
    In this regard, in States like Canada,²²³⁶ Chile,²²³⁷ El Salvador,²²³⁸ Honduras,²²³⁹ and Mexico,²²⁴⁰ the law gives the specialized supervisory and enforcement agency in charge of overseeing the Access Law the authority to design, present, and manage its own budget. In the case of bodies that do not have such power, the manner in which they manage each fiscal year and negotiate their annual budgets will determine the degree of autonomy they enjoy. In some countries of the region like Brazil,²²⁴¹ Colombia, and Uruguay,²²⁴² the budget of the specialized supervisory and enforcement agency depends upon the State body to which it reports.
    

33. 
    Having a sufficient budget is essential for the orderly management of the body and the discharge of its missions and duties. On this topic, the Implementation Guide states that “The ultimate risks of under-resourcing the program are a lack of credibility in the program and negative public perception of the transparency and openness of government. Lack of resources will also expose the public authority to complaints.” In this respect, the Guide recommends designing a budget that takes account of: the scope of the law, the expected demand of requests, an estimate of the staff requirements to cover this demand, the inclusion of activities designed to enhance the management of information, record-keeping and the use of technology, staff training and organizational capacity-building, and the stipulation of promotional activities.²²⁴³
    

3. 
   Structure of the implementing authority and mechanisms for the appointment of authorities
   

34. 
    As established in the Implementation Guide to the Model Inter-American Law, the selection process and the threshold assents for the appointment of authorities are key to the autonomy, political differentiation, and legitimacy of the body charged with ensuring access to information. Both the selection of authorities and the rules for their removal can help shield the body from political influence. The numerical composition, in the case of collegial bodies, and the duration of the mandate can also be factors in assessing the body’s independence and autonomy.
    

35. 
    According to the Guide, “the Model Law calls for the selection of an odd number of Commissioners – such as five – in order to facilitate voting and to have a sufficient number of Commissioners to diminish potentials for political capture. […]Once appointed, the term of office becomes a key consideration for continuing independence. Periods of appointment are in many respects a balancing act. If term limits are too short, then the Commissioner may be more concerned with pleasing those responsible for subsequent appointments than in serving the duties of his or her post. On the other hand, if terms are too long
    

36. 
    The rules for the removal of a commissioner are one of the most important elements in guaranteeing the continued independence of the Commission. According to the Implementation Guide, in general, “members of the enforcement body should only be suspended or removed ‘for reasons of incapacity or behavior that renders them unfit to discharge their duties.’” Such reasons, as the Model Law provides, may include a criminal conviction or an illness that affects the person’s ability to perform his or her duties.²²⁴⁵
    

37. 
    There are a variety of systems in the region for the appointment and composition of authorities for the monitoring of access to information. The Information Commissioner of Canada is appointed by the Governor in Council after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons. The term of office is 7 years—longer than the duration of an administration—and can be renewed for one term. The Commissioner may be removed from office at any time by the decision of the Governor in Council in consultation with Parliament.²²⁴⁶
    

38. 
    In Chile, the four members of the Directive Council of the Transparency Council are appointed by the President of the Republic upon the assent of a two-thirds majority of the Senate. Their term of office is six years, and they can be reappointed for one additional term only (Art. 36). They can be removed by the Supreme Court at the request of the President of the Republic, a simple majority of the House of Representatives, or at the request of ten members of the House of Representatives (Art. 38).²²⁴⁷
    

39. 
    In Mexico, the IFAI Commissioners are appointed by the Senate, following public consultation and nomination by the parliamentary groups, by a two-thirds majority vote of those members present. The President of the Republic may object to the appointment within ten business days. The commissioners’ term of office is seven years, and they can be removed from their positions by means of impeachment.²²⁴⁸
    

40. 
    In El Salvador, the Institute for Access to Public Information is managed by five commissioners selected by the President of the Republic from short lists of three candidates nominated by different sectors of society: duly registered business associations; duly registered professional associations; the University of El Salvador and private universities duly authorized; duly registered journalists associations; unions authorized by the Ministry of Labour and Social Welfare [Ministerio de Trabajo y Previsión Social] . According to the law, the candidates on the short lists are chosen via a “general assembly” convened by the Executive Branch. The commissioners’ term of office is 6 years, and they cannot be reelected.²²⁴⁹
    

