DISCRIMINATORY ALLOCATION OF OFFICIAL PUBLICITY
1. The murder of investigative reporters, a state's closure of a newspaper, vows of violence against journalists by security forces, or the refusal to allow certain television programs to air, are strong examples of direct violations of the right to freedom of expression. However, underlying these blatant violations are more subtle, and oftentimes more effective, indirect ways in which States curtail freedom of expression. Because such indirect violations are often obscure, quietly introduced obstructions, they do not compel investigation, nor do they receive the widespread censure that do other, more direct violations.
2. To call attention to these types of violations, the Office of the Special Rapporteur for Freedom of Expression has undertaken to study the use of official publicity as an indirect restriction on the free circulation of ideas. The discriminatory allocation of official publicity is only one possible manifestation of an indirect restriction to the right to freedom of expression. However, the Special Rapporteur for Freedom of Expression believes that this topic merits special attention in the Americas, where media concentration has historically promoted the abuse of power by governments in the placement of their advertising revenue.
B. Official Publicity
3. There are two types of government publicity: unpaid and paid. "Unpaid" publicity includes press releases, the texts of legislation or legislative body meetings, and information which carries government support but which may be paid for by a private party. There are often legal obligations for national media sources to release this publicity, as a condition of the media outlets' use of the state's available frequencies and airwaves. Such conditions are usually included in states' fundamental broadcasting and press laws. "Paid" publicity includes paid advertising in the press, on radio and on television, government-produced or -sponsored software and video material, leaflet campaigns, material placed on the Internet, exhibitions, and more. Governments use paid publicity to inform the public about important issues (i.e. ads pertaining to health and safety concerns), to influence the social behavior of individuals and business (such as encouraging voter turnout in an upcoming election), and to generate revenue through various programs (oftentimes through state-owned industry). The use of the media to transmit information is an important and useful tool for states, and provides much-needed advertising profits for media outlets.
4. Media outlets' production costs are high, and the most lucrative way to cover these expenses is through extensive advertising. Traditionally, government advertising budgets have comprised a substantial percentage of media outlets' total advertising investments. Generally, exact numbers of advertising expenditures are not available to the public. Yet, there are reports from many media outlets that they receive 40-50% of their revenue from the government. Government publicity can often provide the means for voices that, without the aid of government funding, would not be able to survive financially. The increasing consolidation and cross-ownership of media outlets means that smaller newspapers, radio and television stations are facing harder competition for available advertising revenue. The other major providers of revenue, large corporate advertisers, often only place ads in media sources that are favorable to their business interests, avoiding those outlets that report on financial scandal, environmental damage, or labor disputes. Government publicity can offset the vast communications resources controlled by corporate or wealthy interests, in that it can amplify the voices of local journalists and media, smaller media, and those media critical of corporations.
5. Often, a large portion of domestic government expenditures are on advertising. There is very little public information about the criteria used in making allocation of advertising decisions. States distribute advertising to various media outlets often without legal restraint or overview. This results in selectivity of publicity placement. A state's decision to continue or to suspend advertising in a media source will have profound effects on the annual advertising revenue of that source.
6. Historically, a sizable part of the productive capital of media outlets in the Americas has originated in the allocation by the States of official publicity. This fact, combined with the discretional selectivity of publicity placement, creates the danger of self-censorship to avoid the financial hardships that might be faced by the media sources which are denied official publicity. A recent study of media ownership structures in 97 countries has found that:
(…) monopolies or concentrated ownership of the media industry that provide control over information to any individuals or organizations, public or private, will reduce the effectiveness of media coverage, and it now regularly intervenes in content decisions.
7. In the framework of distribution criteria, there are both negative and positive discriminatory allocations of publicity. Negative allocation would be given to an individual or media outlet in order to induce them to not report unfavorably on those in power. Positive allocation requires the recipient to engage in favorable expression in order to receive government revenue. Both positive and negative discriminatory allocation can constitute an infringement on free speech; negative allocations are content-based forms of coercion that force media outlets to be silent on issues of public interest, whereas positive allocations may artificially distort a public debate by inducing some who otherwise would have taken a contrary position (or chosen not to speak at all) to support the government's views.
8. Three types of government media subsidies, which can be analogized to positive allocations of government advertising, have been identified: categorical, viewpoint-based, and judgmental necessity.
9. A categorical decision to award advertising is a viewpoint-neutral choice to fund a particular category, subject or class of expression (such as choosing to advertise in the medium of national newspapers, provincial television, or local radio frequencies). Such a decision may be consistent with freedom of expression, based on government goals, but if such a positive allocation is made according to discriminatory criteria, it violates freedom of expression.
10. In viewpoint-based decisions, the criteria for awarding funding is based entirely on the viewpoint expressed by a particular media outlet. Clearly this is the most blatant form of a violation of freedom of expression in official publicity.
11. Judgmental necessity pertains to the need of government officials to differentiate between a variety of media sources within one medium (in which national newspaper, among a group of papers with similar distribution and reach, will they place advertisements?). For such determinations to be in keeping with freedom of expression principles, they must be based on criteria "substantially related" to the prescribed viewpoint-neutral purpose. For example, if a state's goal was to promote sales of monthly passes on its city-wide public transportation system, it could legally choose to advertise only in newspapers largely distributed within that city. Newspapers from other regions that may have a very small distribution within that city would not be unfairly discriminated against by the government's choice not to advertise with them. The criteria of being a paper with a majority of your distribution within the city is substantially related to the program's viewpoint-neutral purpose of promoting use of its public transportation system, and thus, non-discriminatory.
C. Discriminatory Allocation of Official Publicity
12. There exists no inherent right to receive government advertising revenue. It is only when a state allocates advertising revenue in discriminatory ways that the fundamental right to freedom of expression is infringed. A state could deny advertising revenue to all media outlets, but it cannot deny publicity income only to specific outlets based on discriminatory criteria. Although states may make determinations to award advertising based on the percentage of the population reached by the source, frequency strength, and similar factors, determinations to award or cut off publicity based on coverage of official actions, criticism of public officials, or coverage that might hurt officials' financial contributors amount to penalizing the media for exercising the right to freedom of expression. It is possible that government advertising is so central to an outlet's operation that the denial of it will have as much adverse impact as would a fine or prison sentence. Because their hopes for advertising revenue hinge upon a favorable allocation of official publicity, media sources will be compromised and effectively forced into producing reports favorable to the ultimate publicity decision-makers.
