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Inter-American Court: State Regulations Designed to Protect Pluralism Are “Legitimate and Urgent”

*Gustavo Gómez Germano

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The ruling of the Inter-American Court of Human Rights in the case of Marcel Granier et al (RCTV) vs Venezuela1 can be called historic. And I am not referring to the decision regarding the case itself (with which I agree2 and disagree3). That will be the subject of news pieces and other analyses. I refer instead to the case law that sets the stage for the key issues behind the court’s ruling.

This legal agency, which represents the Inter-American System of Human Rights, offers extensive reflections on the reach of the concessions of broadcasting frequencies4 held by private entities and the procedures for granting, revoking, and renewing licenses for offering radio and TV5 services and the right to demand automatic renewal of concessions6.

But it also developed an interpretation in light of the American Convention on Human Rights or Pact of San José de Costa Rica regarding issues related to the importance of pluralism in the media in a society as a basic condition for the existence of freedom of expression and the role of the State as its guarantor.

The Court states that commercial media concentration exercises a form of censorship of freedom of expression in that “it also can be affected without the direct intervention of the State. That scenario could be configured, for example, when the existence of monopolies or oligopolies in media ownership creates ‘media focused on blocking communication and the circulation of ideas and opinions.’”

Social media must “be open to everyone without any discrimination” because the goal is for “there to be no individuals or groups that are excluded a priori.” This is due to the fact that “[social media] play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society.” The Court found that it is not only a matter of expression by the social media but that “it is indispensable for them to take up the most diverse forms of information and opinions.”

In this sense, the Court “notes that the citizens of a country have the right to access information and ideas from diverse positions. This must be guaranteed at different levels, such as the types of media, the sources, and the content.” This situation takes on special relevance in the area of radio and TV broadcasting, the Court says, “given that the broadcasting space is limited, with a set number of frequencies, (and) this limits the number of media outlets that can access them. As such, it is necessary to ensure that that number of media channels represents a diversity of visions or news or opinion positions.”

The Court notes that diversity is not the same as quantity, and that a plural media system cannot be confused with the existence of many media outlets. “Pluralism of ideas in the media cannot be measured by the number of media outlets. It depends on whether the ideas and information transmitted are truly diverse and addressed from different positions without the existence of a single vision or approach.”

As such, the Court states, “one can explain the protection of human rights of those who take on the power of the media, which must responsibly exercise the social function that they develop, and the effort to ensure the structural conditions that allow for the equitable expression of ideas” while “media or news plurality constitutes an effective guarantee of freedom of expression.”

The State can act to protect the right of the population in that the freedom of expression of the owners of the media “is not an absolute right and may be subject to restrictions, particularly when it interferes with other rights guaranteed by the Convention,” the Inter-American Court states.

The sentence upholds the principle of “minimization of restrictions on information” and non-intervention of the government in the editorial lines of the media based on “the importance of freedom of expression in a democratic society and the responsibility that it gives the social media and those who professionally carry out this work.”

However, the Court also ruled that the State has the duty to actively regulate the media in order to avoid concentration and guarantee greater diversity of the media because “the State has a duty to protect and guarantee this by virtue of Article 1.1 of the Convention.” The Court “reiterates that Article 13.3 of the Convention imposes guarantee duties on the State, even in the sphere of relationships among private entities, because it does not only cover indirect governmental restrictions, but also private controls that produce the same result.”

“Governments are internationally required to take the steps necessary to ‘make effective’ the rights and principles set out in the Convention as per Article 2 of that inter-American instrument,” the ruling states, seeking “to balance, to the greatest extent possible, the participation of the different currents in public debate, promoting news pluralism.”

In order to meet that obligation, the Court continues, governments “must establish laws and public policies that guarantee pluralism of the media or news in the various areas of communications, such as print media, radio, and TV,” without distinctions based on platforms or technological inputs. In addition, they must “keep in mind the impact of those decisions in broadcasting concession or licensing granting or renewal processes on diversity and pluralism.”

The “democratization of the use of the broadcasting medium” in order to guarantee and protect diversity and pluralism of information and ideas is, for the Inter-American Court of Human Rights justices, “not only a legitimate end, but also an urgent one.”

*Executive Director of OBSERVACOM

1. The complete ruling is posted online: http://www.corteidh.or.cr/docs/casos/articulos/seriec_293_esp.pdf.

2. For the court, “the facts of this case represented a deviation of power because a power granted to the State was used to align the media channel with the government in terms of its editorial line.”

3. I agree with nearly everything in the ruling with the exception of the decision to return the frequency to RCTV, if only as a reparatory measure and only until a new open call can be held to reassign it.

4. In this regard “the Court observes that the broadcasting spectrum is a public good that is the domain of the State and, as such, its ownership cannot be claimed by private parties. It is therefore not possible to state that RCTV, and in particular its shareholders, would have acquired any type of right or ownership over the spectrum.”

5. This must be “an open, independent and transparent process for the granting of the frequency of the broadcasting spectrum,” in which “no discriminatory criteria are applied that would condition the granting of the concession, and it must be oriented towards effectively strengthening democratic pluralism and respect for judicial guarantees.”

6 The ruling states that “regarding whether there existed in international law a duty to renew broadcasting licenses, the Court concludes that this obligation is not contemplated in international law” and that RCTV “did not have an acquired right to the automatic renewal of its concession.”