41. 
    In Honduras, the Institute for Access to Public Information is composed of three commissioners elected by the National Congress, through a two-thirds vote of its members. They have a five-year term of office. The members are elected from among candidates nominated by: the President of the Republic; the Attorney General of the Republic; the National Commissioner of Human Rights; National Convergence Forum [Foro Nacional de Convergencia]; and the Superior Court of Auditors [Tribunal Superior de Cuentas]. They have a mandate for 5 years and can only be replaced in the event of legal or physical impossibility, when their actions are incompatible with the nature of the Institute’s duties (Art. 9). The candidates for commissioner are interviewed at public hearings by a committee that includes all of the political parties represented in the National Congress, who present a short list of five candidates to the full session of the Legislative Chamber for the selection of the three commissioners who will head the entity.²²⁵⁰
    

42. 
    Although the Access to Information Unit of Jamaica operates under the Office of the Prime Minister, the Appeal Tribunal is composed through a special selection mechanism. The five members of the Tribunal are appointed by the Governor-General after a series of consultations with the Prime Minister and the leader of the opposition in Parliament. The members of the Tribunal have a 5-year term of office and can be reelected. By law, the members of the Tribunal can be terminated by the Governor-General upon consultation with the Prime Minister and the leader of the opposition in Parliament. They may terminate the appointment of any member of the Tribunal who, among others, becomes of unsound mind or becomes permanently unable to perform his functions by reason of ill health; is convicted and sentenced to a term of imprisonment; is convicted of any offence involving dishonesty; or who fails to carry out the functions conferred or imposed on him by the Act.²²⁵¹
    

43. 
    Uruguay’s Public Information Access Unit is directed by a Executive Committee [Consejo Ejecutivo]conformed by has three members: the Executive Director of the Agency for the Development of e-Government Management and the Information and Knowledge Society [Agencia para el Desarrollo del Gobierno de Gestión Electrónica y la Sociedad de la Información y del Conocimiento] (AGESIC); and two persons appointed by the Executive Branch who can ensure independence of opinion, efficiency, objectivity, and impartiality. The appointed members rotate through the position of President of the Committee. The removal of the members is given by “ineptitude, omission, or the commission of an offense, in accordance with due process guarantees.” The authorities of the Executive Committee are appointed for four years, with the exception of the Executive Director of the AGESIC. The authorities may be reappointed (Art. 19).²²⁵²
    

4. 
   Powers and duties to guarantee access to information
   

1. 
   Authority to resolve disputes
   

44. 
    The evaluation of the entity’s ability to guarantee access to information must consider whether they have specific—not ambiguous—duties and clear jurisdiction vis-à-vis the authority of other bodies. In the case of the guarantor bodies responsible for ensuring access to information, a key point of authority lies in their ability to resolve disputes regarding the provision of information through binding decisions. In this regard, the Inter-American Court has underscored that the State, “guarantee of the effectiveness of an appropriate administrative procedure for processing and deciding requests for information, which establishes time limits for taking a decision and providing information, and which is administered by duly trained officials.”²²⁵³
    

45. 
    In Brazil, the Law on Access to Public Information and its regulations provide that the Office of the Comptroller General [Controladoria-Geral da União] (CGU) is responsible for decisions about appeals and complaints about access to information from the Federal Executive. Prior to going to the Comptroller, the applicant must go to the hierarchically higher authority to the one which refused the access to information. If the superior refuses the access to information, the applicant may appeal the decision to the supreme authority of the agency or entity. Subsequently, the applicant may appeal to the CGU and if it refuses the access to information, he/she may appeal to the Joint Committee on Revaluation of Information (see supra para. 56).²²⁵⁴
    