13. Indirect obstruction through distribution of official publicity acts as a strong deterrent to freedom of expression. Although jurisprudence in this area is limited in the Inter-American System, the American Convention on Human Rights provides a legal framework against such indirect violations, establishing that discriminatory allocation of official publicity, based on the publication or broadcast of critical reports, is a violation of the guaranteed right of freedom of expression.
D. Inter-American Standards
14. The controlling legal document concerning human rights in the Americas is the American Convention on Human Rights. Concerning freedom of expression, the Convention states in Article 13(3):
The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
15. The Declaration of Principles on Freedom of Expression was approved by the Inter-American Commission on Human Rights as a tool for interpreting Article 13 of the American Convention. The Declaration has been influential in reflecting the emerging regional standards on this issue. It states in Principle 13:
The exercise of power and the use of public funds by the state, the granting of customs duty privileges, the arbitrary and discriminatory placement of official advertising and government loans, the concession of radio and television broadcast frequencies, among others, with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law. The means of communication have the right to carry out their role in an independent manner. Direct or indirect pressures exerted upon journalists or other social communicators to stifle the dissemination of information are incompatible with freedom of expression.
16. The Declaration of Chapultepec was developed by experts in freedom of expression. The Inter-American Press Association sponsored the Declaration and went to Latin American leaders asking for their support and signatures. Though not legally binding, the Declaration is a demonstration of the will and support of many leaders to upholding freedom of expression rights. It states explicitly in Principle 7 that:
Tariff and exchange policies, licenses for the importation of paper or news-gathering equipment, the assigning of radio and television frequencies and the granting or withdrawal of government advertising may not be used to reward or punish the media or individual journalists.
17. In an international recognition of the illegality of discriminatory allocation of official advertising, the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Cooperation in Europe Representative on Freedom of the Media, and the Organization of American States Special Rapporteur on Freedom of Expression, stated in a joint declaration:
Governments and public bodies should never abuse their custody over public finances to try to influence the content of media reporting; the placement of public advertising should be based on market considerations.
E. The European Experience
18. The right against arbitrary allocation of government advertising has also been recognized by the European Court of Human Rights. In the case of Vgt Verein gegen Tierfabriken v. Switzerland, the company responsible for advertising on the national broadcaster had refused to broadcast a commercial which had been submitted by the applicant, an association for the protection of animals. The commercial, which intended to deter meat consumption in Switzerland, was refused for broadcast on the grounds that it was clearly political in character. The Court concluded that the restriction in question amounted to a violation by the State of Switzerland of the right to freedom of expression as guaranteed by Article 10 of the European Convention. In evaluating whether the interference was “necessary in a democratic society,” the Court expressed that:
It is true that powerful financial groups can obtain competitive advantages in the area of commercial advertising and may thereby exercise pressure on, and eventually curtail the freedom of, the radio and television stations broadcasting the commercials. Such situations undermine the fundamental role of freedom of expression in a democratic society as enshrined in Article 10 of the Convention, in particular where it serves to impart information and ideas of general interest, which the public is moreover entitled to receive.
19. Though the Vgt Verein gegen Tierfabriken case refers to the prohibition of private political advertising, not of government advertising, it effectively struck down a law that led to the discriminatory allocation of advertising, supporting the idea that allocation of advertising, whether done by private or government entities, may not be grounded in clearly discriminatory criteria. In examining the contested measure in the light of the prohibition of political advertising as provided in section 18(5) of the Federal Radio and Television Act, the Court addressed the issue that the law applied only to radio and television broadcasts, and not to other media such as the press:
[W]hile the domestic authorities may have had valid reasons for this differential treatment, a prohibition of political advertising which applies only to certain media, and not to others, does not appear to be of a particularly pressing nature.
20. In expounding the meaning of Article 10.2 of the European Convention, the European Court of Human Rights understood the requirement "prescribed by law" to prohibit insufficiently precise laws and unacceptable discretionary powers.
21. Although the Court has not specifically addressed this issue in the context of government advertising, it has addressed the existence of unclear laws and overly wide discretionary powers as a violation of freedom of expression in the case of Autronic A.G. v. Switzerland. In this case, the European Court questioned whether the broadcast license-granting laws of Switzerland were sufficiently precise since "they [did] not indicate exactly what criteria [were] to be used by the authorities in determining applications." The Court did not decide the issue in that case, dismissing it for other reasons, but warned that such license-granting laws that did not establish clear criteria could constitute a violation of freedom of expression.
22. The decision in Herczegfalvy v. Austria affirms the need of precise legislation to fulfill the "prescribed by law" requirement of Article 10 of the European Convention. In this case, the European Court did hold restrictions on the freedom of movement of psychiatric detainees to be insufficiently precise to fulfill the "prescribed by law" requirement of Article 10 (and Article 8), because they failed to specify the scope or conditions for the exercise of discretionary power. The European Court held that the lack of any indication as to the kind of restrictions permitted, their purpose, duration, and extent, and the lack of arrangements for the review of any restrictions imposed, led to the deficiency of a minimum degree of protection against arbitrariness.
23. Insufficiently precise laws and unacceptable discretionary powers constitute freedom of expression violations. It is indeed when laws pertaining to allocation of official publicity are unclear or leave decisions to the discretion of public officials that there exists a legal framework contrary to freedom of expression.
F. Legal Framework in Member Countries
24. This section is intended to provide an overview of the legal provisions on the allocation of official publicity in the countries of the OAS. The laws and legal standards mentioned below were compiled through searches of the online databases of each respective State, as well as through information received from a number of different sources.
25. In order to obtain a more accurate description of the legal framework on the allocation of official publicity in the countries of the Americas, in September 2003 the Office of the Special Rapporteur for Freedom of Expression issued a questionnaire to the Permanent Representatives of the OAS Member States inquiring about the laws in effect in each state on this issue. The questionnaires set out the laws found to be relevant and in effect regarding the allocation of official publicity, and gave the opportunity for the States to confirm, deny, or update such information.
