Panamanian government agrees to alter law article that gave it power to fine the media

The controversy generated in Panama by the regulation of a law that gives the executive branch of government the power to impose fines on the media may have arrived at a solution after a meeting between the government and media representatives.

The root of the controversy is in a law that at first glance has nothing to do with the media. Law 82 from 2013, criminalizes femicide and other forms of violence against women. Although it was approved three years ago, it grabbed headlines from the country’s main media outlets in recent days after the government submitted a proposal for its regulation.

The concern is specifically with Article 70 of the law that allows the Ministry of Government to impose fines of up to US $3,000 “if it is proven that any media outlets have committed discrimination or violence against women.” Nevertheless, this article had gone unnoticed until the Ministry of Government presented a proposal to regulate said law and to comply with the power that is granted to sanction media, lawyer Ernesto Cedeño explained to La Prensa.

The project presented by the Executive proposes the creation of the Directorate for the Promotion of Freedom of Expression, which among other functions, would have monitored all media and recorded all discriminatory, sexist and violent actions, among others, La Prensa added. It also required the media to register and provide information under oath.

According to Cedeño, the existence of an oversight entity could generate censorship. He added that the article in question is contrary to Article 13 of the American Convention on Human RightsLa Prensa reported. For this reason, on Nov.7, he filed a claim of unconstitutionality against Article 70 before the country’s Supreme Court, according to TVN Noticias.

Cedeño was not the only person concerned about the scope of Law 82 in terms of freedom of expression. Organizations such as the Forum of Journalists for Freedom of Expression and Information, the National Council of Journalism (CNP for its initials in Spanish) and the Panamanian Association of Broadcasting expressed their disagreement with the lawLa Prensa reported.

However, a solution seems to have been found. On Nov. 8, the Minister of Government, Milton Henríquez, along with other officials of the administration met with media executives.

According to a statement issued by the Ministry, after both parties agreed on the importance of a law that punishes violence against women, they also agreed that the right to freedom of expression could not be affected. In that sense, Henríquez promised to present another bill that repeals paragraph 7 of article 30 so that it is no longer valid, and changes article 70 so that a violation of the law is handled by the judiciary, according to the release.

Meaning that, although it was established that sanctions could be imposed on those who violate the law, this cannot be done by the Minister of Government, but rather by the judicial branch.

“Everyone present at the meeting believes, that a Minister should not have the power to fine media outlets,” Henríquez said, according to the statement.

According to the release, the initiative will be presented by the Minister in January 2017 and will address other laws that give the Ministry the same power to impose fines on the media. One of them, for example, is the law that protects people with disabilities.

For the head of the country’s National Institute of Women, Liriola Leoteau, the rights to freedom of expression and to live a free life are equally important, Radio Panamá reported.

“We hope that the media, as they have been, continue to be an arm of support for the fight against the crime of violence against women and femicide,” Leoteau said, according to Radio Panamá. “The media sitting at this table have further committed to supporting everything that is done, to reinforce, to strengthen the image of women and we have hope in this clear commitment that we can continue to reduce the rates of violence against women.”

The media effectively committed themselves to supporting initiatives that reduce any type of violence against women. “We publicly reiterate any support in which women are respected and that the media will be unyielding in supporting any initiative in favor of recognizing women,” said Guillermo Adames, a representative of the media, according to the Ministry’s statement.

“We must be cautious in regulating responsibilities”

Without speaking in particular about Law 82 and its provision on the imposition of fines on the media, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Edison Lanza, told the Knight Center that it is always necessary to have “caution” when regulating the issue of subsequent liability.

For Lanza, although it is true that concerns about expression that may affect groups that have historically been violated or excluded are valid, the right to freedom of expression protects any type of discourse except those expressions that invite hatred and violence for discriminatory reasons. However, an offensive or discriminatory discourse, per se, could not be subject to censorship.

“They are obviously condemnable and the media must establish mechanisms of self-regulation to eliminate all forms of violence and discrimination,” Lanza said. “But it’s also true that there are discussions that have to do with the public and with public debate that often unfortunately include these kinds of expressions. Therefore we must be very cautious in regulating subsequent liability for this type of discourse.”

The Special Rapporteur pointed out that punitive mechanisms are not the solution to eliminate discriminatory discourse because it is clear that in spite of everything “they often continue in society.” For Lanza, the best way to eliminate or combat this discourse is with public debate.

Although hate speech can be penalized, it must always be done in compliance with a strict test established by the American Convention on Human Rights, he explained. The restrictions for any speech, among other conditions, must be clear in a law, should not use criminal law to punish, and must be applied “obviously by the judiciary or an entity with guarantees of autonomy and independence.”

“Therefore the scope of restriction is very limited, and personally I think that we must promote non-punitive mechanisms like discussions, spaces for observation, media ombudsman. Different non-punitive mechanisms to promote a discussion on this, an ethical sanction in any case for those media that could commit some type of discriminatory expression,” he explained. “Especially because we have seen that in the region, sanctions [have been imposed] that, although they are not criminal [sanctions], are often disproportionate administrative sanctions that could endanger the functioning of the media.”​

Note from the editor: This story was originally published by the Knight Center’s blog Journalism in the Americas, the predecessor of LatAm Journalism Review.