46. 
    In Canada, the Information Commissioner’s powers include investigating claims (Section 30). For the discharge of this function, the Law grants the Commissioner the authority to summon and require the appearance of individuals before the entity to provide sworn statements or testimony and to produce documents or evidence that the Commissioner deems necessary for the complete investigation and examination of the claim, as well as the authority to access all necessary documents under the control of a government agency during an investigation (Section 36). As an ombudsperson, the Commissioner may not order a complaint to be resolved in a particular way, and therefore his/her recommendations are not binding, though she/he may refer a case to the Federal Court for resolution. After the investigation and the recommendations, any persona who has been refused access to information may aplly to the Court directly (Section 41).²²⁵⁵
    
47. 
    In Chile, the duties of the Transparency Council include monitoring compliance with the provisions of the Access to Information Act and assessing penalties in cases of their violation. The most relevant powers and duties granted to the Council by law include: adjudicating claims alleging government authorities’ refusal to disclose information, promoting transparency, training public servants, keeping statistics, and issuing general instructions on the implementation of transparency and access to information, as well as requiring that government agencies change their procedures and systems for serving the public (Art. 31).²²⁵⁶ Its decisions are binding, although requesters and agencies can file complaints challenging the Council’s decisions to deny access to information before the Court of Appeals in their local jurisdiction (Art 28).²²⁵⁷
    

48. 
    In Colombia, the Law does not assign the Public Ministry [Ministerio Público] or any other especialized entity with responsibility to settle disputes regarding denials of access to information. Article 28 of the Law provides that denials of information can be challenged by individuals through an administrative appeal [recurso de reposición] before the same authorities that adopted the decision. It also provides for judicial review in case of negative decisions. A court or competent administrative judge will handle the case if the reserve invoked to not grant information refers to security and national defense or international relations. This authority within ten days has to decide as sole instance if it refuses or accepts, in whole or in part the request. A judge competent to review request for protection of constitutional rights [juez de tutela] will handle the other cases once the internal administrative appeal [recurso de reposición] is exhausted. The Office of the Inspector General [Procuradoría General de la Nación] is responsible, among other things, for ensuring proper compliance with the obligations set forth in the law, and in so doing, has the power to take preventive action; assess the disciplinary penalties provided for in this law; render disciplinary decisions, in cases involving the exercise of preferential power, in cases of infractions or misconduct derived from the right to access to information.²²⁵⁸
    

49. 
    El Salvador’s Institute for Access to Public Information also has the authority to hear and decide appeals for review filed by requesters, for which it takes binding decisions by a simple majority.²²⁵⁹ The Access to Information Act establishes that “private parties may challenge denials of their claims before the Administrative Disputes Division of the Supreme Court of Justice” (Art. 101). The salvadorian law is clear on the powers of the Institute to enforce the right to information, including in particular: the power to hear and decide appeals, render decisions in sanctions proceedings, and issue administrative sanctions; issue the pertinent precautionary measures in a reasoned decision; resolve disputes relating to the classification and declassification of confidential information, and hear proceedings initiated as a result of the Information Official’s failure to respond (Arts. 58 and 75).²²⁶⁰
    

50. 
    In the United States, the Office of Government Information Services mandate is to offer mediation services to resolve disputes between persons making FOIA requests and agencies. The goal is to identify issues that are ripe for partnership and explore ways to work together to prevent and resolve disputes as well as avoid litigation.The Office may issue advisory opinions if mediation has not resolved the issue.²²⁶¹
    
51. 
    The Institute for Access to Public Information of Honduras is authorized to resolve disputes related to access to public information. Its decisions are binding and can only be challenged through “the amparo in terms of the Constitutional Justice Law” [recurso de amparo en los términos de la Ley de Justicia Constitucional] (Art. 4[15] and 26). This entity also has broad powers related to the implementation of a culture of transparency, including in particular the power to: (a) create manuals and instructions on procedures for the classification, archiving, safekeeping, and protection of public information; (b) support the actions of the national archives with regard to the formation and protection of the Nation’s document collections; (c) establish criteria and recommendations for the operation of the National Public Information System; and (d) conduct promotion and disclosure activities in connection with the right to access to public information (Art 11).²²⁶²
    

