Case Summary and Outcome

The First Chamber of the Mexican Supreme Court of Justice held that the 2017 decree that reformed the Federal Telecommunications and Broadcasting Law violated the Constitution of Mexico by restricting the petitioner NGO’s right to defend the rights of the audiences, freedom of expression, and access to information. The Strategic Litigation Center for the Defense of Human Rights (Centro de Litigio Estratégico para la Defensa de los Derechos Humanos) filed an amparo to declare the nullity of the 2017 decree for illegally restricting procedural remedies for the defense of the rights of the audiences—among other reforms that it considered violated the principle of non-retrogression of human rights and failed the constitutional proportionality test. Likewise, it mentioned that Article 15 of the 2017 decree severely limited the powers of the Federal Telecommunications Institute to exercise oversight and sanction concessionaires in favor of the rights of media audiences.

The Court began by underscoring that the Mexican Constitution created the Federal Telecommunications Institute to guarantee the protection of human rights, particularly the rights of media audiences. The Court further recognized media users and audiences as a collective subject deserving of legal protection. The Court thus held that the 2017 decree—by empowering telecommunications concessionaires to issue rules for self-regulation and repealing the guidelines stipulated by Mexico’s Federal Telecommunications Institute—violated the principle of non-retrogression of human rights and the rights of media audiences. The Court explained that by delegating to the concessionaires the power to regulate themselves, pluralistic and quality public deliberation, freedom of expression, and access to information were put at risk since such agents have their own economic and commercial interests that could discourage open public debate. In addition, the Court held that by repealing the monitoring and sanctioning powers of Mexico’s Federal Telecommunications Institute, the government violated the rights of Mexico’s audiences by restricting their ability to prosecute possible violations of their rights. Also, the Court held that the 2017 decree violated the right to access information and the rights of media audiences by eliminating the obligation of concessionaires to distinguish between “facts,” “opinions” and “advertising” when transmitting information in radio and television services.

---

Facts

On July 4, 2017, the Strategic Litigation Center for the Defense of Human Rights (hereinafter, the petitioner) filed an amparo against the Chamber of Deputies, the Chamber of Senators, the President of the Republic, and the Secretary of the Interior, arguing that the official decree published on October 31, 2017 (hereinafter, 2017 decree)—which reformed the Federal Telecommunications and Broadcasting Law of Mexico—violated the right to freedom of expression and the right of media audiences.

The petitioner argued that the decree unlawfully restricted the procedural remedies for the defense of the rights of media audiences and users. It explained that it had a legitimate interest in the litigation considering its mission of promoting human rights and the organized participation of the population in matters of public interest. In particular, the petitioner argued that Article 6, paragraph B, section VI, of the Political Constitution of Mexico “recognizes the users of telecommunications services as subjects of rights.” [para. 38]

In addition, the petitioner argued that the 2017 decree violated the prohibition of non-retrogression of international human rights law. On this point, the petitioner explained that the reform repealed the minimum standard established regarding the rights of media audiences as a subject in itself. It also mentioned that Article 15 of the new decree severely limited the ability of the Federal Telecommunications Institute to exercise its oversight and sanctioning powers to the detriment of media audiences and users.

In addition, the petitioner alleged that the new decree limited its right to defend media audiences because the new decree eliminated the regulation faculties of the Federal Communications Institute and allowed telecommunications services concessionaires to self-regulate.

On June 19, 2018, the First District Court of Administrative Matters Specialized in Economic Competition, Broadcasting, and Telecommunications of Mexico City ruled that the petitioner lacked standing to challenge the constitutionality of the decree and rejected the amparo because according to the corporate purpose of the plaintiff “it was not clear that it was created to intervene concretely in the effectiveness of the rights of the audiences” of the media [para. 8]. Consequently, the Court ordered the dismissal of the case.

On July 13, 2018, the petitioner filed an appeal for review arguing that the decree that amended the Federal Telecommunications and Broadcasting Law of Mexico violated the right to freedom of expression and the right of media audiences as a subject in itself. In particular, the petitioner argued that the decree unlawfully restricted the procedural remedies for the defense of the rights of the audiences.

In addition, the petitioner remarked that the 2017 decree eliminated the powers of the Federal Telecommunications Institute to guarantee the rights of telecommunications media users by controlling the concessionaries of television and radio programs.

