By Marcelo Moreira
The Brazilian Constitution, approved in 1988, dedicates an entire chapter to Social Communication. Its rules were considered modern and capable of maintaining pluralism in the country’s media. However, more than a quarter of a century later, most of its articles regarding social communication and media regulation have not been acted upon.
This may explain why self-regulation of journalism is an issue of hard debate among experts, media owners, journalists, the civil society and the government.
There is no specific board or council working exclusively to promote and carry out media self-regulation. On the other hand, Brazil has a complex system of laws and institutions that in some way undertakes the role of regulating the media.
The debate over the past 20 years has polarised. Some argue that as a democracy, the Brazilian society must defend the plurality of opinions, freedom of press and freedom of expression. And that to achieve this status of freedom, media regulation must take place under a framework in line with international standards and specifically under the supervision of an independent regulatory authority, with a group of members playing this role.
Others disagree. They say it is not true to affirm that media regulation does not exist in Brazil. The supporters of this point of view assert that the country does have laws and different boards and agencies that have the media under different kinds of regulations.
In this context, it will probably take some time before Brazil develops an independent regulation board for broadcasting and also national self-regulation boards for any kind of media platform.
The Brazilian Act for Telecommunications dates from 1962 and although it has been revised in the course of the years, there are calls for approving a new law capable of guaranteeing pluralism of opinions and a more democratic system of telecommunications. A recent campaign to change this act raised support from more than 1.3 million people.
In addition, the emergence of the Internet has added a new element to the discussion, considering that so far in Brazil there is no regulatory framework for the Internet. That is now under discussion.
The enactment of the new Brazilian Constitution 26 years ago brought the end of the country’s Press Act that had been in effect since 1967. In April 2009, by a majority decision, the ministers of Brazil’s Federal Supreme Court finally revoked the Press Act taking the view that the law was incompatible with the Constitutional principles of free expression. One of the important changes with the end of this law is that journalists no longer need a degree in journalism to work as professionals. This controversial impact led to strong protests from the National Federation of Brazilian Journalists (FENAJ).
The Press Act was passed in the first years of the Brazilian dictatorship and consolidated a number of restrictions on press freedom. It was criticised for establishing severe penalties for the journalists prosecuted for defamation. These crimes are now covered by civil and penal laws.
There were mixed feelings with the end of the Press Act. National associations that represent media and journalists approved its revocation, but both types of association now hold that new rules and parameters must be created for journalistic activities. For instance, there is no specific law for the right of reply. This fact, in the opinion of the National Association of Newspapers (ANJ) and the National Federation of Journalists is dangerous.
Without this regulation, they warn, the Brazilian press faces today the so-called ‘lawsuits industry’, which can be very harmful to the good practice of journalism by creating an atmosphere of fearfulness in the newsroom. Since 2011, the Brazilian Senate has been analyzing an act project to establish new rules and parameters for the right of reply.
During the second term of Lula’s presidency in Brazil, there was an attempt to create a Media Regulation Act. But all discussions related to it ended up in a drawer of a cabinet in the Federal capital of Brasilia. Even today, no one knows what they contain.
This report reflects on the present state of this discussion and on what the main players related to the matter think about media regulation and self-regulation.
The debate is underway and there are different views, but it converges on one point in common: Brazilian society must work hard to change the way we are seen when we talk about democracy and media not least because of the low international standing of the country. In this regard, the most recent report of the NGO Reporters without Borders, Brazil occupies the 108th position in the ranking of freedom of expression among 179 countries.
Self-regulation at the level of the individual
Brazil is a country of continental proportions and a population of over 200 million citizens. There are big cities such as São Paulo and Rio de Janeiro, with populations of 20 million and 6 million, respectively. And in the countryside, Brazil has very small cities, where the lack of infrastructure and poverty can be compared to the reality of poor villages in Africa. Not surprisingly, if the social and economic conditions are diverse, there are equally dramatic differences in the application of ethical principles in journalism.
In each of the 27 states of the Brazilian federation, there are at least two large newspapers and two large networks broadcasting journalistic programs. With such a huge territory, we have different levels of press freedom in the newsrooms. Based on the opinions of media experts in the country, we can say that there is more freedom for journalists in big urban centres than in the small ones.
