22 Feb 2023 Communication rights in Latin America in the context of a Pink Tide 2.0

www.jpereira.net info@jpereira.net

Chileans demonstrate in favour of a new Constitution. Photo credit: The New School. Jose Pereira. CC BY-NC-ND 2.5.

Lorenzo Vargas

In Latin America, the “pink tide” governments of the first decade of the 21st Century transformed the movement for communication rights by introducing far reaching media reform legislation, with various degrees of success. As a second wave of progressive governments is elected, the region has a new opportunity to move towards the democratization of increasingly fragmented and digitized communication ecosystems.

Since 2018, with the election of Andrés Manuel López Obrador in Mexico, Latin America’s political landscape has been turning to the left after several years of conservative dominance. Argentina soon followed in 2019 with the election of Alberto Fernandez. Gabriel Boric of Chile, Gustavo Petro of Colombia, and Lula da Silva have been elected over the past eighteen months. In effect, most of the region’s major economies are being governed by progressive governments, often backed by well-organized social movements.

The last time a similar political moment took place was in the period between the early 2000s and the mid 2010s, when countries such as Ecuador, Uruguay, Bolivia, and Brazil implemented progressive agendas that, despite their many shortcomings, lifted millions of people out of poverty.

That political moment also had an impact on the region’s media landscape. Many countries introduced new laws and public policy frameworks that sought to democratize access to the media, in some cases with the active participation of civil society movements as key players. Some examples were the Organic Law of Communication in Ecuador; the General Law of Telecommunications, Information and Communication Technologies in Bolivia; the Audiovisual Communication Services Law in Argentina; and the Media Law in Uruguay.

Even as those measures proved controversial and were seen by some as efforts to stifle free speech, these new frameworks had some elements in common, such as an effort to distribute broadcasting licenses more equitably between clearly defined sectors: the public sector (think public broadcasters such as the BBC), private or commercial media, and community/Indigenous groups.

Another was the introduction of measures to prevent and/or discourage the concentration of media in a few hands, especially in the hands of foreign or domestic capital conglomerates whose influence in other sectors of the country’s economy is too great. These policies also included the establishment of regulatory agencies with the ability to impose sanctions to enforce the new rules.

Ecuador and Bolivia went so far as to enshrine the right to communicate in their constitution, becoming the first countries in the world to do. Even countries with more conservative governments implemented positive changes, such as laws that promoted access to public information, as in the case of Mexico, and the dismantling of legal frameworks that criminalized contempt and certain forms of public expression in Chile and Guatemala.

Obstacles and failures

Nevertheless, many of those changes faced numerous obstacles. On the one hand, the private and commercial sectors, accustomed to a much more favourable regime, opposed the implementation of new policies, arguing that they constituted attacks on press freedom and freedom of expression. On the other hand, these new regulations emerged in highly politicized environments and were often seen as tools for the governments of the day to promote their political agendas, making them vulnerable to being weakened or dismantled as new governments came into power.

In addition, there were many failures in the implementation of these new frameworks, such as a lack of concrete and sustainable mechanisms to strengthen the community broadcasting sector. However, despite such problems, these processes represented a significant step forward for communication rights.

As new progressive governments come into power, many are wondering about the extent to which these changes will translate into changes in communication policies. This time around, old challenges related to media concentration have been made even more complex by the increasing centrality of digital communication. 

In particular, the nature of “media power” that many of these governments sought to reform has changed drastically: transnational digital giants such as Google and Facebook have become protagonists in the region’s media landscape, especially in terms of advertising revenue, very much at the expense of the influence of more traditional media groups such as Globo in Brazil and Clarín in Argentina. 

Furthermore, digital misinformation and disinformation, as well as “surveillance capitalism”, have exploded across the region, forcing governments to think about regulatory frameworks in ways they simply did not have to 10 or 15 years ago.

The establishment of more democratic communication policies is a long-term process, and their success depends in part on the political will of the government at the time and on the extent to which private sector actors such as large media conglomerates succeed in resisting change. 

Chile provides a useful example of the changes taking place in the region. On September 4, 2022, Chilean voters rejected a new proposed constitution that would have set the foundations for a progressive, rights-based, gender-sensitive, decolonial, and ecologically sound form of governance. Despite some gaps in terms of clarity and concerns about the fiscal load that the constitution would have imposed on the state, the proposed text would have “legalized abortion, mandated universal health care, required gender parity in government, given Indigenous groups greater autonomy, empowered labour unions, strengthened regulations on mining and granted rights to nature and animals,” wrote The New York Times. “It would have enshrined over 100 rights into Chile’s national charter, more than any other constitution in the world.”