With this in mind, the petitioner argued that the new decree harmed users by leaving them without a regulatory framework to protect them from media monopolies or oligopolies. Consequently, the petitioner claimed that the 2017 decree failed the constitutional proportionality test

In parallel, on August 28, 2018, the President of Mexico filed a motion for adhesive review.[1] The President argued that the petitioner did not have standing to file the amparo action. Likewise, he added that if the amparo was granted, it would not benefit the rights of the audiences of the television and radio services. For this reason, the President of Mexico requested the rejection of the petitioner’s appeal.

On December 12, 2018, the Collegiate Circuit Court revoked the judgment of the first instance court, partially lifted the dismissal of the case, and remitted it to the Mexican Supreme Court of Justice to analyze the constitutionality of the challenged decree.

On December 5, 2019, the Chief Justice of the Mexican Supreme Court held that the appeal for review was admissible for consideration under original jurisdiction and assigned the case to Judge Juan Luis González Alcántara Carrancá.

 

[1] The adhesive review or appeal (“recurso de revisión adhesiva”) is a procedural remedy characteristic of the Mexican legal system. The adhesive review or appeal is regulated in Article 182 of the Mexican amparo law, which establishes that it can be filed by “the party that has obtained a favourable judgement and the party that has a legal interest in the continuation of the challenged judgement or decision.“

---

Decision Overview

Justice Juan Luis González Alcántara Carrancá issued the decision for the First Chamber of Mexico’s Supreme Court of Justice. The Court had to decide whether the 2017 decree that reformed Mexico’s Federal Telecommunications and Broadcasting Law violated the petitioner’s rights by restricting the procedural remedies available to them as defenders of the rights of media audiences. In addition, the Court had to analyze whether such reforms affected the rights of media audiences and users and the freedom of expression as laid out in the Mexican Constitution.

The petitioner argued that Article 15 of the new 2017 decree abolished the power of the Federal Telecommunication Institute to establish a minimum floor of ethical rules for the media, allowing media concessionaires to dictate their own codes of ethics and eliminating the ability of the Federal Telecommunications Institute to establish general guidelines. In addition, the petitioner stated that the new 2017 decree removed the Federal Telecommunications Institute’s power to control and sanction media licensees or concessionaires. In this regard, the petitioner noted that these reforms were a step backward for the rights of the audience, as they would be constrained to the codes of ethics established by the companies that own the media themselves, without the Federal Telecommunications Institute being able to intervene.

In addition, the petitioner explained that Article 256, Clauses III and IV of the new 2017 decree violated the right of audiences and users of telecommunications media to receive information because it removed the rule that required news programs to distinguish between “information”, “opinions” or “commercial advertising” during broadcasts.

The petitioner explained that these derogations limited its capacity as an NGO advocating for media users, as several rules that empowered it to defend the rights of television and radio audiences were removed. In light of this, the petitioners argued that the 2017 decree did not meet the constitutional proportionality test’s standards because it severely restricted the right to receive information, which is part of the right to freedom of expression in Mexico.

Lastly, the petitioner argued that the 2017 decree disregarded the audiences and users of telecommunication media as subjects of rights. On this point, it mentioned that media audiences are diverse, and the Mexican legal regime protects such diversity

For his part, the President of Mexico requested that the amparo be dismissed. In particular, the President noted that the petitioner lacked standing to bring the amparo. He also insisted that the petitioner NGO was not seeking to protect the rights of television and radio audiences.

At the outset of its analysis, the Court recalled that the Mexican Constitution, in articles 6, 7, 27, 28, 73, 78, 94, and 105, regulated telecommunications and created the Federal Telecommunications Institute as an autonomous constitutional body, with legal personality and its own assets and powers to efficiently develop broadcasting and telecommunications. The Court held that the purpose of creating Mexico’s Federal Telecommunications Institute was to foster the “robust and uninhibited exercise of the human rights to freedom of expression and access to information, on the basis that broadcasting and telecommunications are public services that satisfy a social function and configure instruments to make such rights effective,” as it was laid out in the Mexican Supreme Court case 117/2014. [para. 45.3]

The Court recalled that on December 21, 2016, the Mexican Federal Telecommunications Institute issued the “General Guidelines on the Defense of Audiences” (Lineamientos Generales sobre la Defensa de las Audiencias) to protect the rights of audiences or media users. However, the Court explained that the 2017 decree eliminated those guidelines. Likewise, the Court emphasized that the decree authorized telecommunications service providers or concessionaires to issue their own codes of ethics, i.e., to regulate themselves.

