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Media regulation in Brazil

The 1988 Constitution, like many international treaties ratified by Brazil, determines freedom of expression and the press in accordance with international codes. It protects access to information, the right of reply and privacy, and prohibits any kind of political, ideological or artistic censorship. The Constitution states that expressions of an intellectual, artistic, scientific and communicative manner are freedoms, independent of censorship or licensing, and it guarantees access to information for all.

However, legislation is too inconsistent to effectively guarantee freedom of expression and the situation has become worse in recent years. Campaigns are created by civil society, like the 2016 campaigns Calar Jamais (‘Shut up never’) based on cases of muzzling of media and harming journalists. Indicators show that the effects of the abuse of defamation laws have inhibited public debate and this represents a risk to freedom of expression. The OEA’s Special Report on Freedom of Expression in 2019 included the cases of journalists who were being persecuted politically for looking into allegations of irregularities in public funds (InterAmerican Commission on Human Rights, 2019). There is no legislation which supports censorship, but there are cases in which legal proceedings have created mechanisms blocking the treatment of certain issues or the citation of some names, creating a de facto censorship.

Access to information is upheld by law as part of the scrutiny of State and public institutions, but there is no ombudsman in public administration appointed to handle appeals. The culture of transparency and ethics in relation to the public’s right to access information is still a fragile one in Brazil.The main regulatory bodies relating to media and communication (Anatel, the Ministry of Communication, Ancine - Brazilian Film Agency, CADE - Administrative Council for Economic Defense and the Ministry of Justice) are not sufficient: there is a need for constant and permanent monitoring to prevent broadcasting services from being exploited by partisan interests. In addition, there are no opportunities for public participation, whether that is for creating public policies or for receiving state grants. The only body under Constitution that could discharge this role in the sector is the Council on Social Communication, which serves only to support Parliament.

Monopoly or oligopoly with regard to ownership of the means of communication is formally prohibited in Brazil by the 1988 Constitution, which states that only one body can provide one type of radio broadcast service in the same area. However, the failure to impose limits on creating networks and the lack of effective monitoring for conflicts of interest with relatives or partners of media company owners are all examples of how the constitution is not enforced. Even though Article 223 of the Constitution imposes the principle of complementarity on the broadcasting sector, in order to maintain diversity between private, public and state systems, it has never been enforced through regulation. Anatel, the regulatory body responsible for channel distribution, does not consider pluralism when allocating frequencies, which, in turn, results in a prevalence of commercial broadcasters.

A law published in 2011 reaffirmed the position on ownership by permitting telecommunication companies to invest no more than 30 per cent of their capital in producing programmes, at the same time limiting investment by producers and programmers in telecommunications companies to 50 per cent of their capital.The law also established quotas for the transmission of national content: a minimum of 3.5 hours weekly in a primetime slot, half of which should be produced by an independent Brazilian producer. These obligations are due to cease in 2022.

Granting concessions and permissions are determined through licensing processes, also defined by law, which state that the more influence and reach a broadcast service has, the more it can charge. As the decision not to renew a license is dependent on 40 per cent of the Congress’ votes (even if some serious irregularity has been committed) in roll-call vote, the licensee faces the possibility of being named and shamed, therefore making it very difficult to get back full legal right to its airwaves. In 2012, the Ministry of Communication published for the first time an annual plan for monitoring broadcasting services and license renewals became almost automatic. The only requirement made of license holders was to pay their taxes on time.

A maximum of one frequency channel per community radio station is permitted in each city. The combination of the one radio frequency per community, a maximum broadcast radius of 1 km, and the minimum distance of 4 km between broadcasters’ results in a maximum of only 20 per cent coverage within the municipality even if the radio stations were distributed in the best way possible. These limits can make it difficult to reach marginalized communities and prevents many communities from having a community radio station (Barbosa et al., 2017).

There are no positive economic measures to promote community media. Quite the opposite, legislation prohibits spreading commercial advertising. The station Canal Cidadania made it possible for community members to participate in the operating of municipal channels, but they have yet to make it a sustainable reality. However, FM radio transmitters with multiple frequencies have been deployed by civil society groups to create political awareness and community communication and media literacy across the country (Novaes and Caminati, 2019).

The range of community television is smaller still, since such stations do not have guaranteed space in the spectrum allocated to public television. Due to the limited reach of its signal, and being available only in a few municipalities, there is a low access rate to public broadcasting. Commercial broadcasters have a much larger reach. Although only 11 per cent of the municipalities have television generators, due to the relays and repeaters, television is available in 95 per cent of Brazilian municipalities.

Television digitalization has been mostly through pay TV. At the end of 2013, more than 28 per cent of subscribers were already watching channels in high definition. Complete changeover occurred in 2018, two years later than anticipated. Regarding radio, Brazil has not yet determined which digitalization standard will be adopted. In 2012, an Advisory Board was formed to discuss the standard of digital radio, but the Radio Digital conversion is still without definition.1

With regard to official advertising, there have been advances in the distribution of public funds from the state, trying to promote transparency and diversification. From 2003 to 2013, the number of media enterprises that received public funds from the federal government grew from 499 to 9,663. However, this was concentrated on TV channels, at 69 per cent of resources, and Rede Globo companies alone received nearly 74 per cent of these resources.

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