The IACHR upheld standards of plurality and diversity in broadcasting.
Jesús Urbina Serjant*
Some media policy experts have questioned whether the Inter-American Court of Human Rights ruling in favor of Marcel Granier et al in the case against the Venezuelan government sets the stage for the perpetuation of ownership of broadcasting frequencies. That suspicion may stem from the fact that the June 22 ruling orders the restoration of the concession of Channel 2 to the operators of Radio Caracas Televisión (RCTV).
The first readings of the ruling led to optimism among the plaintiffs and those who believe that the interruption of RCTV transmissions is one of the greatest attacks on freedom of expression committed in Venezuela. In neutral terrain of opinion regarding the case and among critics of private TV services, the sentence was initially received with suspicion because the focus was placed on the decision to return to the status that was enjoyed prior to the legal expiration of the license on 27 May 2007.
However, no one seems to doubt that the ruling ratifies the case law of the Court in the area of freedom of expression and upholds the doctrine sustained by the Inter-American Commission of Human Rights and the Office of the Special Rapporteur for Freedom of Expression on diversity and plurality of the media.
What the Court’s ruling certainly protects is that fundamental right –which is recognized in Article 13 of the American Convention on Human Rights- in response to indirect and undue restrictions by the State on the administration of the broadcasting frequencies, specifically in the license transfer process. The ruling states that the decision not to renew the RCTV concession was adopted with discrimination, violating Article 1 of the American Convention on Human Rights and without the due process set out in Article 8 of the same. In addition, it was found that in regard to the plaintiffs’ request that the Venezuelan justice system set aside the government’s decision and issue a protective measure that would cover the diverse and collective interests of the board members and employees, the State violated the reasonable period requirement and the right to be heard before jurisdictional agencies, guarantees that are also set out in Article 8 of the Convention.
In order to understand the real reaches of this ruling, it is important to clarify that the Court did not establish the right to hold a broadcasting license in perpetuity, as some critics of the ruling have assumed. In fact, what is strictly defined as an element of reparations for the violation of rights in this case is only the temporary restoration of the channel’s concession and opening of a definitive process for assigning the frequency. In addition, the Court states that the property of RCTV involved in the judicial order –signal repetition equipment seized through protective orders issued by the Supreme Court- must be returned to the legitimate owners, the representatives in the case.
Paragraph 380 of the ruling, in which the criterion of the Court to rule on the reestablishment of the license is stated, indicates that the reparation measure “cannot imply the recognition of ownership of the concession by RCTV.” The State violated the plaintiffs’ rights and ignored the judicial guarantees necessary for effective freedom of expression –the right to be heard and due process- in a title renewal process that did not follow the criteria established in the national legislation:
…the law establishes a due process for title transfer and the renewal of the concession and the State deliberately failed to follow the same.
The Court found that this malicious procedure constituted a direct violation of the American Convention on Human Rights but it in no way mandates the definitive return of the frequency for ad infinitum use by RCTV nor the direct and automatic renewal of the concession, as was erroneously reported by some media outlets in Venezuela.
In the arguments included in the ruling, the Court conditions the criterion of the right of preference demanded by the plaintiffs of the Administration and the Venezuelan justice system, limiting it to a mere “special consideration or certain advantage that may or may not be granted depending on that which is stipulated in applicable regulations.” This is clearly proof of the judges’ inclination –even those with dissenting votes- to uphold the case law of the Court in regard to plurality and diversity in the use of the broadcasting spectrum just as the Commission and Office of the Special Rapporteur have done.
For the Inter-American Court, there is not doubt that the Venezuelan state, acting against legislation and regulatory norms on title transfers, ignored the procedural guarantees in the RCTV case, acted in a discriminatory manner, and violated the American Convention on Human Rights when it restricted the freedom of expression of Marcel Granier and other board members and the channel’s employees. The ruling in the case presented by the IACHR supports the premise of democratization of the spectrum, affirming that it is correct to proceed with the allocation of licenses and the basic value of the protection of the right to freedom of expression.
It is thus impossible to interpret the June 22 ruling as a precedent in favor of the granting of licenses in perpetuity. On the contrary, the Court’s decision supports the standards of diversity and plurality that the Office of the Special Rapporteur for Freedom of Expression of the IACHR promotes in administrative assignment and broadcasting frequency renewal processes.
The Office of the Special Rapporteur for Freedom of Expression of the IACHR and the Court through this ruling support the idea that “the allocation, withdrawal or decision not to renew frequencies or licenses for discriminatory or arbitrary reasons must be avoided.”
* Researcher specializing in media regulation, Universidad del Zulia (Venezuela)