06 Sep 2022 Why the new Chilean Constitution matters for communication rights

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 labor 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.

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 (CRIS Campaign), 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.

Indigenous broadcasters at Werken Kurruf Radio, a Mapuche radio station in Aija Rewe del Budi. Photo Credit: Cultural Survival

Given the mandate to draft a new constitution expressed by Chileans in 2020 during a vote, and the pressure from the social movements behind the wave of street protests in 2019,  it is very likely that the Chilean government will be forced to set in motion a new constitutional assembly process.

As noted in a WACC Comment published in July, the new wave of progressive governments in Latin America has the potential to reinvigorate the communication rights movement much like it did some 10 years ago during the “pink tide”.  Let us hope that Chilean voters and the new body expected to prepare a revised constitutional text will have the wisdom to maintain their commitment to a more democratic communication system– for it will undoubtedly become one of the cornerstones of a more democratic and inclusive Chile.

Notes:

CRIS Campaign. 2005. Assessing Communication Rights: a Handbook. Communication Rights in the Information Society Campaign. http://cdn.agilitycms.com/wacc-global/Images/Galleries/RESOURCES/COMMUNICATION-RIGHTS/Assessing-Communication-Rights.pdf

Jack Nicas. Chile Says ‘No’ to Left-Leaning Constitution After 3 Years of Debate. The New York Times

https://www.nytimes.com/2022/09/04/world/americas/chile-constitution-no.html

Photo at top: Likan Antai people perform a traditional ceremony at a broadcasting and astronomical facility in northern Chile. Photo Credit: ESO https://www.eso.org/sci/publications/messenger/archive/no.152-jun13/messenger-no152-2-6.pdf