Impasse: Freedom of Speech, Journalistic Ethics and Bolivia’s National Press Law
August 12, 2016
Bolivia’s National Press Law has become a heated topic of debate. On July 27th, journalist Humberto Vacaflor received a summons for comments in which he unfoundedly accused President Evo Morales of ordering the death of two people in 2002. On a Catholic television program he said: “once I found out that Morales ordered the assassination of the Andrade couple, I wouldn’t even shake his hand.” Vacaflor and Bolivia’s National Press Association have rejected the legitimacy of the summons stating that the country’s press law protects journalists from criminal prosecution. Yet, both the 1925 National Press Law and the country’s Criminal Code, under certain circumstances, permit criminal action against slander, defamation and libel in the press. Members of the Morales administration have indicated an interest in updating the 90-year-old National Press Law, but prominent Bolivian journalists and the National Press Association, reject modifying the law they uphold as a guarantee for journalistic freedom of speech, despite its more problematic stipulations. This dispute highlights longstanding concerns in a contentious government-media relationship including: 1) the need to update Bolivia’s antiquated use of criminal proceedings for libel and slander; and a disconcerting growth in 2) the lack of accountability, veracity and ethics in a significant portion of Bolivia’s political journalism.
Laws that Regulate Press Expression
Bolivian laws penalizing libel, defamation and slander by the press have been in effect for decades. Like most Latin American countries, Bolivia’s Criminal Code, enacted in 1972 under dictator Hugo Banzer, continues to criminalize defamation, libel, and slander. In Article 283, libel is defined as “any person who by any means falsely attributes the commission of a crime to another,” and the penalty for such a crime: “[person guilty] shall be sentenced to six months to three years, and fines of one hundred to three hundred days of jail time.” Furthermore, if the crimes of libel and slander are committed in the press the author shall be considered guilty of defamatory libel and sanctioned with a fine calculated on sixty to one hundred and fifty days. Article 289 of the Code also affirms that criminal prosecution can be avoided through a retraction: “The accused will be absolved of penalty if he/she retracts the statement prior to the investigation.”
In a press release supporting Vacaflor, Bolivia’s National Press Association sustained that the Criminal Code cannot be applied to the press, selectively citing the Press Law. However, the Criminal Code specifically addresses defamatory libel by the press. Furthermore, the National Press Law, undoubtedly a crucial legal precedent to protect journalists at its passage, has since become outdated and difficult to apply. Article 14 sustains that in the case of defamation of public officials and business leaders journalists can be obligated to prove their accusations:
“Nobody should be forced to prove the veracity of defamatory facts, except against public officials, business leaders, limited partnerships or accusations relating to their functions. Proof of the facts in question can protect the author from any penalty from slander not necessarily dependent on the facts themselves.”
Article 27 authorizes slandered or defamed individuals to press charges in ordinary courts, unless plaintiffs choose the press tribunal jurisdiction:
“The crimes of slander and libel against private citizens are subject to penalties of the Criminal Code and should be judged in ordinary courts, unless the offended party chooses to take legal action in front of the [press] jury.”
And Article 28 authorizes public officials who have been personally attacked to press criminal charges in ordinary courts:
“…the [press] jury has jurisdiction in press crimes, without the application of special charters, but slander and defamation against private citizens can be tried either by the [press] jury or the ordinary courts. Public officials, if they are attacked by the press in that capacity, can only issue a complaint to the [press] jury; except if, in the name of combatting actions of public officials, there are personally slandered, defamed, or libeled, they can bring charges in ordinary courts. When ordinary courts try press crimes, the sanctions of the Criminal Code apply, unless the author or responsible party present a rectification to the judge, and publish to the full of the offended party, or in the case of absence or death, any of their heirs or kin.”
No clear legal yardstick exists to distinguish accusations made against a public official for his or her post, from a personal offense. However, in accusing Morales of murdering two people while he was a coca union leader, Vacaflor’s statements can be legally interpreted as a personal attack.
Problems with Implementation in Modern Bolivia
The special press courts called for in the National Press Law are limited or non-existent as a viable alternative to criminal procedures. The juries that do exist lack a formal infrastructure, clear jurisdictional mandate or operating procedure to allow efficient, continuous action. There have been very few attempts to use these juries at all. As of July 2016 there were only four special press juries in existence: in Santa Cruz, La Paz, Potosi and Sucre, but they have yet to be fully activated by the ordinary courts. In La Paz the court was established four years ago, in Potosi since 2002, in Santa Cruz since 2003, and in Sucre since 2010, and yet none of these juries are fully functioning as of July 11, 2016. According to journalist Juliana Rojas from Los Tiempos, government officials haven’t even begun to address the issue of the Press Juries in Cochabamba.