52. 
    In Mexico, the IFAI has the power to hear and decide appeals for review filed by requesters. The Consitution states that IFAI’s decisions are “binding, final and not subject to appeal by the entities under the Law.” However, the Legal Adviser to the Government [Consejero Jurídico del Gobierno] “may appeal for review before the Supreme Court of Justice of the Nation in the terms established by law only in the case that such decisions may endanger national security under the law on the issue”. IFAI has jurisdiction over matters decided by counterpart bodies at the state level, as well as over challenges of denials of information adjudicated by other autonomous constitutional bodies and the rest of the authorities of the Union, with the exception of the Federal Supreme Court. It is also authorized to participate in disputes regarding the constitutionality of acts and regulations.²²⁶³ Moreover, IFAI has the power to: establish and review criteria for the classification, declassification, and safekeeping of secret and confidential information; assist the National Archives in the drafting and application of criteria for cataloging and preserving documents, as well as the organization of the archives of government offices and agencies; monitor, and in the event of noncompliance, make recommendations to government agencies to comply with the obligations of proactive transparency; guide and advise private parties with regard to requests for access to information; prepare access to information request forms, as well as forms for access to and the correction of personal data; hold training sessions for public servants on matters concerning access to information and the protection of personal data, and to draft and publish studies and research to disseminate and broaden knowledge of the laws on the issue (Art. 37)²²⁶⁴.
    

53. 
    In Uruguay, the Executive Council of the Unit for Access to Public Information, by virtue of its authority to monitor compliance with the law, can issue resolution which may, in some case, instruct agencies under the law to disclose certain information. However, decisions are not binding²²⁶⁵. The Unit also has the following duties: (a) advise the Executive Branch with regard to compliance with the laws on access to public information; (b) oversee the implementation of the law at the respective government agencies; (c) coordinate with national authorities for the implementation of policies; (d) provide training to public servants at the agencies required to provide access to information; (e) promote educational and advertising campaigns to reaffirm the right to access to information as a fundamental right; (f) prepare an annual report for the Executive Branch on the status of access to information, and (g) report any conduct that violates the law to the competent authorities.²²⁶⁶ In addition to these powers, Law 19.178 grants the UAIP the authority to declassify information whose classification process is inconsistent with the provisions of the laws in force.²²⁶⁷
    

2. 
   Authority to classify and declassify information
   

54. 
    The right to access to information, as a constituent element of the freedom of expression protected by the American Convention, is not an absolute right; it can be subject to limitations. Nevertheless, such limitations must be in strict conformity with the requirements derived from Article 13.2 of the American Convention—that is, they must be truly exceptional, clearly established by law, pursue legitimate aims, and be necessary to accomplish the aim pursued.²²⁶⁸
    

55. 
    In their Joint Declaration of 2004, the UN, OAS and OSCE Special Rapporteurs summarized the requirements that limits to the right to access to information must meet, and addressed in greater depth some issues concerning “restricted” or “secret” information and the laws establishing those classifications, as well as the public servants legally required to maintain its confidentiality.²²⁶⁹ Among other things, they stated that “Certain information may legitimately be secret on grounds of national security or protection of other overriding interests,” but that “secrecy laws should define national security precisely and indicate clearly the criteria which should be used in determining whether or not information can be declared secret, so as to prevent abuse of the label ‘secret’ for purposes of preventing disclosure of information which is in the public interest,” and therefore, “secrecy laws should set out clearly which officials are entitled to classify documents as secret and should also set overall limits on the length of time documents may remain secret.”
    

56. 
    For purposes of making the classification process more transparent, the bodies and agencies subject to Brazil’s Public Information Access Law must publish a list of classified and declassified information on their websites.²²⁷⁰ In order to facilitate information searches, the Office of the Comptroller General has compiled a list of agencies to which the law applies.²²⁷¹ The Office of the Comptroller General, together with other bodies such as the Ministry of Communication of the Presidency of the Republic [Secretaria de Comunicação da da República Presidência], also created a guide for agencies on how to publish the list of classified and declassified information, and statistical reports regarding Access to Information Law on their websites.²²⁷² In addition, the Public Information Access Law created a Mixed Committee for the Reassessment of Information responsible for deciding the “treatment and classification” of secret information in the federal government. Accordingly, the Mixed Committee has the authority to request clarification from the authorities responsible for classifying information as “top secret” or “secret,” and to request the content of the secret information in part or in whole; to review the classification of “top secret” and “secret” information on its own initiative or at the request of the interested party; and to extend the period of secrecy of information classified as “top secret,” provided that the extension is for a specific period of time. The Mixed Committee also has jurisdiction to decide appeals challenging decisions of the Office of the Comptroller General that deny access to information, and to rule on denials of requests to declassify information issued by the Ministers of State.²²⁷³
    

