7 de mayo 2024
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The Sandinista government seeks to control content disseminated by audiovisual creators and other information media on the Internet in Nicaragua, through the General Law of Convergent Telecommunications bill. This legislation will replace the General Law of Telecommunications and Postal Services, in force since 1995.
Article 5, paragraph 10 of the bill establishes the definition of content as "any information generated under any mode or form of expression, which may be distributed by any electronic means."
In the opinion of a telecommunications lawyer, the concept of content "should not have been included" in the bill.
"A telecommunications law should not regulate content, because telecommunications is concerned with technological development, not the content that runs on that technical structure. Content is irrelevant for a regulator," the jurist explained to CONFIDENCIAL.
Application required to receive a license
The bill, sent by Daniel Ortega's office to the National Assembly on March 5, also establishes that TELCOR will require local TV stations and audiovisual producers who create or provide programs and content over the Internet to apply for a license to operate in Nicaragua.
The telecommunications specialist warned that as this law is currently proposed, it will be used as "a political tool to remove from the game all those who do not agree" with the regime.
The bill was sent to the Infrastructure and Public Services Committee of the National Assembly for its consultation and approval on March 12.
Ortega argued in the explanatory memorandum that the previous law "no longer fits the current context, given its very limited capacity to regulate the new and complex scenarios that go beyond its objective and scope."
The National Assembly is controlled by the dictatorship of Ortega and his wife Vice President Rosario Murillo, so it is expected that the initiative will be approved as is or with only slight modifications.
According to the specialist, the current Telecommunications Law "is outdated" and a new regulation is necessary. However, "they are using a necessary legal provision for a different purpose than the one the law should have."
Content should not be regulated
The bill does not provide details as to what type of content will be regulated. The telecommunications expert considered that this could be defined later in regulations that would be issued by TELCOR.
"You can, through laws or regulations, establish parameters, such as the issue that existed at some point when television was popular, regarding advertisements with sexual content, which were regulated to be broadcast at a certain time. But you can't prohibit them from being broadcasted," the expert explained.
Spain, which has one of the most recent telecommunications laws, passed in 2022, excluded audiovisual communication service providers from the object and scope of application of the law.
Digital media blockade
In principle, the new law will regulate local TV stations that have emerged in the country's provinces and towns, but also other kinds audiovisual communication service providers.
These include: broadcast television, radio and "any other audiovisual broadcasting service using any technology or means of transmission, including the Internet."
"The trend with this tool is that the regulatory body or the enforcement authority can tell a media outlet such as "100% Noticias" –which has had its license canceled, its equipment seized and all sorts of other things but which still reaches the country through the Internet– that it needs a license to be able to disseminated in the country," he said.
These restrictions could also be applied to other independent media operating from exile, including international networks which are viewed through the Internet. This has happened in Venezuela, where the Nicolás Maduro regime imposed a digital blockade on some 48 media outlets and 78 news sites, without having any legal basis for doing so.
Legal insecurity
The Nicaraguan bill presents loopholes and ambiguities that can be used to the benefit of the regime, said the telecommunications legal expert.
Article 5 defines audiovisual communications services in two different ways. On the one hand it talks about them as content providers; that is, the media that broadcasts the content. But it also defines them as creators who produce content, leaving it ambiguous as to who will be regulated by this law.
"Providers of audiovisual communications services: natural or legal entity that generates or provides programs and content to the general public through different media or in the form of a virtual provider," reads numeral 38 of Article 5.
Meanwhile, section 47 stipulates that "audiovisual communications services are the different modalities of distribution and broadcasting of programs and multimedia content to the general public."
"When a law, like what is proposed in this bill, has concepts that allow the government official to use one or the other [definition] depending on the circumstances or the entity to which it is to be applied, there is no legal security, there is no equality. And this leads to arbitrariness on the part of the official," the jurist said.
Imposition of recurring charges to maintain license
With the new law, audiovisual communications service providers must apply for a license from TELCOR. The license is valid for ten years and those who obtain it will have to pay TELCOR a still unknown amount for the "monthly recurring fee for use." The cost will be defined in the regulations to be issued by TELCOR.
In the previous law, TELCOR was not empowered to issue regulations beyond what had already been established. With the new law, this regulatory body will be able to add new regulations after the approval of the new law, without the need for these to pass through the National Assembly.
The kinds of regulations that TELCOR will be able to include range from the cost of licenses to possible content regulations, which are not detailed in the bill.
The new law will repeal Law 670 regarding extensions of licenses for companies, individuals or legal entities that operate radio, television and telecable, which since 2008 has extended the operating licenses of media and cable companies.
This article was published in Spanish in Confidencial and translated by our staff. To get the most relevant news from our English coverage delivered straight to your inbox, subscribe to The Dispatch.