26. The analysis of the information obtained by the Office of the Special Rapporteur reveals, in general, an absence of legislative provisions regarding the allocation of official publicity. This section only reports on the legal framework of the States which have adopted regulations on official publicity. In some countries, it was observed that, notwithstanding the absence of specific legislation in this regard, there exist provisions which may provide a remedy to a discriminatory allocation of official publicity.
27. The official response from Argentina to the questionnaire sent by the Special Rapporteur points out that National Law 22.285 of Broadcasting (Ley 22.285 de Radiodifusión) governs publicity rules under the competence of the Committee of Broadcasting (Comité de Radiodifusión, COMFER):
Art. 69. Publicity Contracts. Publicity to broadcast shall be contracted by the bearer of services directly with advertisers; or with publicity agencies previously registered in the Federal Broadcasting Committee acting on behalf of identified advertisers.
Art. 72. Transmissions without charge. The bearers of broadcast services shall perform transmissions without charge in the following cases:
a) That contemplated in Article 7; [referring to issues of national security]
b) Mandatory national, regional, or local broadcasts, as ordered by the Federal Broadcast Committee;
c) In the face of serious national, regional, or local emergencies;
d) By requirement of the authorities of civil defense;
e) To broadcast messages or warnings related to dangerous situations that affect the means of transportation or communication;
f) To broadcast messages of national, regional, or local interest ordered by the Federal Broadcast Committee, up to one minute and thirty seconds per hour;
g) For the broadcast of the programs foreseen in Article 20 [educational programs] required by the Minister of Culture and Education, as well as for the treatment of themes of national, regional, or local interest that the Federal Broadcast Committee authorizes, up to a maximum of seven percent (7%) of the daily broadcasts.
28. Article 12 of Decree No. 1771/91 modifies Article 72 b) of Law No., 22.285, allowing the Secretariat for Communications Media of the Presidency (Secretaría de Medios de Comunicación de la Presidencia de la Nación, SMC), in cases of urgency, to request COMFER to coordinate with the National Commission of Telecommunications (Comisión Nacional de Telecomunicaciones, CNC) the use of the compulsory national broadcasting system to allow messages to reach the stations.
29. Article 31 of Law No. 25.600 on Financing of Political Parties (Ley 25.600 de Financiamiento de los Partidos Políticos) provides that the State will grant spaces in the broadcasting media to the parties or alliances that put forward official candidates.
30. Decree No. 2507 of 2002 approved the statute for the State Association Télam (Télam Sociedad del Estado) for its operation under the jurisdiction of the SMC. The association is empowered to plan and contract publicity space and produce the official publicity requested by the different sectors of the national government.
31. Decisions concerning allocation of state advertising in Argentina are most often made by the administrative heads of the various government entities requiring advertising space. Other decisions are made by the executive branches of the various provincial governments. There appear to be no official national criteria for determining allocation of advertising. Some provinces have specific legislation allowing for oversight of government decisions.
32. In Bolivia, there are few legal norms specific to advertising and there appears to be no official oversight of government advertising practices. Bolivia's only law relating to advertisements and announcements from the government is contained in an addendum to Article 43 of Law 1632, the Telecommunications Law, which states:
ADDENDUM TO ARTICLE 43, RANK OF LAW
Art. 67.- Radio stations must transmit free of charge in the following cases:
a) As stipulated in the previous article.
b) Serious national emergency, war or disruption of public order.
c) Messages or notices related to the safeguard of human lives and ships, aircraft or naval or air devices in dangerous situations.
d) Civic and literacy programs.
e) Announcements of general interest, commercial free, up to ninety seconds per hour, upon the request of the General Telecommunications Directorate.
33. In December 2001, the Senate of Bolivia approved a new electoral code. Article 119 of the new code would require the media to register with the National Electoral Authority (Corte Nacional Electoral, CNE). The CNE would decide which media could publish election advertisements in the weeks prior to the voting, and thus which media would receive the large revenue such advertisements generated. The law would oblige political parties to deal only with these media or risk punishment, ranging from fines to suspension of a newspaper for a period to be decided by the CNE. Media that did not charge the price set for the ads by Article 119 would also be punished. However, after extensive lobbying by journalism organizations, Congress approved a law on April 30, 2002, determining that Article 119 of the Electoral Code would not be in effect for the June 2002 general election. Free press groups then sought the repeal of Article 119, so that it would not be enforced in future municipal or general elections. Such a repeal has not yet been accomplished.
34. In Canada, the only national law specifically dealing with advertising regulation concerns elections. The Broadcasting Act states:
10.(1) The [Canadian Radio-television and Telecommunications] Commission may, in furtherance of its objects, make regulations
(e) respecting the proportion of time that may be devoted to the broadcasting of programs, including advertisements or announcements, of a partisan political character and the assignment of that time on an equitable basis to political parties and candidates
35. Provincial laws in Canada often go further, as evidenced by this law of Ontario:
Official Notices Publication Act:
2.(1) Unless another mode of publication is authorized by law, there shall be published in The Ontario Gazette,
(a) all proclamations issued by the Lieutenant Governor;
(b) all notices, orders, regulations and other documents relating to matters within the authority of the Legislature that require publication; and
(c) all advertisements, notices and publications that are required to be given by the Crown or by any ministry of the Government of Ontario, or by any public authority, or by any officer or person. R.S.O. 1990, c. O.3, s. 2 (…)
4.(1) The Queen's Printer for Ontario may establish a schedule of rates for publishing information in The Ontario Gazette and for purchasing subscriptions to it and copies of it. 2000, c. 26, Sched. J, s. 3.
36. In April 2001, the Chilean Senate approved the new Law 19733 on Freedoms of Opinion and Information and the Practice of Journalism (Ley 19733 sobre las Libertades de Opinión e Información y Ejercicio del Periodismo), known as the Press Law. The law eliminated Law 16643 on Publicity Abuses (Ley 16643 sobre Abusos de Publicidad), but does not specifically address allocation of official publicity. This Press Law explains the law on freedom of opinion and information and the regulations pertaining to the profession of journalism. The law deals with general provisions, the practice of the profession of journalism, formalities of the operation of the social communications media, violations, crimes, liability, and proceedings.