57. 
    In Canada, the Office of the Information Commissioner does not does not have a statutory role in regard to classification and declassification of documents. Therefore, each institution is responsible for the classification and declassification of its own documents. The Office of the Information Commissioner has produced reference documents in order to guide employees in managing information.²²⁷⁴
    
58. 
    In Mexico, the IFAI issued General Guidelines for the classification and declassification of information held by Federal Government agencies. These guidelines do not prevent the IFAI, in the exercise of its authority, “from ensuring that the classification adheres strictly to the provisions of the Federal Transparency and Access to Government Information Act, the Regulations thereto, these Guidelines, the specific classification criteria and, if appropriate, other legal provisions.”²²⁷⁵
    

59. 
    In Uruguay, the Public Information Access Unit published a practice manual for the classification of information and held training sessions for parties subject to the respective laws.²²⁷⁶ In addition, entitites under the Law must submit each semester to the Unit an updated report containing the list of confidential information (Art.7).²²⁷⁷The 2013 amendment to Uruguay’s Access Law established, as an exception, the option for each agency to classify information at the time a request is handled. When such classification is made, it must be reported to the Unit, which will then “check” that action within a period of 5 days. Also, at all times, the Unit “will have access to classified information to assess the legality of their classification.”²²⁷⁸
    

5. 
   Mechanisms for the management of requests: centralized/decentralized; online management
   

60. 
    The bodies of the Inter-American System have reiterated that Article 13 of the American Convention establishes a positive obligation for the State to provide the requested information in a timely, complete, and accessible manner. Otherwise, the State must offer, within a reasonable time period, its legitimate reasons for impeding access.”²²⁷⁹ On this point, this Office of the Special Rapporteur has stated that “In order to guarantee the true universality of the right to access,” the remedy available to request information must meet certain conditions. For example, “it must be a simple [remedy] that is easy for everyone to access and only demands basic requirements, like a reasonable method of identifying the requested information or providing the personal details necessary for the administration to turn over the requested information to the petitioner,” and it must be “free or have a cost low enough so as not to discourage requests for information.”²²⁸⁰
    

61. 
    The Office of the Special Rapporteur observes that all requests for information in Brazil and their respective responses are reportedly processed through the Electronic System for Information Service (e-SIC).²²⁸¹ The e-SIC system enables citizens to exercise their right by having a single entry point for requests, and provides them with the opportunity to follow up on requests, view responses, and file complaints. It also facilitates management for public servants, insofar as the system “makes it possible for the agencies and entities and for the CGU to support the implementation of the Law and produce statistics on compliance with the extraction of reports containing data on all of the requests for access to information and their respective follow-up.”²²⁸²
    

62. 
    Canada has had an online system since 2013 for the management of information requests filed with federal government agencies. As reported, “To date, it is a pilot project that extends to 21 of the 250 institutions covered by the law, but which handle 80% of the requests received at the entire federal level.”²²⁸³
    

63. 
    On October 1, 2012, the United States lauched FOIAonline, a multi-agency web-application that enables the public to submit FOIA requests to participating agencies.²²⁸⁴Moreover, the public can track the progress of an agency’s response to a request, search for information previously made available, and generate up-to-the-minute reports on FOIA processing.²²⁸⁵
    

64. 
    In Honduras, the Institute for Access to Public Information set up the Electronic Information System of Honduras (SIELHO). According to the information available, the SIELHO “is a mechanism designed to manage requests for information and receive appeals for review online. The system is responsible for redirecting citizen requests for information to the public information officers (OIP) of each institution, electronically regulating the process that the request follows; at the same time, it provides feedback to the requester on the status of the request for information. The SIELHO enables the public information officer (OIP) to monitor all of the requests pending response and to handle them in order of their deadlines.”²²⁸⁶
    