Subsequently, the Court analyzed the constitutional validity of the 2017 decree and its impact on the figure of the “defender of media audiences”, and the mechanisms they have to safeguard those rights.  Regarding the question of whether the 2017 decree violated the right to defend the rights of media audiences, the Court held that the answer to that question was affirmative.

The Court emphasized that the defense of human rights is recognized in international human rights law and that persons working for human rights should be recognized and protected too. The Court also held that, citing UN General Assembly Resolution 53/144, “everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.” [para. 57] The Court also considered that any type of person, including non-governmental organizations, could be a human rights defender. The Court remarked that “there are rights that are fundamental to the realization of the right to defend human rights, among them: freedom of association, peaceful assembly, opinion and expression and the right to have access to information; to provide legal assistance; and to develop and discuss new ideas in the field of human rights.” [para. 61]

The Court also held that within the framework of the Organization of American States, Resolution 1671 of June 7, 1999, recognized the important work of human rights defenders and urged States to provide them with guarantees to carry out their work. Similarly, the Court recalled that “the work carried out by human rights defenders is fundamental to the strengthening of democracy and the rule of law,” as it was set by the Inter-American Court of Human Rights in the case of Valle Jaramillo et al. v. Colombia. [para. 67] Thus, the Court held that the constitutional recognition of the defense of human rights is based on the State’s obligation to promote, respect, protect, and guarantee them.

Next, the Court explained that from a comprehensive reading of articles 256, 259, and 261 of the new 2017 decree it was clear that it “empowered media concessionaires to issue a code of ethics under a self-regulatory model to (a) inform the general public how they will respect and promote the rights of the audiences; (b) comprehensively regulate the performance of the defenders of the audiences; and, (c) include the guiding principles in the matter, which they also undertake to promote, protect, respect and guarantee.” [para. 77]

On this point, the Court remarked that such rules allow concessionaries to freely issue codes of ethics without having to comply with guidelines, directives, or review by the Federal Telecommunications Institute, or any other authority. Likewise, the Court explained that per the 2017 decree, the previous general guidelines on the defense of media audiences were repealed.

The Court recalled that the Mexican Constitution created the Federal Telecommunications Institute to guarantee “the protection of certain human rights (those of media audiences) whose exercise is fundamental for the proper functioning of a democratic system.” [para. 82] In this context, the Court explained that the Federal Telecommunications Institute has a series of powers within its scope of specialty as an autonomous constitutional body.

Likewise, the Court held that through “article 6, section B, clause VI, of the Political Constitution of the United Mexican States, the telecommunications reform entailed the delimitation of an exclusive field for the legislative action of the Congress of the Union regarding two important issues related to its democratic management: (a) the definition and recognition of the rights of media audiences; and, (b) the establishment of their guarantees or mechanisms of protection and defense.” [para. 85] In this sense, the Court held that “the definition of the rights of the audiences (their essential nucleus), as well as the mechanisms for their protection, were established as a material sphere constitutionally reserved to the law, that is, a normative area on which it is not possible to generate content, unless through a law in a formal and material sense.” [para. 86]

In addition, the Court explained that although “the definition of the substantial content of the rights of media audiences corresponds to the legislative branch, it is also true that the regulatory, technical and operational development to implement the mechanisms that make them effective was provided as a material area constitutionally reserved for the Federal Telecommunications Institute, based on Article 28, paragraph fifteen, of the Political Constitution of the United Mexican States.” [para. 87] On this point, the Court said that the Federal Telecommunications Institute has regulatory authority in its area of specialization and, therefore, is empowered to issue general administrative provisions that technically develop both the rights of the audiences, as well as the mechanisms for their defense.

Subsequently, the Court remarked that the referred Institute has the power to “develop a body of rules that advances the structural purposes and protection of rights to freedom of expression and access to information in telecommunications and broadcasting sectors, in a space independent of the political pressures that drive the democratic process, as well as the interests of the regulated entities”, citing the case 117/2014 of the Supreme Court of Mexico. [para. 96] Furthermore, the Court held that these constitutional spheres of competence prohibit other branches of government, and private parties, from issuing regulations.