37. The Official response from the State of Colombia to the questionnaire sent by the Special Rapporteur referred to a number of laws in the country which are relevant to the allocation of official publicity.
38. Law No. 14 of 1991 establishes and regulates the functioning of the Television and broadcasting service in Colombia and establishes the National Institute of Radio and Television (Instituto Nacional de Radio y Televisión, Inravisión) and the National Television Council (Consejo Nacional de Televisión). Article 29 of Law No. 182 of 1995 establishes that:
Except for provisions in the Constitution and the law, the contents of television programming and advertising shall be freely expressed and transmitted, and are not subject to censorship or prior control. However, programming and advertising shall be classified and regulated by a section of the National Television Commission, so as to promote quality, guarantee compliance with the purposes and principles which govern television as a public service, protect the family and the more vulnerable segments of the population, particularly children and young people, assure harmonious and integral development, and promote Colombian broadcasting.
39. Decree 1982 of 1974 regulates public spending by the organs in charge of administering the funds of the Treasury. The official response from Colombia also mentioned Decree No. 1737 of 1998, which governs rules of austerity and efficiency in public administration.
40. The official response from Costa Rica to the questionnaire sent by the Special Rapporteur shows that, although there are no specific laws in Costa Rica pertaining to the allocation of official publicity, there are a few norms which provide a framework for the distribution of official publicity by the government. Regarding privately owned media, the government can make allocation of publicity decisions through the procedure established by the Administrative Contracting Act (Ley de Contratación Administrativa), by means of the approval of an "Information and Publicity" budget in each Ministry. Regarding publicly owned media, the 1993 Organic Law of the National System of Radio and Cultural Television (Ley Orgánica del Sistema Nacional de Radio y Televisión Cultural) created a communications network composed of television, radio, and written media outlets, through which the State can distribute official publicity.
41. In Cuba, the role and duties of the press are spelled out in the Communist Party’s Program Platform and the resolution approved at the Party’s 1st Congress (1975) concerning mass media. Private ownership of news media is strictly prohibited under Article 53 of the National Constitution. The Constitution further stipulates that state ownership of the press and other mass communication media “ensures their exclusive use by the working people and in the interests of society.” The Department of Revolutionary Orientation (DOR) under the Ideological Secretariat of the Communist Party of the State's Program Platform was created in the mid-1960s and handles propaganda and ideology for the government and designs and carries out official policy concerning the news media. Due to these regulations, media are totally dependent on the state both for funding and for the right to operate.
42. In the Dominican Republic, there is no specific law regulating government allocation of advertising, but the Dominican Institute of Telecommunications is the established regulatory body that oversees telecommunications throughout the Dominican Republic and implements the General Telecommunications Law No. 153-98. Under that law, the board of the Institute is charged with overseeing inappropriate activity in telecommunications, including private and government activity.
43. In Ecuador, there are no specific laws regulating government allocation of advertising. The Superintendent of Telecommunications regulates the media industries. A Special Committee was formed for oversight of all advertising in the Consumer Protection Law (Ley de Defensa del Consumidor) of 1990.
44. In Haiti, there are no specific laws regulating government allocation of advertising. The Haitian Constitution provides:
Journalists shall freely exercise their profession within the framework of the law. Such exercise may not be subject to any authorization or censorship, except in the case of war.
45. In Jamaica, the Broadcasting and Radio Re-Diffusion Act and the Television and Sound Broadcasting Regulations refer to advertising limitations in Sections 8 and 9 (i.e. alcohol advertising, etc.) but do not refer to restrictions or guidelines on government advertisements.
46. The official response from the government of Mexico provides information about agreements on general norms for government spending; norms regarding government spending on publicity, official publications, and communications media; and guidelines for the orientation, planning, authorization, coordination, and supervision of media strategies, programs, and campaigns of government entities and dependencies. Additionally, information on actual federal expenditures in 2003 was provided. This information was received by the Office of the Special Rapporteur as the drafting of this report was being concluded; the Office will analyze this information more fully in the future.
47. The official response from Nicaragua to the questionnaire sent by the Special Rapporteur points out that Article 68 of the Political Constitution of the Republic of Nicaragua states that:
The state shall ensure that media are not subjugated by foreign interests or any economic power monopoly. The law shall regulate this matter.
48. In Nicaragua, the Law of Government Contracting (Ley de Contrataciones del Estado) specifies in its Article 25 that the providers of the State must be registered in the Registry of Providers of the State, and must comply with legal requirements such as having fiscal solvency and a certificate of registration. The Official response from Nicaraguaspecifies that the records of government spending on advertising and allocation of publicity are of 700,000 Córdobas for the last trimester of 2003 (approximately U.S. $45,841), and that an expenditure of 3,000,000 Córdobas (approximately U.S. $196,400) is expected for 2004.
49. In Panama, there is no specific regulation on the allocation of government advertising. The Regulator of Public Services (Ente Regulador de los Servicios Públicos) is charged with directing public services of radio and television, and with making rules for publicity norms, according to Article 38 of Law 24, which regulates public services of radio and television and dictates other provisions.
50. The National Constitution of Paraguay does not specifically address the issue of the allocation of official publicity. However, its Article 27 states that:
The use of the news media is of public interest; consequently, their operation may not be closed down or suspended (…) Any discriminatory practice in the provision of supplies for the press is prohibited, as is interference with radio frequencies and obstruction, by whatever means, of the free circulation, distribution and sale of newspapers, books, magazines, or other publications with responsible management or authorship.
51. Further, Law 1297 of 1998 of Paraguay prohibits all government institutions, including department administrations and municipalities, from carrying out any kind of paid propaganda in domestic or foreign communications media, except when they are related to publication of notices of biddings, general edicts, promotion of campaigns of rural and sanitary information and education, programs aimed at the promotion of the folklore and the national culture, or in the case of state or joint corporations competing in the market.
52. The official response from Peru to the questionnaire submitted by the Special Rapporteur indicated that the Ministry of Transportation and Communications is in charge of the design and execution of the policies of promotion and development of the radio broadcasting services. However, it is not empowered to regulate the regime of official publicity. The official response also establishes in relation to the existence of records of public spending on publicity that Law No. 27.806 on Transparency and Access to Public Information aims at achieving greater transparency in the administration of Public Finance.
