Case Summary and Outcome

The Supreme Court of Mexico held that the seizure of devices that provide internet services without a license did not violate the right to freedom of expression and access to information. Article 305 of the Federal Telecommunications and Broadcasting Law establishes that persons who provide telecommunications or broadcasting services without a license or authorization shall forfeit in favor of the Nation the property, installations, and equipment used in the commission of such infractions. The petitioner, who had devices that were used to provide internet services without the required license, claimed that the seizure violated the right to freedom of expression and access to information because the internet allowed people to express their ideas and receive information. Additionally, the petitioner referred to Article 7 of the Mexican Constitution, which establishes that “in no case property used for the dissemination of information, opinions, and ideas may be seized as an instrument of crime”. The Federal Institute for Telecommunications and Radio Broadcasting argued that there was no censorship nor restrictions to the dissemination of information, but rather a punitive measure against an illegal provision of services.

The Court held that the prohibition of the confiscation of equipment and properties used for the dissemination of information, opinions, and ideas only applies as a “hard rule” when those goods are substantially linked to the aforementioned purposes (for example, printing instruments of a newspaper or the paper needed to publish magazines or books) or when the seizure is used to censor certain ideas or points of view. Further, the Court held that devices used for the dissemination of information, opinions, and ideas should not be confused with any infrastructure or devices used for the provision of public services, and that, here, the seizure of goods did not seek to penalize a certain point of view, nor prevent a certain group of people from expressing their opinions. Additionally, the Court held that the petitioner did not engage in the provision of these irregular services to disseminate certain information, but rather they intended to make these services available to people to obtain an economic benefit. The Court noted that licenses for the provision of public telecommunications and broadcasting services are instruments that allow States to guarantee that public services, such as the internet, are provided under conditions of competition, quality, plurality, universal coverage, continuity, free access, and without arbitrary interferences for the benefit of all persons. In the Court’s opinion, the legal framework is clear and neutral, and the sanctions established to ensure its effectiveness pursue a legitimate aim and are reasonable and proportionate.

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Facts

On January 25, 2019, after receiving an anonymous complaint, the Federal Institute for Telecommunications and Radio Broadcasting inspected the petitioner’s home in the municipality of Miahuatlán de Porfirio Díaz, Oaxaca, and found devices that were being used to provide internet services without the required license.

On June 19, 2019, the Institute initiated administrative proceedings to sanction the petitioner, and to seize the property, installations, and equipment, following Article 305 of the Federal Telecommunications and Broadcasting Law. The article establishes that “persons who provide telecommunications or broadcasting services without a license or authorization, or who by any other means invade or obstruct the general means of communication, shall forfeit to the Nation the property, installations, and equipment used in the commission of such infractions.” [para. 51]

On November 25, 2019, the Institute issued a fine against the petitioner and seized the property, facilities, and equipment used to provide the service. It considered that the petitioner had violated Article 66 of the Federal Telecommunications Law for having marketed internet services to consumers without having the corresponding authorization. Hence, a fine of 253,470.00 Mexican pesos (around USD 15,000) was imposed.

On December 17, 2019, the petitioner filed an amparo action against the Institute, alleging that the measures issued by the latter violated his rights to freedom of expression and access to information. The petitioner argued that Article 7 of the National Constitution expressly states that “in no case property intended for the dissemination of information, opinions, and ideas can be seized as an instrument of crime.” [para. 79] The petitioner argued that Article 305 of the Federal Telecommunications and Broadcasting Law violated Article 7 of the National Constitution by allowing the seizure of property, facilities, and equipment that are used to provide internet. In addition, the petitioner alleged that this was disproportionate because it affected his right to subsistence on a minimum vital since he was able to commercialize internet access through said equipment.

On August 19, 2020, the Second District Administrative Court for Economic, Broadcasting, and Telecommunications Issues ruled in favor of the defendant. The court explained that Article 305 does not entail an act of censorship or a restriction on the dissemination of information, but rather a punitive measure imposed through a procedure followed in the form of a trial. Additionally, the court held that the constitutional prohibition on the seizure of property used for the dissemination of information did not apply to the specific case. For the Court, the contested norm does not sanction the dissemination or expression of information or ideas, but rather the provision of a service without the requirements established for that purpose. The Court held that there is a legitimate aim in removing certain devices from the legal market, to prevent the proliferation of irregular services.

On September 3, 2020, the petitioner appealed, arguing that the seizure affected the rights to freedom of expression and access to the internet. The petitioner asserted that the seizure of his property was disproportionate because “the area of operation of the seized property belongs to a region where the general population needs Internet access, which [was] affected by the removal of the aforementioned instruments, since they are deprived of access to a universally recognized right.” [para. 31] The petitioner also explained that his activity as an internet service provider is protected by Article 7 of the Mexican Constitution and Article 13 of the American Convention on Human Rights.