A journalist working in Brazil’s countryside can face several threats. In the past 5 years, over 20 journalists were killed in the country, according to the International News Safety Institute (INSI). Most attacks take place in the countryside and in most of cases, the journalist killed was covering a local story on corruption, investigating groups that for decades have exercised power, control and negative influence over their localities. This reality creates conditions of fear in the newsroom and self-censorship, which itself weakens democracy.
Guilherme Canela, UNESCO Advisor in Communication and Information, highlights the regional situation: “In the countryside, there are political patrons and drug dealing, along with less vigilant institutions”. In big cities, on the other hand, journalists have more freedom to act according to their conscience, except for some types of taboo contents.
In 2002, a turning-point in this crisis of violence was reached in the aftermath of the shocking killing of the well-known journalist, Tim Lopes — killed by drug traffickers in a favela of Rio de Janeiro. This led to the creation of the Brazilian Association of Investigative Journalism (ABRAJI).
Gathering a board of distinguished journalists from large newsrooms from across the country, ABRAJI plays an important role in protecting journalists, defending ethics and creating tools that allow young journalist to improve their skills. ABRAJI is active in denouncing violence against journalists in Brazil to combat impunity to ensure that anyone who is guilty of an attack against a journalist can be brought to justice.
Because of ABRAJI’s work the Brazilian government has invited associations of journalists to create a working group to discuss measures that may guarantee press freedom. Journalism associations such as the National Federation of Journalists (FENAJ) and the Brazilian Association of Journalists (ABI) have joined ABRAJI in this working group. One of the issues currently under discussion is the need to make crimes against journalists in Brazil a Federal matter and to take them out of the hands of regional authorities alone. ABRAJI is also promoting fresh discussion on the creation of a code of ethics for journalists.
At the same time, and as this report is being prepared, there is a heated discussion between journalists who work for big media organisations and the so-called alternative media, including small groups mostly using blogs and internet websites.
These groups contend that freedom of press is not respected in big media outlets. They argue that important events and issues are not brought to public attention.
This discussion is not exclusively found in Latin America, but in Brazil it has become a passionate discourse and, unfortunately, has also led to cases of violence against journalists in the past two years.
Between June 2013 and February 2014, ABRAJI recorded 117 attacks against journalists during the coverage of protests in the streets. As the population went to the streets to demand a better society, journalists have been attacked both by the police and by protesters angry over the coverage and editorial policy of large media outlets.
In February 2014, cameraman Santiago Andrade was killed by a bomb thrown by protesters in downtown Rio de Janeiro and his death became a symbol of this discussion.
Much needs to be done to reduce the temperature of this debate and to end such feelings of mutual anger between the two groups – professional journalists and the alternative media. The discussion is important, indeed it can help frame the future of public policy regarding journalism and free expression, but it must be held in an atmosphere of tolerance and mutual respect.
Self-regulation at the level of media enterprises
Nowadays in Brazil there is a lack of data for precisely defining the self-regulation of journalism at enterprise level. Although the country does not have a self-regulation board for journalism, media are increasingly concerned that they should be more transparency in their editorial policy for the public.
While it is generally understood across the world of journalism that it is positive for democracy when a newspaper clearly states its principles, in Brazil there is still a lack of transparency in many media groups regarding their editorial policy and principles.
This bad practice creates an information deficit for the audience and reduces accountability because it is not easy for readers to complain about a media company and its journalistic work.
Each media organisation is responsible for its own accountability and strategy, but transparency as a whole is poor. Even if there are practices such as ombudsmen and letters by the readers, it is difficult to measure how efficient they are.
“The reader must know what the rules of the game are and how he or she can interact. There is still a long way to go”, says Guilherme Canela, from UNESCO.
But there are some positive developments. The National Association of Newspapers (ANJ) has affiliated members around the entire country and has created its own self-regulation code. The code is a recommendation for members and is not obligatory, but as ANJ president has stated, “this code confirms our mission: to make journalism with independence and responsibility”.