53. In the United States, although there is no constitutional right of the media to receive government advertising revenues, if a publisher can show that a termination of advertising is a content-based penalty, it violates the free speecha dn press clause of the First Amendment of the U.S. Constitution. The relevant laws are:
United States Code
44 U.S.C. § 3702 - Advertisements not to be published without written authority
Advertisements, notices, or proposals for an executive department of the Government, or for a bureau or office connected with it, may not be published in a newspaper except under written authority from the head of the department; and a bill for advertising or publication may not be paid unless there is presented with the bill a copy of the written authority.
44 U.S.C. § 3703 - Rate of payment for advertisements, notices, and proposals
Advertisements, notices, proposals for contracts, and all forms of advertising required by law for the several departments of the Government may be paid for at a price not to exceed the commercial rates charged to private individuals, with the usual discounts. But the heads of the several departments may secure lower terms at special rates when the public interest requires it. The rates shall include the furnishing of lawful evidence, under oath, of publication, to be made and furnished by the printer or publisher making publication.
Federal Acquisitions Regulations, 48 CFR 5
Subpart 5.5- Paid Advertisements
As used in this subpart-
"Advertisement" means any single message prepared for placement in communication media, regardless of the number of placements.
(1) The placement of an advertisement in a newspaper, magazine, trade or professional journal, or any other printed medium; or (2) The broadcasting of an advertisement over radio or television.
(a) Newspapers. Authority to approve the publication of paid advertisements in newspapers is vested in the head of each agency (44 U.S.C. 3702). This approval authority may be delegated (5 U.S.C. 302 (b)). Contracting officers shall obtain written authorization in accordance with policy procedures before advertising in newspapers. (b) Other media. Unless the agency head determines otherwise, advance written authorization is not required to place advertisements in media other than newspapers.
(a) General. (1) Orders for paid advertisements may be placed directly with the media or through an advertising agency. Contracting officers shall give small, small disadvantaged and women-owned small business concerns maximum opportunity to participate in these acquisitions. (2) The contracting officer shall use the SF 1449 for paper solicitations. The SF 1449 shall be used to make awards or place orders unless the award/order is made by using electronic commerce or by using the Governmentwide commercial purchase card for micropurchases. (b) Rates. Advertisements may be paid for at rates not over the commercial rates charged private individuals, with the usual discounts (44 U.S.C. 3703) (…).
54. In Uruguay's main laws concerning freedom in the media, there is no mention of restrictions on government advertising. However, Law 16.320 states in Article 484 that:
State advertising must take into account the inland print media and this shall be obligatory wherever this is aimed specifically at residents of a particular city, region or province in the interior where print media is published and distributed, without prejudice to placement also in a national publication regarded as appropriate.
55. Venezuela has a variety of legislation concerning the media and the practice of journalism, including the Organic Law of Telecommunications of 1940, the Radiocommunications Regulations of 1980, and the Law on the Exercise of Journalism of 1994, to name a few. However, there appear to be no specific laws governing allocation of government publicity. Decree 808 of September 1985 approves the Standards for Coordination and Execution of State Publicity, which assigns the direction and coordination of government information programs to the "Central Information Office" in the President's office. This law provides that the information office should produce programs and information campaigns annually and sets down basic instructions for accounts and contracting.
G. Situations in Member Countries
56. The information provided above reflects that most OAS countries lack specific legislation on the issue of allocation of official publicity. The Special Rapporteur for Freedom of Expression is concerned that this lack of regulation may create the danger of an excessive discretionary power in decision-making bodies which could give way to discriminatory allocations of official publicity.
57. This section is concerned with the reporting of information regarding instances of alleged discrimination in the distribution of official publicity. Although few cases concerning discrimination in allocation of official advertising have made it through the various legal systems of the Americas, several situations have been denounced in which a possible discriminatory practice has taken place. A few of these instances will be mentioned here.
58. The incidences reported illustrate situations in member States in which the allocation of official publicity to media organizations has allegedly been handled in a discriminatory way. This might entail that the allocation of publicity to media sources might have been reduced as a way of punishing the manifestation of criticism towards the government, or that the allocation of publicity might have represented a reward for a positive review.
59. As there are few official resources provided by the governments of the Americasconcerning allocation of state publicity, it was necessary to compile reports of incidences of advertising cuts and alleged discrimination from non-official sources, such as watchdog groups, human rights organizations, and the media outlets themselves.
60. The Office of the Special Rapporteur for Freedom of Expression has received information regarding an alleged instance of discriminatory allocation of official publicity in Argentina, pertaining to the judicial action raised before the Supreme Court of Argentina by Mr. Julio Rajneri, the main shareholder of the publishing firm responsible for the daily newspaper Río Negro in the Province of Neuquén, Argentina. The claimant affirms that an instance of discriminatory allocation of official advertising took place when, after the newspaper had reported on allegations of corruption in the Neuquén provincial government, the Neuquén Lottery notified Río Negro that it would no longer purchase advertising space, as it had done during the previous years.
61. Another reported instance in Argentina refers to the declaration, by the Argentine National Lottery, on October 15, 2001, that it would no longer advertise on the radio program La Danza de la Fortuna. The program reports on the results of official wagers and games of chance. Prior to the advertising cut, journalist González Rivero had criticized Leandro Alciati on the air while commenting on the country's political situation. Alciati is president of the lottery organization and in charge of the allocation of advertising. Alciati denied any connection between González Rivero's comments and the withdrawal of advertising. He stated that the measure was strictly due to a normal reduction in the end-of-year advertising allocation, in addition to an almost seventy-five per cent reduction in the National Lottery's budget.
63. Also in Argentina, on May 26, 2001, the Chubut Province Bank, a corporation with state-owned shares, revealed that a clause in its publicity contracts enabled it to refuse placing advertisements in media outlets that criticized the bank or published information that its authorities deemed negative. Bank Director Jorge Barcia revealed this when expressing his annoyance at radio station LU17 Golfo Nuevo, which had divulged information about alleged irregularities in the bank's administration of funds.