On March 11, 2021, the First Circuit Tribunal for Economic, Broadcasting and Telecommunications Issues declined jurisdiction to review the constitutionality of Article 305 and referred the matter directly to the Supreme Court of Mexico.

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Decision Overview

Judge Alfredo Gutiérrez Ortiz Mena delivered the unanimous opinion of the Supreme Court of Mexico. The Court had to decide whether Article 305 of the Federal Telecommunications and Broadcasting Law violated the petitioners’ right to freedom of expression—by allowing authorities to seize the property of goods used to unlawfully provide telecommunications or broadcasting services.

The petitioner argued that the seizure established by Article 305 of the Federal Telecommunications and Broadcasting Law violated the right to freedom of expression, the right to access information, and press freedom because the devices were used to provide internet access.  The petitioner argued that the deprivation or seizure of his property and equipment by the respondent was an indirect restriction to freedom of expression and access to information.

For its part, the defendant argued that the petitioner’s arguments were inapplicable because the seizure did not affect the dissemination or expression of information or ideas, but rather the provision of a service that did not meet the requirements established by law.

First, the Supreme Court of Mexico explained that Article 305 of the Federal Telecommunications Law held that “persons who provide telecommunications or broadcasting services, without having a concession or authorization, or who by any other means invade or obstruct the general means of communication, shall forfeit to the Nation the property, facilities, and equipment used in the commission of such violations.” [para. 51]

The Supreme Court recalled that the right to freedom of expression recognized in Article 7 of the Mexican Constitution must be interpreted together with Article 13 of the American Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights. In this sense, the Court explained that these provisions protected the right to freedom of expression against indirect restrictions.

The Court considered that the right to freedom of expression was a precondition to exercise other human rights, and that it guaranteed the existence of channels for public debates. For the Court, freedom of expression is essential to have an accountable and democratic government.

Additionally, the Court stated that human rights are transversal to the entire legal system and can serve as a limit to the validity of all legal acts and norms. Thus, the Court held that the right to freedom of expression must be applied in light of the framework of administrative proceedings and sanctions.

Subsequently, the Court held that freedom of expression protects “the different facets of the communicative process, that is, from its formation in each individual to its dissemination and free mass exchange, both informally and spontaneously and through more formal practices (such as the media).” [para. 96]

Then, it said that the media benefits from enhanced constitutional protection since “the rights to expression and access to information reach a maximum level when they are exercised by journalism professionals through the institutionalized vehicle for the formation of public opinion, which is the press, understood in its broadest sense,” [para. 124] following the Supreme Court case Tesis aislada CCIX/2012.

The Court also considered that the internet has become an indispensable channel for people to exercise their rights to freedom of expression and access to information and that restrictions to data flow should be minimal, as stated in Mexican Supreme Court case Tesis aislada CII/2017. The Court recalled that Article 6 of the Constitution establishes, in its third paragraph, that “the State shall guarantee the right of access to information and communication technologies, as well as to broadcasting and telecommunications services, including broadband and Internet.” [para. 93] Likewise, the Court remarked that said norm orders States to establish conditions for the effective competition in the provision of said services.

Considering this, the Court, citing Mexican Supreme Court case Constitutional controversy 117/2014, explained that the respondent institute was created by the Constitution to “protect the rights of citizens to express themselves freely and to obtain information without obstacles imposed by the government, nor, mainly, by economic agents in the telecommunications and broadcasting sectors.” [para. 94]

Likewise, the Court recalled that Article 7 of the Mexican Constitution was reformed in 2013 to strengthen it. In this sense, the Court explained that said constitutional reform added the following paragraph: “[Freedom of expression] cannot be restricted by indirect ways or means, such as the abuse of official or private controls, of newsprint, of radio frequencies or of fixtures and appliances used in the dissemination of information, or by any other means and information and communication technologies aimed at preventing the transmission and circulation of ideas and opinions. In no case property used for the dissemination of information, opinions, and ideas can be seized as an instrument of crime.” [para. 113] Moreover, the Court held that this list of indirect restrictions to freedom of expression, laid out in Article 7 of the Mexican Constitution, is merely illustrative and that new indirect restrictions, such as governmental economic funding or abusive official advertising, could be classified too, as said in Mexican Supreme Court case Amparo en revisión 1359/2015.