In the end, 62% of voters rejected the new charter; many found the proposed changes too left-leaning and there were fears that Indigenous communities would gain too much power under the new model. Rampant disinformation and misinformation, amplified by social media, played a role in stoking those fears.

Communication as a multi-dimensional social process

However, it is worth noting that, from a communication rights perspective, the rejected constitution represented a major step forward. While the text did not explicitly recognize communication as a human right, it did take a holistic approach to communication issues by drawing on widely accepted international rights frameworks to attempt to democratize the country’s media and information landscape, including curbing the influence of digital giants.

Essentially, the text moved from a reductionist approach to information and freedom of expression that understands those rights as negative rights towards a vision of communication as a multi-dimensional social process that the state should actively promote as a series of positive rights. Some examples include:

• Article 82 protects the right to freedom of expression and opinion and strictly limits censorship.
• Article 70 enshrine the right to privacy and to protection from surveillance, including in the form of digital data and metadata.
• Article 72 focuses on the right to free association, while Article 75 protects the right to public gathering and peaceful protest.
• Article 83 establishes every person’s right to produce information and to participate equitably in social communication, including the right to create new media outlets. This article also protects press freedom, commits the state to actively promote media pluralism and information diversity, and forced media outlets to broadcast, within reason, complaints from persons who feel negatively affected by media content.
• Article 84 commits the state to actively promote the development of regional, local, and community media, to tackle media concentration and monopolies in this sector.
• Article 85 promises to establish public interest, multi-platform, audience-responsive, pluralistic, and independent publicly funded media.
• Article 86 enshrines a right to digital connectivity and to access information and communication technologies (ITCs). It also guarantees access to quality and high-speed connectivity, commits the state to tackling the digital divide and to upholding net neutrality. Lastly, it reaffirms electromagnetic spectrum as a public good that should be governed in the public’s interest.
• Article 87 establishes a right to “informational self-determination” and data protection, which in practice enables people to have control over their own data within clearly defined legal limits
• Article 88 enshrines a right to online safety and protection form online harm. Similarly, article 89 establishes a right to online spaces free of violence and commits the state to upholding this right.
• Article 90 establishes a right to digital education and digital literacy.
• Article 96 establishes a right to participate freely in the creation, development, and promotion of different knowledge systems, as well as to benefit from them.

These articles are very much in line with WACC’s own recommendations to advance communication rights, which emphasize building on the right to freedom of expression in order to address power imbalances in the ways people and communities access and benefit from communication, information, and knowledge.

In this context and keeping in mind the strong resistance that many of these changes might elicit, as exemplified by the “reject” option of the Chilean plebiscite, new progressive governments such as Chile’s would do well to draw on lessons from previous attempts to democratize the region’s media ecosystems. The first, and perhaps most important, lesson, would be to work shoulder to shoulder with social movements and civil society already engaged in this space. In fact, most of the victories in terms of communication rights in recent years have been the result of sustained pressure from social movements.

By the same token, there is a significant opportunity for civil society organizations working on communication rights to establish broad and cross-cutting coalitions with groups working in other sectors in order to position communication rights as a building block of social progress.

Such coalitions must be diverse, inclusive and open spaces for dialogue with different actors, but they must also have the capacity to develop clear common agendas and objectives. This type of coalition must also have the tools to produce and disseminate knowledge, interact with state agencies, establish alliances with sectors of civil society that have not traditionally been involved in communication activism, and influence public opinion in favour of the democratization of communication. It is also essential that they be participatory coalitions so that they are truly legitimate.

Let us hope that progressive governments and organized civil society make use of this unique window of political opportunity to push for transformative change in the realm of communication. Latin America has the opportunity not only to strengthen democracy, but also to lead the world in progressive and inclusive media reform.

Lorenzo Vargas is a communication for development specialist and researcher on citizens’ media. He coordinates the Communication for Social Change Program of the World Association for Christian Communication (WACC), supporting community media initiatives in the Global South. He holds degrees in international development and communication from York University and McGill University, and is pursuing a PhD in Communication and Culture at Ryerson University, where he is affiliated with the Global Communication Governance Lab. He has also pursued studies on media policy at the University of Brasilia and the University of Oxford. His publications include Citizen’s Media as a Tool for the Local Construction of Peace in Colombia: Opportunities for Youth (2013); Indigenous Community Media Aid Reconciliation in Canada (2015); Expanding Shrinking Communication Spaces (ed. with Philip Lee) (2020); and Communicating Climate Change (ed. with Philip Lee) (2021).