63. In June 2001, El Liberal, a newspaper in the province of Santiago del Estero, Argentina that had published criticism of the Women's Branch of the Justicialista party, claimed it was discriminated against in the granting of governmental advertising in a decision that was linked to political factions associated with governor Carlos Juárez, according to several watchdog media organizations.
64. El Diario, a Bolivian newspaper, reported on January 18, 2002, that the Pando Social Communications Media group denounced the Bolivian government's alleged threats to reporters that they would have to publish what the government wanted or they would be subject to a suspension of state publicity.
65. In Brazil, the daily A Tarde de Bahía was allegedly the object of discrimination in the allocation of official publicity in the state of Bahía. The Rede Bahía media group sued A Tarde journalist Marconi de Souza for libel in connection with an article he wrote on October 25, 2000, which reported a claim by Salvador city officials that 80% of the city government's advertising was placed with that media group. Rede Bahía belongs to the family of Antonio Carlos Magalhães, the state's former governor and Senate speaker. According to A Tarde, in 1999 the state spent about U.S. $33 million in official advertising, almost exclusively directed to Rede Bahía. In Salvador, the state capital, opposition political parties denounced the alleged use of official advertising to reward media outlets belonging to the former governor's family.
66. In Canada, a state where government advertising is not as imperative to independent media survival, instances of discriminatory allocation of advertising tend to be local occurrences. In March 2003, a local public school board allegedly threatened to withhold advertising from newspapers or broadcasters that the board felt had reported its affairs inaccurately.
67. In Colombia, El Espectador, a Bogotá newspaper, was largely financed by the government and its other advertisers through publicity revenue. In 2001, the Mayor of Bogotá allegedly punished the paper with advertising cuts when it was critical of a costly public project. The paper has since been forced to cut back on its editions and circulation.
68. During 2002 and 2003, many media outlets in El Salvador, especially television stations, have complained that official advertising often favors the pro-government media, which encourages journalists' practice of self-censorship.
69. In 2001, TV Doce of El Salvador suffered cuts in government advertising, as well as advertising by important business groups. In May 2001, the station suffered losses of between U.S. $220,000 and $350,000 due to the cuts in advertising, which owners insist occurred because of its critical reports. Due to its financial situation, in March 2003, TV Doce cancelled "Sin Censura" ("Uncensored") the television program that had broadcast most of the criticism directed at the government.
70. In 1998 in Guatemala, then-president Alvaro Arzú Irigoyen deprived many publications of government advertising. Guatemalan journalists complained that if they printed favorable news, advertising revenue would flow in and if they printed bad news, the money would dry up. In January 1998, the government banned all advertising by state agencies in the weekly magazine Crónica and the daily newspaper El Periodico. Both Crónica and El Periodico had been critical of President Arzú’s administration. The editors at Crónica claimed that private sector advertising was also seriously affected as a result of government pressure. This led, in December 1999, to the forced sale of Crónica.
71. In Haiti, there are reports by local human rights groups that radio stations allegedly censor content so as not to lose much-needed advertising funds. These reports have not been confirmed or denied by the government.
72. In Honduras, situations regarding the selective allocation of official publicity have been reported. Allegedly, a number of the major media outlets in this State are owned and operated by politicians, and independent media have repeatedly complained of discrimination in the placement of official government advertising.
73. It has been reported that in June, 2002, the administration of Channel 13 and Radio Reloj of Hondurasprotested that Executive Branch officials of the Government of President Ricardo Maduro "have tried to use publicity as a method of extortion against the media." According to their denunciation, Government officials notified them that they had cut publicity to Channel 13 and Radio Reloj because both media criticized a secret trip taken by President Maduro to Italy.
74. Diario Tiempo of Honduras also allegedly suffered a temporary suspension of state publicity for publishing news of the President's Italytrip. The daily paper suspended the reporter who broke the story, but there still exist publicity restrictions for that paper and the official who signs the publicity contracts affirms that "there are orders from above" that they will not allocate publicity to the newspaper. It is alleged by media sources that those outlets that promote the work of the Government or the Presidential and mayoral figures enjoy the largest publicity contracts.
75. Another reported case was that of the magazine Hablemos Claro, which experienced a cutting of state publicity after it published, on January 14-20, 2003, a "Special Report" stating that the First Lady of the nation had solicited the president to ask for the resignation of the Minister of Culture.
76. Miguel Pastor and Oscar Kilgore, mayors of the major cities of Honduras, Tegucigalpa and San Pedro Sula, respectively, and both competing presidential candidates, had allegedly employed strategies of restricting publicity in media that criticized their efforts at infrastructure work. Pastor is accused of pressuring owners of the communication media with threats of suspending all publicity to them if they criticized a series of taxes that were recently imposed.
77. In Mexico, prior to 1996, most newspapers stayed afloat with revenue they received from government advertisements. Also, most papers published gacetillas (paid government propaganda disguised as news stories). During most of the reign of the long-ruling Partido Revolucionario Institucional (PRI), the press skewed its political coverage in exchange for subsidies, tax incentives, and government advertising. In 1996, the government abandoned, officially at least, its long practice of subsidizing favorable news coverage by spending heavily on ads. Though selective allocation of government advertisement is officially no longer a regular practice, the mostly private media still largely depends on the government for advertising revenue.
78. In 2003, there were reports in the Mexican states of Chiapas and Baja California that the government had withdrawn advertising funds in response to unfavorable coverage. Governor Antonio Echevarría Dominguez, of Nayarit state, western Mexico, was accused of censoring the Radio Korita program "Consensos," which has been critical of his administration, through the discriminatory use of government advertising. On January 31, 2003, the radio station's signal was cut just as the "Consensos" program was scheduled to go on the air. Espinoza Vargas, the manager of Radio Korita, stated that he was told that cutting the signal was done under "the governor's orders" and that this was "a condition for the renewal of a year's worth of advertising." Espinoza Vargas alleges that Nayarit state officials have in the past attempted to have his program taken off the air. Prior to the signal cut, Espinoza Vargas had reported on fraud in the housing authorities' administration of public markets.
79. The government of the Mexican state of Baja California was accused of withholding official advertising in La Crónica newspaper because the paper had published several complaints against irregularities in public administration that involved Governor Eugenio Elordoy Walther. La Crónica's owners alleged that because of their reports on the erratic purchase of vehicles, nepotism within the Government, and salary increases for employees in recent months, the State cancelled all government advertising in the newspaper and has made access to public information difficult for journalists.