The ANJ summarises its programme in five topics:
- Recognition and publication of apologies for possible errors;
- Publishing letters and emails from readers;
- Promoting channels to listen to the readers;
- Forums for critical analyses; and
- Process of relations with the readers.
The ANJ also recommends that newspapers must appoint internal ombudsmen in their newsrooms. There has been little enthusiasm to adopt this approach and although there are hundreds of newspapers in Brazil, only two of them have appointed editorial ombudsmen – Folha de São Paulo, in São Paulo, SP, and O Povo, in Fortaleza, Ceará.
Journalist José Roberto de Toledo, president of ABRAJI, welcomes the existence of ombudsmen: “The creation of the ombudsman-role was a step forward in the Brazilian press. It has increased the sense of criticism in regard to what is published and it seems to have stimulated other newsrooms to adopt self-regulation mechanisms. Unfortunately, it is still limited to the minority of the companies”.
The Globo Network, one of the largest media groups in Brazil, has recently released its editorial principles. Journalist Ali Kamel, director of Globo TV (speaking on his own behalf and not for the company) says that the editorial principles play the role of self-regulation for Globo: “They [the editorial principles] were written with this purpose. It was a decision of Globo’s shareholders. The editorial principles have always existed in the company, but they were intuitive and now written down,” he says. “Then came a moment when the shareholders decided that these practices, which have been in place for 100 years, should be put on paper, so that not only the internal staff but also the audience and the wider public understand them. Thus they may judge if what we broadcast or publish in newspapers or websites agrees with what we say that we do”.
These steps taken by media companies are modest, but they open the door to more corporate social responsibility inside journalism and media. Brazil’s emergence as a regional and global economic and political power has placed more emphasis on the need for creation of a stable democracy. Media organisations play a key role in that process and the more they can display the principles of transparency, good governance and accountability the more journalism will emerge as a progressive force in society.
Self-regulation systems at a national level
While media owners refuse to have a self-regulation council or board at enterprise level, the issue of regulation at national level has been on the agenda of the Brazilian government for many years, and particularly a project to regulate the electronic media.
This task was assigned to Franklin Martins, a prominent Brazilian journalist who under the government of President Luiz Inácio Lula da Silva was the chief-minister of the National Secretariat of Social Communication.
Franklin states there is no need for regulating newspapers, because they are a totally private business. But he strongly argues it is mandatory that the electronic media, as a public concession from the government, is regulated: “In Brazil, every public service is regulated. TV Channels and radio stations are public concessions. So why should they not be regulated?”
But his dreams have not come true. At the end of Lula’s government, he left the project to the new President Dilma Rousseff, who was elected the first woman President of Brazil. Although both Dilma and Lula belong to the same party (PT), they do not share the opinion that the media in Brazil should be regulated. She has stated several times that it is not necessary.
This division of opinion is also reflected inside journalism. Jânio de Freitas, former director of newspapers and now a columnist of Folha de São Paulo, affirms that a regulation system is an “obscure matter in Brazil”.
Alberto Dines, who managed important newsrooms in the 1970s and is now editor-in-chief of Observatório da Imprensa – a television programme that analyses the performance of Brazilian media – says there is no regulation or self-regulation because the media companies used to say that they could lead to censorship. But it is, he says, “an old-fashioned and wrong way of seeing it”.
In order to demonstrate that problems might arise even in countries with self-regulatory systems, journalist Ali Kamel mentions the example of the recent scandal that led to the closing of the 168-year-old newspaper News of the World, owned by billionaire Rupert Murdoch in London.
“In England, the self-regulatory body that was created has already decided that it will not submit to the Royal Charter [on self-regulation of the press]. So it is useless,” he says. “But why is it useless? Because what happened with “News of The World”, for example, was a crime! And what was the obvious consequence? The owner of the newspaper had to close it.
“He had to close a newspaper with a circulation of 2.6 million copies each Sunday. A newspaper he had owned since 1969, but which was much older than that. And there is more to it. The British justice system and rule of law was completely equipped and prepared to punish. And so is the Brazilian justice and so is the US justice.
“People were prosecuted, people were arrested and there are people in jail”.