Bolivian Journalists Reject Morales Reform Proposal
In May 2016 Morales administration officials proposed updating the National Press Law and demanded greater transparency in the press. Minister Lenny Valvidia stated that “we have obsolete legislation; it really needs to be updated, but this by no means constitutes a threat or risk to access to information or works in the profession of journalism. We’re not currently debating any proposed legislation; of course, we’re going to work with journalists on this.” MAS Congresswoman Mireya Montaño was notably less diplomatic when she suggested changing the law because “sometimes the freedom of expression is confused with defaming and slandering pubic authorities…” These statements outraged prominent journalists and intensified pre-existing tensions. The National Press Association declared: “Facing proposals to modify the law, the National Press [Association] of Bolivia highlights the magnificence of the law, which foresees different scenarios, faults and crimes, and for that we consider this debate unnecessary and the proposals to change [the law] the result of a political juncture.” Opposition to criminal prosecution is well founded, but to move forward there must be multilaterally accepted, viable alternatives to the status quo.
Ineffective Self-Regulation Mechanisms
In 2003, eight newspapers (El Deber, Los Tiempos, Correo del Sur, Nuevo Sur, El Norte, El Potosi and El Alteño) launched a self-regulation initiative called the Reader’s Ombudsman. The office encouraged readers to communicate inaccurate, biased, or unethical press content to this Ombudsman. However, by 2006, the only newspaper that still participated in the initiative was El Deber, so that eventually the role was suspended. Ex-Reader’s Defender Martha Paz commented that the initiative struggled due to the “‘negative and defensive attitude that many journalists had.”
Mechanisms to enforce ethical journalistic standards exist, but have had a limited impact. A National Code of Ethics, in place since 2010, outlines the role and responsibilities of the Bolivian press. A National Ethics Tribunal functions to enforce it. Similar to the special press juries, the Tribunal seeks to provide an alternative to criminal proceedings through self-regulation. Former President and ex-tribunal member Carlos Mesa Gilbert explained:
“If with the moral force of an ethical tribunal ruling we can change the behavior of a journalist or of a media outlet we are demonstrating that free expression can be regulated among those that are freely expressing their ideas.”
However, the Tribunal has only ruled on approximately 50 cases during its tenure, only responds to specific denunciations, and has no enforcement capacity, leading to the frequent rejection of its rulings. For example, television commentator Carlos Valverde Bravo rejected the Tribunal’s jurisdiction over a denunciation against him for unethical behavior on his television program. The National Media Observatory of the Unir Foundation, established in 2005 to raise the quality of journalism in Bolivia, has lost impetus and funding with the resignation and subsequent death of its founder, Ana María Romero de Campero.
Press Protections come with Ethical Responsibilities
While members of the press should not be criminalized for their speech, they are still responsible for following ethical standards of journalism. This means reporting truthful, well-researched, and objective content to the public. The National Code of Ethics for Bolivian Journalists declares that journalists should “report with exactitude, balance, truth, opportunity, plurality and contextualizing the content.” It also establishes that “under no circumstance should information be mixed with opinion or conditioned on commercial publicity…” Luis Beltrán, former Reader’s Ombdusman noted in 2003 that Bolivian journalism was losing touch with essential ethical standards:
“It is very evident that Bolivian journalism is suffering a grave moral crisis…Tainting news with opinion. Distorting facts. News titles that clash with the text’s content. The spreading of rumors and speculations. Decontextualization. More expressions than facts. Unilateral sources. Irresponsibility, slander and defamation…Although initially the majority of these ethical defects characterized just a few scandalous, popular press sources, now they have also begun to characterize some “serious” media…”
Sensationalist and inaccurate journalism, exemplified recently by widespread coverage of a scandal involving Evo Morales and his ex-partner Gabriela Zapata, has further exacerbated the environment described by Beltrán, Unethical conduct is not necessarily the result of ill intent. Bolivian journalists are severely overworked, underpaid, and often lack editorial guidance. Nonetheless, there needs to be an effective system in place to demand retractions and accountability for inaccurate information.
The National Press Law has protected the freedom of the press for over 90 years. However, the law itself problematically invokes criminal proceedings under certain circumstances, and has not been effectively translated into action through special press juries. If journalists are committed to the principle of self-regulation, the country must engage in a substantive discourse about how to reform the law in a way that decriminalizes slander and defamation, while still holding journalists accountable to ethical and accurate reporting. Recent agreements between leaders in the press and the government to extend media licenses should provide the foundation for solutions that prioritize ethical journalism over divisive attacks, self-regulation in lieu of criminal charges, and appropriate accountability rather than impunity for both government officials and journalists.
 Morales was also a member of Congress at the time, but his attorneys argue that the murder accusation is not related to this post.