65. 
    With regard to request management mechanisms Mexico, the IFAI-OA implemented the INFOMEX system:²²⁸⁷ “a computer tool that allows citizens to exercise their rights to access to information and the protection of personal data held by the government, through an electronic system for the receipt and expedited handling of requests for information.” According to the information received, “The main objectives of INFOMEX are as follows: to handle requests for access to information and personal data, as well as requests for the correction of such data, filed by citizens electronically through this medium; for citizens to be able to receive the information they request through this medium, to be able to monitor the status and processing of the requests, and to be able to file appeals for review through the same electronic medium in the event of the denial of a request for information. INFOMEX also makes it possible to view the responses of the Federal Government, using multiple filters such as date, status, and response type, by Federal Government office or entity.”²²⁸⁸
    

66. 
    In Uruguay, requests are received in person or electronically. According to the information received, the Public Information Access Unit “is working on the E-access System that will centralize all requests for information filed in Uruguay in a single computer system, thus allowing it to monitor them in its capacity as the supervisory body.”²²⁸⁹
    

6. 
   Mechanisms for the monitoring and enforcement of proactive transparency obligations
   

67. 
    The right to access to information imposes upon the State the obligation to provide the public with the maximum amount of information on its own initiative, at least with respect to: (a) the structure, function, and operating and investment budget of the state; (b) the information needed for the exercise of other rights—for example, those pertaining to the satisfaction of social rights such as pensions, health, and education; (c) the availability of services, benefits, subsidies, or contracts of any kind; and (d) procedures for filing complaints or requests, if they exist. This information should be complete, understandable, available in accessible language, and up to date. Also, given that significant segments of the population do not have access to new technologies—and yet many of their rights can depend on having information about how to exercise them—the State must find efficient ways to meet its obligation of active transparency in these circumstances.²²⁹⁰
    

68. 
    The Model Inter-American Law on Access to Public Information clearly stated some of the State’s obligations with regard to proactive transparency. The Model Law prescribes that “even in the absence of a specific request, public bodies should disseminate information about their functions on a routine and proactive basis and in a manner that assures that the information is accessible and understandable.” In addition, Article 9 of the Model Law establishes the obligation to “[make] information available proactively so as to minimize the need for individuals to make requests for information.” Article 12 of the Model Law specifies in detail the types of key information subject to proactive disclosure by a public authority.²²⁹¹
    

69. 
    In this respect, the specialized entity responsible for overseeing and enforcing access to information laws must be capable of formulating consistent policies for all of the agencies subject to the regulations, and must have the authority to coordinate the efforts of different departments. Therefore, it must have the ability to monitor compliance with the obligation of proactive transparency.
    

70. 
    With a view to enhancing transparency and facilitating information searches by citizens, the Federal Government of Brazil ordered all bodies and entities of the Executive Branch to disclose information of public interest in an organized and centralized manner in a specific section of their websites. To guide them in this task, the Office of the Comptroller General developed a manual containing guidelines on how to build an “Access to Information” section on their websites. This manual aims to provide consistency with details on the structure, nomenclature, and content of the information of public interest that government agencies and entities are required to publish under the Access to Information Act.²²⁹² In order to verify compliance with the manual’s guidelines and the obligations of proactive transparency, the Office of the Comptroller General is conducting a survey of all of the agencies of the Federal Executive Branch to obtain information about their websites. The agencies that have not observed the provisions of the Law or the guidelines set forth in the manual have received letters with recommendations for proper compliance with their proactive transparency obligations. According to the information received, a Working Group has been formally established in Brazil and authorities responsible for monitoring compliance with the Access Law have been appointed in the agencies and bodies subject to the law.²²⁹³
    

71. 
    In Canada, the government institutions subject to the Access Law must report annually to Parliament regarding their compliance.²²⁹⁴
    

