(Nov. 18, 2010) On October 8, 2010, the President of Bolivia signed the Law Against Racism and Any Form of Discrimination (Law 45, Gaceta Oficial de Bolivia (Oct. 8, 2010, http://www.gacetaoficialdebolivia.gob.bo/normas/verGratis/138670). The Law is designed to establish mechanisms and procedures to prevent and punish racist or discriminatory behavior within the legal framework of the Political Constitution and the international treaties on human rights to which Bolivia is a party. (Law 45, art. 1.)
The Law has given rise to heated opposition from journalists' associations and media owners, because they see in it a means of silencing the free press and suppressing freedom of expression. The government has defended its position by stating that the Law is not intended to regulate freedom of expression but to address a longstanding reality of racism and discrimination in a country of almost 68% indigenous population. (Defiende Bolivia ante OEA Ley contra Racismo y Discriminación, EL PORVENIR.COM (Oct. 28, 2010), http://www.elporvenir.com.mx/notas.aspnota_id=441569.)
The two positions must be viewed in the context of the ancestral divisions in Bolivian society, characterized by longstanding ethnic and racial conflict. In that society, racism has been evinced in public commentaries, attitudes, and behaviors ever since Bolivia's founding as a nation. (S. Waisbord, Regulating Hate Speech in the Bolivian Media: Underlying Issues, JURIST FORUM (Nov. 1, 2010), http://jurist.org/forum/2010/11/regulating-hate-speech-in-the-bolivian-m
Criticism of the Law
The Law's critics mainly oppose two provisions: article 16, which provides that media outlets that incite and promote racial hatred or discrimination will be subject to economic sanctions that may include the suspension of their licenses, a process that will be subject to regulation, and article 23, which provides for a new crime to be added in the Criminal Code, Title VIII, Book Two (Código Penal (Quiroz & Lecona, La Paz, 2010)) to penalize racism and discriminatory behavior.
Organizations of journalists argue that the Law violates several constitutional provisions One they cite is article 106, which provides that the state guarantees the right of communication and the freedom of expression, opinion, and information, as well as the right to rebuttal without censorship(Constitución Política del Estado (CPE) (Feb, 7, 2009), http://www.gacetaoficialdebolivia.gob.bo/normas/verGratis/36208). Another is article 107, paragraph 2, which provides that information and opinions published through means of social communication have to respect the principles of truth and responsibility, principles to be applied in compliance with the ethics rules of and self regulation by journalists and media organizations and the applicable law. (CPE, art. 107.2 & Nueva Ley contra el racismo Viola Constitución y Tratados Internacionales, LA PATRIA (Sept. 12, 2010), http://www.lapatriaenlinea.com/?nota=40960). This means that freedom of expression is subject to regulations that should be approved through a consensus of media and press organizations in the country.
The new Law also allegedly violates international treaties to which Bolivia is a party, such as the Chapultepec Declaration, which under article 10 states that no journalist or media outlet may be punished for broadcasting the truth. (Chapultepec Declaration (Mexico City) (Mar. 11, 1994), http://www.declaraciondechapultepec.org/v2/english/declaracion.asp.) In addition, article 19 of the Universal Declaration of Human Rights provides that all individuals have the right to freedom of opinion and expression, which includes the right not to be persecuted for their opinions, the right to investigate and gather opinions and information, and the right to broadcast them without limit by any means of expression. (Id.; LA PATRIA, supra; Universal Declaration of Human Rights (Dec. 10, 1948), http://www.un.org/en/documents/udhr.)
Attempts to Reconcile the Conflict
The different parties now are trying to mitigate the language used in the new Law by means of regulation. The government has called on the media and journalists' groups to participate in the process. It has organized a series of workshops that are currently underway in the cities of La Paz and Santa Cruz to debate the terms of the regulation of the Law. (Comenzó debate de reglamentación de Ley Antirracismo con protestas, EL MUNDO (Nov. 12, 2010), http://www.elmundo.com.bo/Secundarianew.asp?edicion=10/11/2010&Tipo=Politica&Cod=1
AMARC Bolivia (Asociación Mundial de Radios Comunitarias), the World Association of Community Radio Broadcasters, a network of community radios, federations and community media stakeholders in more than 115 countries, supports the spirit of the Law, but at the same time proposes some amendments to ensure that freedom of expression will not be in jeopardy. The proposed changes include incorporating international human rights standards in the language of the law, such as the ones used in the Pacto de San Jose de Costa Rica, in order to have provisions that are clear and in compliance with the due process principle. The crime of advocating discrimination or racism should be more precisely and expressly defined, AMARC contends, in order to make sure that any criminal sanctions for such conduct be limited to punishing acts that constitute genuine racism or discrimination and not be used to carry out political persecution. (AMARC Bolivia respalda la Ley Contra el Racismo y toda Forma de Discriminación y solicita cambios , AMARC (Oct. 6, 2010), http://legislaciones.item.org.uy/index?q=node/1786.)
AMARC members believe that the Law should keep a balance between due protection of the right to freedom of expression and the right of non-racial discrimination, guaranteed by international instruments to which Bolivia adheres, such as the American Convention of Human Rights (under article 13). (Id.) These standards also require that any restriction or sanction on the freedom of speech should be defined in a precise and clear way, assuring that the limitations imposed would not generate censorship. (Id.)