Because of the News of the World scandal, British Prime Minister David Cameron announced a public inquiry, known as the Leveson Inquiry which investigated phone hacking and bribery of police officers by journalists at the newspaper.
Cameron and other political leaders also decided to close and replace the Press Complaints Commission, which was the English self-regulatory body for the British press. The new body – the Independent Press Standards Organisation – was launched this year, but is dominated by the industry and has refused to accept monitoring of its management by an independent legally-defined body.
Back to Brazil, so far there have been unsuccessful initiatives towards creating a self-regulatory system. The National Association of Radio and TV Owners (ABERT), for instance, has its own self-regulation code, approved in the 1990s. It was considered very powerful and with strict rules, but was never applied. There was no agreement between ABERT members, and therefore it has never worked.
If the very idea of self-regulation brings a good deal of discussion and different opinions, the same happens in regard to the need for a regulatory board for the Brazilian media. While some groups defend its creation, others oppose this idea by reasoning that there is already in the Brazilian culture a system that plays the role of regulation.
Research conducted by UNESCO about the regulatory environment in Brazil listed nine different organisms that in different aspects do regulate the media. They are:
- National Agency of Telecommunications (controls the electronic spectrum both for radio and television);
- Ministry of Communications (makes the policy for communication);
- Secretariat of Social Communication of the Brazilian Presidency (develops strategies for public communication);
- Ministry of Justice (classifies television broadcasts establishing the proper hour for broadcasting and parental advisory);
- National Cinema Agency (responsible for the movie market);
- Sanitary Vigilance Agency (responsible for public health. Monitors smoking ads, for example);
- Council of Economic Law (works to guarantee fair competition among companies);
- The Justice System (where citizens can submit lawsuits).
Journalist Ali Kamel affirms that considering all these departments, it is simply untrue to say there is no regulation for the Brazilian media:
He says: “There is regulation and this is our model that works quite well. Any error or mistake made by the Brazilian press can be punished. When a journalist defames someone or does anything similar to that, he can face a lawsuit”.
Indeed, warns Kamel, if Brazil had a board of self-regulation for the media, it could be dangerous: “I think there’s too much regulation. Maybe it is too much to say it, but more draconian than in other countries. That is why I do not think there is the need for another institution in a cultural environment as ours. Imagine what could happen if we would concentrate the entire regulation system in one single body with nine members (for instance). This would be a sad thing”.
Whether or not there is a need for having or not a self-regulation system, civil society has some good examples of peer review of how journalists are working. The country has quite active groups that play the role of monitoring the media.
An example is the weekly TV show Observatório da Imprensa [“Press Observatory”], which has been broadcasted in Brazil for 15 years. The programme is hosted by journalist Alberto Dines and discusses issues related to good practices of journalism in the country.
Dines, who works as its anchorman and editor-in-chief, believes that in the future there will be some form of regulation of media in Brazil.
“There are new players nowadays, such as the Internet, and also telecommunication companies that are now producing TV contents,” he says. “Nobody knows exactly what kind of impact this new players can have on the business of media organisations. So there will soon be a demand by them for regulations”.
Can self-regulation play a role for the future?
With so many different and passionate opinions, the conclusion is that it is impossible to foresee if Brazil, as other democracies, will at any time soon have a system of self-regulation specifically for media.
The government, the community of media and journalists and society at large are already used to a system that in some way does fulfill the Brazilian needs, even if it is not organised as a coherent, single self-regulating framework. On the other hand, it is true that the story is unfinished. Press freedom is not a reality in many parts of the country and in others where it exists, it is often in twilight conditions.
Some journalists working in newsrooms are not yet fully conscious of the role they should play in society. And there is no law to protect the public from monopoly or oligopoly of the media.
On the positive side the debate is up and running and things are changing for better. In a globalised world, Brazilians are well plugged into information about what is happening abroad in this field. They can test whether it could work here.
On their side large media companies, increasingly concerned with their role in society and aspiring to keep large audiences and profitable business, know that for their own credibility they have to adopt good principles in their work.
Everyone is aware that to strengthen democracy and to improve society, the country needs better, more accountable media. That should encourage journalism that is ethical and serves the people. When that happens everyone in Brazil will benefit.