72. 
    Mexico’s IFAI created the Transparency Portal, a system through which citizens have access to information relating to the transparency obligations of Federal Government agencies.²²⁹⁵ The IFAI also implemented ZOOM, a search engine of public information requests made to the Federal Government, of the answers provided, and the resolutions that IFAI issues, in addition to studies and opinions that support these resolutions.²²⁹⁶
    

73. 
    In Honduras, the Institute for Access to Public Information created the Office of Transparency Verification [Gerencia de Verificación de Transparencia] in 2013 aiming to corroborate the information that the insitutions under the Law have to publish on their transparency portals [portales de transparencia]. This Office produces annual reports evaluating the compliance of government agencies in accordance with the transparency evaluation methodology design that was approved by the full session of the Commissioners of the Institute. According to the methodology, the transparency portal must have at least the following five main components: “Organic Structure and Services; Planning and Accountability; Finances; Citizen Participation and Oversight. Within this framework, the agencies subject to regulation have been classified according to their interest in or commitment to observing the LTAIP [Transparency and Access to Public Information Act].”²²⁹⁷
    

74. 
    An external audit was conducted of Uruguay’s Public Information Access Unit that applied a matrix specially designed by the Unit for the periodic assessment of progress made by the regulated agencies in their compliance with the provisions of the Access Law. With this matrix, the Unit will perform audits on a regular basis. ²²⁹⁸ Decree 484/2009²²⁹⁹ issued by the Executive Branch established that all agencies subject to the law have the right to conduct self-evaluations in order to report on their compliance with the obligations of proactive transparency.
    

7. 
   Mechanisms for centralized statistical monitoring
   

75. 
    In Mexico, the IFAI-OA compiles and publishes statistic on various topics, which are largely reprinted in its annual report. The themes addressed include: the 20 agencies with the greatest number of requests for information; the most common subjects of requests for information; the geographic location of the requesters; the number of requesters per year according to the reported age of the requester; percentage of requests received by gender; the number of requests per year according to the requester’s reported occupation, among other subjects.²³⁰⁰
    

76. 
    Uruguay’s Public Information Access Unit presents its statistics in its annual report. These data refer to the number of compliance forms and confidentiality request forms filed, the number of decisions and opinions issued and their subject matters, and statistics on compliance with the law. To meet this objective, all of the agencies subject to the law must submit a report to the UAIP with data on requests received and procedures followed during the prior year.²³⁰¹
    

77. 
    In Brazil, according to the information received, the Office of the Comptroller General publishes statistical reports on the Internet with daily data updates on requests for information and appeals, based on the data extracted from e-SIC. These reports include the consolidated data from the entire Federal Executive Branch, as well as data specific to bodies or entities registered in the system, without the need to log in to e-SIC.²³⁰²
    

8. 
   Conclusions and Recommendations
   

78. 
    Over the past decade 22 countries of the hemisphere have enacted laws to guarantee the effective exercise of the right to access to public information; this reality is largely result of the promotion that the Inter-American Human Rights System has given to the protection and implementation of the right of access to public information. In general, the regulatory frameworks, adopted by different States, are in line with the standards developed by inter-American doctrine and caselaw.
    

79. 
    The main conclusion that can be drawn from the study is the growing consensus in the OAS Member States, in recognizing the right to information as one of the pillars of the consolidation of established and robust democratic systems through citizen participation. This was expressed fundamentally in the enactment of laws on access to public information following the standards developed by the interamerican doctrine and caselaw.
    

80. 
    In order to implement and enforce the laws on access to information in an efficient, suitable and adequate manner, several countries in the region have created supervisory institutional mechanisms, which demonstrates a concern to promote a culture of transparency in the long term. The existence of such mechanisms is vital both to effectively implement the access to information laws and to satisfy the public’s need for a simple and effective remedy for review the denial of information.
    

81. 
    The information gathered in this report leads to the conclusion that the institutions created in the region to ensure the implementation and enforcement of the right of access to information, inroads in each one of the States very painstakingly, which requires significant efforts from authorities to consolidate their space of autonomy and develop the ability to fulfill their mission .
    