80. During visits to the Mexican states of Chihuahua and Guerrero, the Special Rapporteur corroborated that official advertising was being placed in a discretional way, without clear parameters and with certain signs of arbitrariness. The Rapporteur noted this situation with regard to the newspapers El Sur of Guerrero and El Norte of Juárez, both of which are openly critical of the government. The Special Rapporteur urged all state agencies to modify these practices and to establish clear, fair, and objective criteria for determining how to distribute official advertising. Additionally, the Special Rapporteur declared that in no case may official advertising be used for the intention of harming or favoring one means of communication over another.
81. In Uruguay, opposition representatives in Congress denounced irregularities in the allocation of official advertising that favored print and broadcast media that positively covered the governing Colorado party. ANTEL, the state-owned telecommunications monopoly and largest official advertiser, was the main target of the denunciations.
82. Journalists in Uruguay have consistently objected to the government’s granting the directors of state agencies and enterprises complete discretion in their use of advertising budgets. They have also called for transparency in the distribution of state advertising, and have proposed the creation of an online database with detailed information on state advertising spending.
83. After four years of a penal tribunal investigation, there have been two indictments of government officials in Uruguay for alleged illegal management of official publicity, using discriminatory criteria more than minimal technical criteria, to reward or punish media outlets. 
84. In Venezuela, human rights monitors have alleged that throughout 2002 the State showed favoritism with government advertising revenues.
85. Venezuela´s daily La Opinión in the state of San Carlos had all state advertising withdrawn from it in May 2002. The managing editor accused the state governor, Johnny Yánes Rangel, of attempting to bankrupt the paper.
87. The multitude of alleged cases is evidence of the widespread nature of alleged indirect violations of freedom of expression. These possible indirect violations are promoted by the lack of legal regulations that provide adequate remedies for the discriminatory allocation of official publicity, as these legal voids give way to excessive discretionary power on behalf of the decision-making authorities.
88. The Special Rapporteur for Freedom of Expression urges and recommends that the OAS member States adopt laws which prevent discriminatory practices in the allocation of official publicity, as well as mechanisms for putting them into effect.
89. A legal framework establishing clear guidelines for official publicity distribution is imperative for continuing fair management of advertising revenue. In order to ensure freedom of expression in the future, states should discard insufficiently precise laws and avoid granting unacceptable discretionary powers to officials. The establishment of a mechanism for oversight of decisions would be instrumental in granting legitimacy to discretionary allocations made by officials.
90. In considering the adoption of such legislation, the States must keep in mind that transparency is vitally needed. The criteria used by government decision-makers to distribute publicity must be made public. The actual allocation of advertising and sum totals of publicity spending should also be publicized, to insure fairness and respect for freedom of expression.
91. As media sources have the courage to be vocal about discrimination in the allocation of official publicity, and as human rights organizations and domestic opposition political forces continue to bring attention to instances and regimes of discrimination, the local and international attention called to these acts will increase.
92. The Office of the Special Rapporteur for Freedom of Expression will continue to monitor the development of these practices.
 This chapter was made possible through the assistance of Rachel Jensen, a second-year law student at Georgetown University, who provided the research and the preliminary drafting of this report, and of Andrea de la Fuente, a recent law graduate from Universidad Torcuato Di Tella, Argentina, who further assisted in the drafting of this report. Both were interns at the Office of the Special Rapporteur for Freedom of Expression during 2003. The Office thanks them for their contributions.
 United Kingdom Cabinet Office, Government Printing and Advertising, available at http://www.cabinet-office.gov.uk/central/1999/workgis/annex_a.htm.
 Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 Tex. L. Rev. 863, 866 (1979).
 World Bank Group, World Development Report 2002, 185-186.
 Money Talks, Martin H. Redish, NYU Press (New York 2001), 205.
 Id. at 207.
 Id. at 198.
 American Convention on Human Rights, in BASIC DOCUMENTS PERTAINING TO HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM, OEA/SER.L/V/I.4 rev. 8 (May 22, 2001), 9.
 Declaration of Principles on Freedom of Expression, Principle 13.
 Declaration of Chapultepec, adopted by the Hemisphere Conference on Free Speech, Mexico City, March 11, 1994, Principle 7.
 International Mechanisms for Promoting Freedom of Expression Joint Declaration, November 2001. See Annex to the Report of the Office of the Special Rapporteur for Freedom of Expression 2001, OEA/Ser.L/II.114, Doc. 5 rev. 1, April 16, 2002.
 Eur. Ct. H.R., Case of Vgt Verein gegen Tierfabriken v. Switzerland, June 28, 2001, Application
No. 24699/94 R.
 Article 10: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
 Case of Vgt Verein gegen Tierfabriken v. Switzerland, supra note 15, para. 73.
 Id. para. 74.
 See supra note 16.
 Human Rights Practice R.O. June 2000, P. 10.1031
 Eur. Ct. H.R., Case of Autronic A.G. v. Switzerland, May 22, 1990, Application No. 12726/87.
 Id. at 485.
 Eur. Ct. H. R., Case of Herczegfalvy v. Austria, September 24, 1992, Application No. 10533/83, paras. 91-94.
 Human Rights Practice R.O. June 2000, P. 10.1031.
 The Special Rapporteur receives information from independent organizations working to defend and protect human rights and freedom of expression and from directly concerned independent journalists, as well as information requested by the Office of the Special Rapporteur.
 To the date of the approval of this report by the Inter-American Commission on Human Rights for its inclusion in the IACHR’s Annual Report, only the States of Argentina, Colombia, Costa Rica, Mexico, Nicaragua, Peru, and the United States, out of the total of the member States of the OAS, have submitted the information requested by the Special Rapporteur. The Republic of Trinidad and Tobago replied to the letter sent by the Special Rapporteur, and expressed that the State would provide the Office with the requested information at the earliest opportunity. The State of Bahamas requested further information on the request of the Special Rapporteur. The Special Rapporteur greatly appreciates the efforts of these States in gathering the requested information, and encourages all member States of the OAS to collaborate in the preparation of future studies by this Office in order to better take advantage of the conclusions derived from them.
