“The events that took place in Melinka provided the Inter-American Commission with an opportunity to move forward in considerations on issues such as state distribution of public goods and resources, indirect censorship, and equality and non-discrimination in the treatment by the State of community radios.”
By CEJIL * / November 2015.
During its last regular session1, the Inter-American Commission on Human Rights (IACHR) issued its verdict regarding the case of Miguel Ángel Millar Silva and Others, also known as the case of Radio Estrella del Mar in Melinka. The report of the Commission sets an important precedent for the region, as it is the first time that the protection instruments of the Inter-American system have made such a pronouncement (within the framework of an individual case) on the critical role of community radios and the relationship between these organizations, the right to freedom of expression and the existence of a democratic society.
Radio Estrella del Mar in Melinka, which is located in a small port town in the Las Guaitecas archipelago, in the southern region of Chile, had been used as a means of communication and information by neighborhood organizations and trade unions. Towards the end of 1999, the Radio was cut off from the electric power supply, which continued to be provided to other media organizations in the municipality. As a result of this decision, its transmission time was drastically reduced, limited to the time period between 5pm. and midnight. The radio station was thus reduced to a position of inequality compared to other like organizations, which were able to continue their operations throughout the whole day.
In its report, the IACHR acknowledged that the decision to submit the Estrella del Mar community radio station to a different electric power supply to that received by the other media organizations on the island, violated the right to freedom of expression and the right to equality of the station’s workers and listeners, rights that are specifically protected by the American Convention on Human Rights.
In relation to the right to freedom of expression, the Commission reiterated its standards on the dual dimension -individual and social- of this right2, and highlighted its condition as an essential element for the existence of democratic societies, focusing on the role of the media to hold up this right in the following terms: “(…) in the same way that trade unions are instruments for the exercise of the right of association of workers, and political parties are vehicles for the exercise of the political rights of citizens, the media represents mechanisms that serve for the exercise of the fundamental right to freedom of expression of those who use such media as a means of disseminating their ideas or information.”3
The events that took place in Melinka provided the Inter-American Commission with an opportunity to move forward in considerations on issues such as state distribution of public goods and resources, indirect censorship, and equality and non-discrimination in the treatment by the State of community radios.
In that respect, the organization made reference to the functioning of the media and public resources, stating that: “the control and distribution of public goods and resources that impact or may impact their functioning, is a decision that has a clear effect on the right to freedom of expression in its dual dimension: the right of people who use such media to express themselves freely, and the right of all society to receive a diverse range of ideas and opinions (…).”4 In the case of Radio Estrella del Mar in Melinka, the State, when it decides to supply electric power at different times, is deciding what voice the public can listen to and is also defining the sources of information that each person will have available in order to make informed decisions that will impact their life plans.
The Commission then focused on the way that States must implement the distribution of public goods, stating that for the allocation of such resources, the States must meet formal and substantial obligations. In the case of the first, this supposes the existence of criteria and procedures that are clear, objective and transparent, while in that of the second, it is equated with the principles of equality and non-discrimination and the prohibition of arbitrariness.”5
The Commission also placed clear limits on State authority, indicating that: “The abuse use of State powers in this area in order to place pressure on and punish, or reward and provide privileges to social communicators and the media according to their editorial directives, constitutes an indirect restriction of freedom of expression that is prohibited by Article 13.3 of the American Convention, and is also a violation of the principle of equality, as expressed in Article 24 of the same treaty.”
According to the decision of the IACHR, States are required to provide minimum standards for the respect of principles such as public interest, transparency, accountability and non-discrimination, and the distribution of a limited public service between different media must adhere to predetermined, objective and reasonable criteria, and the decision must be duly and sufficiently motivated, and should be promoted through transparent and accessible procedures.6
Therefore, we believe that the criteria developed in this case by the Inter-American Commission on Human Rights, do not only have implications for the aforementioned case and for Chile, but also with respect to other contexts and situations in which the exercise of freedom of expression may be affected by a State’s abusive use of its powers to distribute public goods. The Commission has clearly established that it cannot be permitted that hidden behind an apparent legitimate exercise of State powers is a discriminatory or indirect censorship so as to punish or place pressure on a particular media outlet due to its dissemination of critical opinions, and that the upholding of such standards will undoubtedly contribute to the strengthening of democracies in our region.
* The Center for Justice and International Law (CEJIL) is co petitioner in the case, along with listeners of the radio station in Melinka and AMARC.
1We refer to the 156th Regular Period of Sessions held in its Washington DC headquarters, from 17 to 28 of October 2015.
2IACHR. Report no. 77/15. Case 12.799. Miguel Ángel Millar Silva and others (Radio Estrella de mar of Melinka). 26 October 2015, paragraph 41
3IACHR. Report no. 77/15. Case 12.799. Miguel Ángel Millar Silva and others (Radio Estrella de mar of Melinka). 26 October 2015, paragraph 43.
4IACHR. Report no. 77/15. Case 12.799. Miguel Ángel Millar Silva and others (Radio Estrella de mar of Melinka). 26 October 2015, paragraph52.
5IACHR. Report no. 77/15. Case 12.799. Miguel Ángel Millar Silva and others (Radio Estrella de mar of Melinka). 26 October 2015, paragraph 51.
6IACHR. Report no. 77/15. Case 12.799. Miguel Ángel Millar Silva and others (Radio Estrella de mar of Melinka). 26 October 2015, paragraph76.