Although the article 57 of the Constitution establishes that «every person has the right to timely, truthful and impartial information, without censorship», the Supreme Tribunal of Justice (TSJ) continues to support the government from impeding the dissemination of certain ideas and opinions, as it did when in 2009 it prohibited all the country’s TV and radio stations from spreading the campaign of Center for the Disclosure of Economic Knowledge for Freedom (Cedice) «In defense of the private property.»
The Political-Administrative Chamber, in its judgment 882 of 9 August 2016, rejected the nullity action filed by the civil association seven years ago against the National Telecommunications Commission (Conatel), which it accused of violating its right to freedom of expression and of establishing the previous censorship by prohibiting the issuance of a series of commercials that it used again during the campaign for the referendum of the constitutional amendment that the late Hugo Chavez pushed. The audiovisual announcements had already been disseminated during the campaign for the failed referendum of the constitutional reform and were considered one of the reasons for the first chavismo electoral defeat.
In the ruling issued by Justice Eulalia Guerrero, the highest tribunal did not respond to Cedice’s complaints about the violation of its right to express itself, but it simply limited to assert that the administrative decision «without prejudice as to the substance, neither paralyzes the procedure, nor causes defenselessness (…) since the plaintiffs have been allowed to defend themselves in the sanctioning procedure in which precautionary measures were issued.”
However, during the trial, Conatel representatives admitted that their actions involved censorship, but they defended it by pointing out that the messages the group wanted to broadcast «could incite disturbances of public order and be contrary to the security of the nation»; and added that censorship «is a form of control that materializes in the power to prohibit in advance certain material before publicizing it.”
Finally, they pointed out that the Constitution allows censorship, since the right of freedom of expression “is not absolute.”
This ruling was preceded by another, the 706 one that on 12 July 2016 was issued by the same Chamber and was drafted by the Justice Barbara Caesar, in which it was rejected another complaint that executives and journalists of Globovisión filed against the same decision of Conatel. The answer was the same.
The rulings of the TSJ confirm a line of jurisprudence that has been maintained in the matter. In 2009, the Constitutional Chamber, in its judgment 834, endorsed that the government could interrupt the radio media’s broadcasts if it considers them necessary to guarantee the stability, arguing that «it is a governability measure.”
Extract of the Judgment
«The article 33 of the Law on Social Responsibility on Radio and Television (published in the Official Gazette of the Bolivarian Republic of Venezuela No. 38.333 dated 12 December 2005), in force by the time, granted the National Telecommunications Commission (CONATEL), the power to issue precautionary measures, either in the opening order or in the course of the sanctioning procedure (…) the adoption of precautionary measures by CONATEL are not definitive, nor resolve the merits of the case, on the contrary, they are aimed to avoid any damage that could be caused to the complainant, the user or the community, while the final decision of the sanctioning procedure is issued (…) In the specific case, the Chamber verifies that the contested measure, is an act of precautionary nature of instrumental character without prejudice as to the substance, neither paralyses the procedure, nor even less, causes defenselessness, since it is insisted it was aimed at avoiding serious damages in the collective receiving the messages broadcasted by the service providers VENEVISIÓN, TELEVEN, MERIDIANO TV, GLOBOVISIÓN, ONDA 107.9 FM and FIESTA 106.5 FM, by means of which it was intended to incite the community to commit actions that jeopardize public order while the final decision of the sanctioning procedure is issued».