Likewise, the Court concluded that the Federal Telecommunications Institute is the body “exclusively empowered, by the constitution, to issue general administrative provisions that, among other matters, make effective the procedural mechanisms for the defense of the rights of the audiences.” [para. 101]

In light of this, the Court concluded that “Articles 256, second, third and fourth paragraphs; 259, second paragraph, and 261, third paragraph” of the 2017 decree—”by empowering the concessionaires to issue technical and operational rules that guarantee the effectiveness of the defense of the rights of the audiences (through the issuance of the so-called “codes of ethics”), being a matter whose competence is exclusive to the specialized regulatory body in that matter (the Federal Telecommunications Institute)—, violated to the detriment of the petitioner the principles of legislative preference and hierarchical supremacy of the law.” [para. 108] Likewise, the Court held that delegating to the concessionaires the power to define the technical and operative standards that make possible the defense of the rights of media audiences poses a regulatory risk that “does not favor a pluralistic and quality public deliberation, to the detriment of the principles that govern representative democracy (freedom of expression and access to information).” [para. 109] This is so because according to the Court, the concessionaires operate in a certain way as “market agents that seek to satisfy their own economic and financial interests.” [para. 110] The Court held that proper regulation of the concessionaires “must prevent any monopolistic conduct, both in terms of manipulation and control of information, as well as in terms of acts, aspects, and impacts of an economic and financial nature.” [para. 116]

The Court highlighted that allowing the concessionaires to self-regulate “entailed a transgression […] to the hierarchical supremacy of the law (in the case of the exclusive powers of the Federal Telecommunications Institute) thus creating ‘an unnecessary tension between the requirements that concessionaires must comply with when providing public telecommunications and broadcasting services, and the economic interests that they may pursue,’ which could lead to the establishment of regulations that could be more restrictive for the defenders of the audiences, than the ones issued by the Federal Telecommunications Institute.” [para. 119 ]

Subsequently, the Court had to examine whether the 2017 decree violated the principle of non-retrogression of human rights and the right to defend the rights of media audiences. On this point, the Court held that Article 256 of the 2017 decree “unjustifiably restrict[ed] the procedural remedies available to the petitioner, in its capacity as a defender of the rights of media audiences, by denying it the power to challenge the eluded codes of ethics, and establishing that these shall not be subject to validation, or review, by any State authority.” [para. 120] Likewise, the Court explained that said norm repealed the General Guidelines on the Defense of the Audiences of the Federal Telecommunications Institute. With this in mind, the Court held that Article 256 of the decree constituted a measure “that restricts the essential core of the right of the petitioner to defend human rights.” [para. 122]

Then, the Court explained that “the norms analyzed lack a constitutionally valid purpose that could be pitted against the importance of the right they limit, both directly (on the right to defend the rights of media audiences, as a right that contributes to the strengthening of the democratic regime of the State), and indirectly (on the rights to freedom of expression and access to information within the telecommunications and broadcasting sector).” [para. 125] For the Court, the challenged norm was restrictive of the right to defend the audiences of the media. Likewise, the Court held that such restriction does not pass the constitutional proportionality test. On this issue, the Court held that “there is no logical causal relationship between the restriction of the petitioner’s right to defend media audiences (through the elimination of the procedural remedies implemented by the Federal Telecommunications Institute for such purpose) and the protection, promotion and/or defense of the principle of freedom of expression. In fact, the abrogated ‘General Guidelines on the Defense of the Audiences’ allowed the guarantee of that right.’” [para. 129]

Considering these reasons, the Court concluded that articles 256, second, third and fourth paragraphs; 259, second paragraph; and, 261, third paragraph, were unconstitutional. Similarly, the Court reiterated that the “General Guidelines on the Defense of the Audiences” guaranteed the exercise of the right to defend media audiences and that their repeal “does not find reasonable constitutional justification.” [para. 132] In turn, the Court held that the 2017 decree was “a violation of the principle of non-retrogression on human rights”, which entails an obligation to expand the scope and protection of human rights,

Next, the Court had to analyze Article 15, subsections LIX and LXI, and 216, subsection IV, of the 2017 decree. On this point, the Court explained that the referred norms repealed “the sanctioning powers of the Federal Telecommunications Institute in matters regarding the defense and guarantee of the rights of the audiences” and “its power to suspend as a precautionary measure programming that could result in violation of the rights of the audiences.” The Court held that by eliminating these faculties, “the petitioner’s right to defend the legal sphere of the users of telecommunications and broadcasting services was also violated.” [para. 141] The Court explained that the repealed responsibilities of the Federal Telecommunications Institute allowed “the justiciability of audiences’ rights, that is, to demand sanctions to concessionaires in the event of non-compliance with their obligations in this matter.” [para. 142] In the Court’s opinion, such restrictions violated the right to defend the rights of media audiences and at the same time violated the principle of non-retrogression of human rights.

