Oportunities and lacks in Media regulation
The Peruvian state recognizes and protects freedom of information, expression and opinion and the right to do so, through diverse media. At the same time, the Constitution recognizes and protects ethnic and cultural plurality and defines, as illegal and prohibited practices against freedom of expression and information, media exclusivity, monopoly and concerning.
The text of the Constitution referring to exclusivity, monopoly and cornering is developed in the Radio and Television Law (2004), in which an ex ante control is established that limits the number of radio and television licenses that an operator can hold by band and locality.
However, there is no general anti-monopoly law or specific regulation which covers the print and other media. Nor is cross-ownership prohibited. Nor are owners of radio and television obliged, beyond the normal laws applying to business associations, to make public their market share or their advertising income, nor their shareholder composition. The definition of cornering in the case of radio and television is not based on market share (audience and/or publicity) of the operating companies.
We therefore consider that that in the case of implementation of television policies and regulations, there is room for political discretion by the responsible authority, the Ministry of Transport and Communications, given that the designation of ministers and high-level officials depend on the Executive, which does not confer political autonomy on the regulator. The Radio and Television Consultative Council exists, but its opinions are not binding.
We find that the approach with underlies the legal framework and policy implementation in the media sector is one of non-intervention in issues of censorship, but is not one of promotion of the exercise of rights by people or collectives which do not have the resources or the ability to own and manage media such as radio and television, for example associations with promote education and community media.
Since the conception and implementation of the Radio and Television Law in 2005, decisions have been taken by the Congress and the Executive which have not favored radio and television pluralism and diversity. For example, prior to the current law, the limit for radio and television licenses was by band and locality (Telecommunications Law 1993). The preferential treatment for intended under the Radio and Television Law for the educational and community stations in particular, has not been vigorously applied and promoted given that price is the most important criterion in license tenders. This has marginalized community media in terms of their location and signal strength. No mechanisms have been established to assist indigenous communities, campesinos and other collectives in vulnerable situations. Instead of widening media diversity and plurality, the implementation of digital television has strengthened the Lima business groups at national level.
Two opportunities for state action are not well exploited to increase media diversity and plurality. The Peru National Institute of Radio and Television (IRTP) has no editorial autonomy from government and has made little effort to decentralize its production. The state´s expenditure on institutional publicity and campaigns in the public interest follows market patterns in that it privileges audience levels and/or readership to determine but not incorporate, in practice, decentralization and equity criteria in advertising investment.
For further information, review the paper "Estudio del marco legal sobre la concentración de medios de comunicación en el Perú" by Jorge Acevedo.
OSIPTEL and the regulation of Network Neutrality
In a digital age where consumption of news through the Internet is massive, network neutrality plays a key role in ensuring the plurality of digital media outlets and the rights of freedom of information and of speech. That consumers currently receive all kinds of information free of controls or censorship and can access any website or content on the Internet represents the most contemporary and daily demonstration of these rights in action.
Those who defend network neutrality believe that this principle is the best guarantee that a long distance telephony company will, despite countervailing financial or corporate incentives, refrain from blocking or downgrading a competitor's service or from restricting certain content; for example, Telefonica—Peru's largest communications company—choosing to block Skype, Whatsapp, or similar applications, or to limit access to content on a digital newspaper website that reveals information it finds uncomfortable.
In the absence of clear network neutrality rules, a telecommunication company could consider that such behaviors—or others that affect freedom of information—constitute legitimate business practice. To protect democracy and preclude this kind of scenario, in December 2016 the Peruvian state—through the Supervisory Agency for Private Investment in Telecommunications (OSIPTEL)—approved the Network Neutrality Regulation.
This regulation—which develops the provisions of the 2012 Broadband Law and its regulations —establishes the principles of the law, the permitted and prohibited activities, and the regime of infringements and fines in cases of the law's contravention. These fines can reach as high as US$450 thousand (PEN1.4 million). The regulation governs the operations of telecommunications providers so as to avoid any breach of the net neutrality principle. Although the law exists, implementation of the regulations is far from perfect.
For example, the regulations establish express exemptions to the ban on blocking and the ban on targeted degradation beyond the reasonable and allowed measures of network management that are normally permitted. It authorizes the "filtering" and blocking of services and / or applications "at the request of the subscriber" and "in compliance with contractual obligations with the state or because of a specific regulation", including court orders. Although these exceptions are yet to be interpreted or implemented—but could be in accordance with the principle of network neutrality—they open the door to other possible undue state restrictions.
Although the Broadband Law principle prohibits operators from discriminating arbitrarily, the 2016 Network Neutrality Regulation does not include any specific measure, regulation, or prohibition on zero rating, which is the commercial practice of offering certain Internet content free of charge or at low cost. The regulations only consider commercial differentiation to be arbitrary when the action of the operating company restricts access; prioritizes or limits quality or functionality; or requires an additional fee for certain content or services. They also state that if a commercial offer contains non-arbitrary commercial treatment (such as the zero rating), the user has the power at any time to choose whether to accept this benefit without paying any additional fee.
Whilst agreements between Internet providers and technology companies currently aim to benefit the user, in the medium term they could come favor to certain media outlets and generate financial disincentives for citizens to access independent media outlets or media that have not negotiated special rates with the operators. Such a scenario would affect the right of every citizen to obtain unrestricted information.
During debate over implementation of the current regulation, OSIPTEL itself acknowledged that measures which affect network neutrality, in the form of differentiated commercial offers (promotional and / or established) paid as advertising by the telecommunications companies and distributed through the media, may contravene this principle.
At the time the regulator claimed there was a potential gap in the zero rating regulation: "These measures, at the choice of the operator (Telefónica, Claro, Entel Bitel), lead to a differentiated treatment (positive discrimination) for certain resources that the Internet offers (traffic, protocol, service, or application) and are likely to alter or limit the users' free choice [being] contrary to network neutrality."
Despite this, OSIPTEL's ability to safeguard network neutrality is limited. According to its official information, two audit findings against telecommunication companies for violating the principle exist, but no penalties have been imposed.
In the framework of OSIPTEL's transparency and audit activity, operators must publish their network management actions on their web portals in accordance with the Network Neutrality Regulation. However, the companies either disseminate outdated information, or do not comply with the requirements.
This practice has not been punished by the regulatory body despite it carrying fines of up to US$70,000 (PEN 210,000). Whilst any user could report a network management practice that falls outside OSIPTEL's regulations, there are as yet no reported cases as the framework is new and the requirements complex.
Despite Peru's regulations being in force now for two years, it is clear that there are still many gaps that OSIPTEL needs to close and steps it needs to take.
For more information, see Neutralidad de Red y Libertad de Expresión en Perú (Network Neutrality and Freedom of Speech in Peru) by Miguel Morachimo, Director of Hiperderecho.