82. 
    As seen in this report, these bodies are not uniform in their designs and features, and not all meet the inter-America standards for independence, autonomy and power to resolve disputes. A number of countries have set up specialized bodies to implement the right to information with autonomy and independence. In other cases, commissioners have been appointed or specialized units were created and located within preexisting bodies (Public Ministry, Comptroller, the National Archives or Parliament). A third group of states have chosen to establish authorities or expert committees on the right to information, but under the aegis of the Executive branch or other body controlled by it.
    

83. 
    Among the supervisory bodies that were designed with independence and autonomy within the government structure, we can also find differences due to the factors that makes them independent (process of selection and appointment of the commissioners, dismissal or termination of the mandate, budgetary sovereignty, etc.) A recent constitutional amendment positioned the IFAI as one of the most important bodies among those created in the region for the enforcement of access to public information, granting it autonomy and independence with a constitutional status within the political organization of the federation. However, Chile, Canada, Honduras, and El Salvador have established bodies with varying degrees of autonomy and independence in relation to the factors that can determine the real (or perceived) independence of these offices.
    

84. 
    A critical issue in the institutional designs studied lies in the powers granted by law to these bodies to resolve disputes and if they have the power to order agencies under the Law to grant access to information intended to be held in reserve. Only a minority of the cases studied have the power to issue binding resolutions for authorities under the Law, as advised by international standards to provide accessible and affordable appeal to the applicant. The IFAI in Mexico the Transparency Council of Chile, the Institute for Access to Public Information in El Salvador and the Institute for Access to Public Information of Honduras can issue binding resolutions but not final; this has allowed agencies under the Law to challenge the decisions of those bodies in court, thereby delaying the disclosure of the requested information.
    

85. 
    In the cases of Canada, United States and Uruguay the supervisory bodies overseeing access to information can only issue recommendations, for the government bodies who denied access to information to review their decisions. In these cases, the requesters who wish to enforce their right to information may avail themselves of the judiciary, with all of the attending costs.
    

86. 
    The rest of the designs studied must be examined individually. Brazil delegated the duties of implementing and monitoring compliance with the law to a pre-existing body with sufficient authority, independent from the Executive Branch, and federal in scope. In case of dispute the regulation on access to information established a complex mechanism that requires prior presentation of a petition for review before the agencie under the law, and then he may appeal to his superior. If the superior refuses the access to information, the applicant may appeal the decision to the supreme authority of the agency or entity. Subsequently, the applicant may appeal to the Office of the Comptroller General [Controladoria-Geral da União] and if it refuses the access to information, he/she may appeal to the Joint Committee on Revaluation of Information.
    

87. 
    A similar case is that of Colombia, which by law assigned the implementation of decisions on access to public information to the Office of the Inspector General [Procuradoría General de la Nación] of Colombia, a pre-existing agency with the power to sanction public official and within which a Working Group was established for the application of the Access to Information Act. However, when there is a dispute between a person requesting information and an agency under the Law, applicants should go to the courts to seek protection of their rights.
    

88. 
    In light of the issues presented on this report, the countries of the region may continue to make progress in their obligation to implement a culture of transparency and guarantee the right to access to information. It is therefore essential to persist in building robust supervisory bodies with sufficient power to give life and meaning to the mandates of transparency of access to information laws and align State practice to international case law.
    

89. 
    The Office of the Special Rapporteur reiterates the importance that bodies responsible of defending the right to information have a budget and allocation of human resources to fulfill their important assigned mission. Without resources or staff, is very difficult to fulfill all the functions assigned to these agencies, such as the promotion of the regulation, exercise control over the rest of the state organization and resolve appeals with the speed necessary to guarantee the right to access to information.
    

90. 
    The Office of the Special Rapporteur hopes that this report will be of use to the States and to civil society, to get to know the legal frameworks and institutional practices developed in the region to build supervisory bodies that grant the protection and defence of the right to access to information, capable of implementing systematic transparency policies and of resolving disputes between citizens and government agencies to access information of public interest. In this regard, this report is expected to be useful to bring the regulatory frameworks into line with the highest relevant standards and inspire those states that have not yet adopted laws to defend the right of access to information.