Subsequently, the Court had to analyze whether the elimination of subsections III and IV of Article 256 of the Federal Telecommunications Law—which required television and radio programs to distinguish between “facts” and “opinions” and “advertising” from “content or information”—violated the right to defend the rights of media audiences.” [para. 142]

The Court explained that freedom of expression and the right to access to information “cover both the expression of opinions and the issuance of factual assertions; however, they are two things that, from the perspective of their legal regime, are not identical.” [para. 156] The Court pointed out that “opinions” are not susceptible to an analysis of truth or falsity as is the case with “facts.” Likewise, the Court held that the dissemination of public information must satisfy the following requirements: be of public interest, truthful, objective, and impartial, that is to say, “it must lack any intervention of subjective judgments [whose] purpose is not to inform society but to establish a position, opinion or criticism regarding a particular person, group or situation.” [para. 158 ]

Furthermore, referring to its jurisprudence in case Tesis Aislada 1a. CCXX/2009, the Court said that ” truthful and impartial information is constitutionally protected. These two requirements may be qualified as limits or internal requirements to the right to information.” [para. 159] The Court remarked that the truthfulness requirement does not entail that all disseminated information must be true since that would impose a burden on the media that would be too difficult to overcome and would denaturalize the right to freedom of expression. For the Court, the “truthfulness” of the information entails a duty by which journalistic work must be “supported by a reasonable exercise of investigation and verification aimed at determining whether what is to be disseminated has sufficient basis in reality.” [para. 161]

On this point, the Court held that a person who disseminates information must be in a position to prove in some way that he has respected a standard of diligence in verifying the facts they are presenting to the public. Moreover, the Court considered that such information must be impartial too, which creates “a barrier against open misrepresentation, the intentional dissemination of inaccuracies and the unprofessional treatment of information whose dissemination could have a notorious impact on the lives of the persons involved.” [para. 165]

In light of this, the Court argued that how information or news is presented to media audiences must clearly suggest whether there are other possible points of view or conclusions about the facts being reported and “comply with a minimum duty of diligence, both in terms of verifying the facts that are the subject of a news item, as well as in terms of what is news and what is the opinion of the person disseminating it.” [para. 167] With this in mind, the Court explained that the purpose pursued by Article 256 subsection III of the Federal Telecommunications Law, which was repealed by the 2017 decree, was to compel concessionaires “to clearly differentiate, in the content they transmit, ‘news information’ from ‘the opinion of the person presenting it’ […] to guarantee the rights to freedom of expression and access to information of media audiences.” [para. 168]

Considering these reasons, the Court concluded that the elimination of the aforementioned regulation limited the rights of media audiences, who are entitled to receive information that differentiates facts from opinions, which, for the Court sets quality standards that consolidate democracy. Likewise, the Court held that the abrogation of the aforementioned subsection III violated the principle of non-regression of human rights by eliminating the authority that made it legally enforceable for concessionaires to distinguish between “opinions” and “information”.

Next, the Court examined whether the elimination of Article 256 (IV) of Mexico’s federal telecommunications law violated the petitioner’s rights. The Court recalled that this provision established that licensees or concessionaires had to distinguish between “advertising” and the rest of the “content” during broadcasts. Likewise, the Court stated that the 2017 decree repealed this regulation. Regarding this, the Court argued that the elimination of the aforementioned subsection IV affected the right of media audiences as consumers of information since advertising plays a fundamental role in the exercise of the autonomy of the will “through the manipulation of their desires, in particular, those related to the acquisition of some good, product or service.” [para. 188] Based on this, the Court held that “if the distinction is not made, audiences run the well-founded risk of receiving ‘misleading’ or ‘disguised’ advertising that leads them to enter into undesired agreements.” [para. 192]

The Court added that the concessionaires of media services must provide objective elements that make it easily identifiable for audiences to distinguish what is information and what is advertising since “only in this way it is guaranteed that consumers-audiences can make rational consumption or expenditure decisions that are authentically in accordance with their autonomy.” [para. 193]

For all the above reasons, the First Chamber of the Mexican Supreme Court concluded that the previously mentioned regulations on the 2017 decree were unconstitutional, Hence, the Court granted the petitioner’s amparo.

---