 Law 1632, Law on Telecommunications, Article 43, Addendum, from http://www.sittel.gov.bo/mlrldr.htm. Article 43 of the Telecommunications Law elevates a number of articles of Supreme Decree No. 09740 (Decreto Supremo No. 09740) to the status of law, including the quoted passage from Article 67 of that decree.
 International Press Institute, 2002 World Press Freedom Review, available at http://www.freemedia.at/wpfr/Americas/bolivia.htm.
 Broadcasting Act, 1991.
 Official Notices Publication Act, R.S.O. 1990, c. O.3, s. 2.
 Inter-American Press Association, Press Laws of Colombia, available at http://www.sipiapa.com/projects/laws-col3.cfm.
 Inter-American Press Association, Press Law Database, available at http://www.sipiapa.com/projects/laws-cub.cfm.
 Instituto Dominicano de las Telecomunicaciones, Ley General de las Telecomunicaciones No. 153-98, available at http://www.indotel.org.do/site/marco_legal/ley153-98.htm.
 Inter-American Press Association, Press Law Database, available at http://www.sipiapa.com/projects/laws-ecu20.cfm.
 Haitian Constitution, Title III, Chapter II, Section C: Freedom of Expression (1987).
 Jamaican Broadcasting Commission, http://www.broadcastingcommission.org/broadcastinglaws/index.htm.
 República de Panamá, Ente Regulador de los Servicios Públicos, Ley No. 24, 30 de Junio de 1999, available at http://www.ersp.gob.pa/leyes_decretos/Ley24.asp.
 National Constitution of Paraguay, Article 27.
 Honorable Cámara de Diputados de Paraguay, http://www.camdip.gov.py.
 Marc A. Franklin and David A. Anderson, Mass Media Law, Foundation Press, 1995, 164.
 Poder Legislativo, República Oriental del Uruguay: Ley No. 16.320, Rendición de Cuentas y Balance de Ejecución Presupuestal Ejercicio, available at http://www.parlamento.gub.uy/Leyes/Ley16320.htm.
 Periodistas Frente a la Corrupción (PFC), Suspenden Publicidad oficial al diario Rio Negro, ALERTA-ARGENTINA, http:portal-pfc.org/perseguidos/2003/002.html, 9 de enero de 2003; Rio Negro (Argentina), La SIP ya prepara un documento de adhesion a la presentacion. El organismo continental de prensa trabaja con sus abogados. También la asociacion periodistas, www.rionegro.com.ar, 24 de enero de 2003.
 Asociación para la Defensa del Periodismo Independiente(PERIODISTAS), Advertising withdrawn from radio programme, 12 November 2001, available at http://www.ifex.org/en/content/view/full/14991.
 Asociación para la Defensa del Periodismo Independiente(PERIODISTAS), Discriminatory administration of state publicity, May 31, 2001, available at http://www.asociacionperiodistas.org.
 Asociación para la Defensa del Periodismo Independiente (PERIODISTAS), Advertising withdrawn from radio programme, November 12, 2001, available at http://www.ifex.org/en/content/view/full/14991.
 El Diario (Bolivia), Medios pandinos denuncian atentados y acuden a la SIP, January 18, 2002, available at http://www.portal-pfc.org/libexp/docs/2002/010.html.
 Reporters Without Borders (RSF), RSF calls for an inquiry into the allocation of public sector advertising in Bahia, January 31, 2001, available at http://ifex.org/en/content/view/full/12569.
 Claudio Abramo Weber, Programme in Comparative Media Law & Policy at Oxford University, Brazilian Media, available at http://pcmlp.socleg.ox.ac.uk/mas/reports/abramo.shtml.
 Freedom House, Freedom of the Press 2003, A Global Survey of Media Independence, Edited by Karin Deutsch Karlekar, available at http://www.freedomhouse.org/pfs2003/pfs2003.pdf.
Javier Dario Restrepo, El Espectador: Agonía de un periódico, December 2001, available at http://portal-pfc.org/recursos/biblio_periodismo_archivos/el_espectador_co.htm.
 Journalists Against Corruption (PFC), Piden investigar a presidente Flores por injerencia en medios, May 12, 2003, available at http://www.ifex.org/en/content/view/full/49593.
 Marylene Smeets, Speaking Out, Speaking Out: Postwar Journalism in Guatemala and El Salvador, available at http://www.cpj.org/attacks99/americas99/americasSP.html.
 Article XIX, Submission on Guatemala's Second Periodic Report to the UN Human Rights Committee, available at http://www.article19.org,.
 Freedom House, Freedom of the Press 2003, A Global Survey of Media Independence, Edited by Karin Deutsch Karlekar, available at http://www.freedomhouse.org/pfs2003/pfs2003.pdf.
 Freedom House, Freedom of the Press 2003, A Global Survey of Media Independence, Edited by Karin Deutsch Karlekar, available at http://www.freedomhouse.org/pfs2003/pfs2003.pdf.
 Comité para la Libertad de Expresión (C-Libre), Situación de la Libertad de Expresión en Honduras, available at http://probidad.org/honduras/libexp/2003/008.html, "Situación de la Libertad de Expresión en Honduras".
 Marylene Smeets, Overview: The Americas, available at http://www.cpj.org/attacks00/pages_att00 /acrobat_ att00.html/ Americas_countries.pdf".
 Reporters without Borders, Radio Programme Discriminated Against in Allocation of Government Advertising, 5 Februrary 2003, available at http://rsf.fr/article.php3?id_article=4879&var_recherche=%22advertising+revenue%22.
 Inter-American Press Association, October 23, 2002.
 See Office of the Special Rapporteur for Freedom of Expression, Press Release 89/03, available at http://www.cidh.org/Relatoria/English/PressRel03/PRelease8903.htm.
 Periodistas Frente a la Corrupción, Recopilaciones sobre Libertad de Expresión y de prensa en America Latina, March 27, 2003, available at http://www.portal-pfc.org/libexp/recopilaciones/2003/0327.html.
 Freedom House, Freedom of the Press 2003, A Global Survey of Media Independence, Edited by Karin Deutsch Karlekar, available at http://www.freedomhouse.org/pfs2003/pfs2003.pdf.