Nevertheless, the Court held that the prohibition of the confiscation of instruments used for the dissemination of information, opinions, and ideas, only applies as a “hard rule” when those goods are substantially linked with the aforementioned purposes (for example, printing instruments of a newspaper or the paper needed to publish magazines or books). The Court also said that the prohibition applies when the seizure seeks to criminalize certain ideas or points of view. Besides these two scenarios, the Court considered that the prohibition established in Article 7 does not operate as a hard rule, but as a principle, subject to different levels of scrutiny. For the Court, strict scrutiny applies “to measures that introduce an indirect restriction on the content of the manifestations, speeches or information that are the subject matter of the exercise of the right to freedom of expression and the right of access to information, while an ordinary scrutiny will be applicable if such regulation only represents an indirect restriction projected on matters of form, time and place.” [para. 119]

Thus, the Court opined that “devices used for the dissemination of information, opinions, and ideas should not be confused with any infrastructure or devices used for the provision of public services in this area.” [para. 116] Moreover, the Court held that the purpose of Article 7 was not to “protect the human right to property, but the human rights to freedom of expression and access to information.” [para. 126] The Court also stated that indirect restrictions on freedom of expression are prohibited when they have the potential to create a “deterrent” that prevents people from participating openly in public debates. However, it explained that “not every dissuasive effect is constitutionally reprehensible.” [para. 135] “The inhibiting effect of norms is constitutionally reproachable when the discouraged conduct enjoys a protection due to its intrinsic value for the democratic model, such as (…) freedom of expression and access to information.” [para. 136]

The Court held that “it is not enough to prove that the norm has a negative effect on people’s communication conditions; what is relevant is to evaluate the merits of the measure in order to determine whether it generates an unjustified chilling effect.” [para. 144] The Court also argued that licenses for the provision of public telecommunications and broadcasting services are necessary to allow the development of a market that is plural and competitive. Furthermore, it reiterated that the State must guarantee that public services, such as the internet, are provided “under conditions of competition, quality, plurality, universal coverage, interconnection, convergence, continuity, free access and without arbitrary interference, for the benefit of all persons and the free exercise of their fundamental rights.” [para. 174]

In the present case, the Court found that the seizure of goods did not seek to penalize a certain point of view, nor prevent a certain group of people from expressing their opinions. For the judges, there was “no basis for equating the use of equipment to offer telecommunications or broadcasting services without authorization with the use of devices to disseminate information, opinions, and ideas.” [para. 162] Consequently, the Court decided to apply an ordinary scrutiny test and held that “even if the devices used to provide telecommunications services, such as the internet, involve the transmission of content, what is relevant here is that the petitioner has not engaged in the provision of these irregular services to disseminate certain information, but rather that it intended to make these services available to people in order to obtain an economic benefit, regardless of the information accessed by the people.” [para. 163] Correspondingly, the Court held that the prohibition laid in Article 7 did not apply to the present case since it should only apply in cases in which the authorities seize or confiscate goods or property used for the dissemination of information, opinions, and ideas and not for the mere commercialization of a service that does not involve the dissemination of a certain type of information or ideas.

The Court said that the radio-electric spectrum is an asset of the nation’s domain which is susceptible to commercialization in exchange for a price and through a concession regime, as argued in the Mexican Supreme Court case Decision 72/2007. The Court also explained that access to concessions for the provision of public telecommunications and broadcasting services is “constitutionally regulated to allow the development of a media market that is plural and competitive, whose procurement does not depend solely on the economic factor, even providing for some concessions to be assigned directly for reasons of public interest.” [para. 167]

Given the circumstances, the Court held that the legal framework regarding telecommunications and broadcasting licenses was clear, neutral, and open, with general rules reasonably aimed at complying with the constitutional mandate to regulate public services, and that the contested sanctions had no disproportionate impact on the right to freedom of expression. The Court then emphasized that the protection of freedom of expression and access to information “could not be understood without the expansion of the State’s regulatory powers in the telecommunications and broadcasting sectors, since their protection has been deemed insufficient in the context of deregulated markets left to the law of supply and demand,” as argued in Mexican Supreme Court case Constitutional Controversy 117/2014.

Next, the Court held that Article 305 of the Federal Telecommunications and Broadcasting Law pursues a legitimate purpose, that is to comply with the purpose outlined in Article 28 of the Mexican Constitution by establishing an effective system of sanctions for those who violate the legal regime of concessions.

Likewise, the Court held that said norm is adequate for the constitutional objectives that it pursues since it deprives the offender of “the means to carry out the infringing conduct; additionally, the severity of the sanction is an inhibiting factor for other persons to carry out the same conduct.” [para. 180]

In turn, the Court held that the rule is “strictly proportional” because the forfeiture only affects the devices strictly related to the commission of the offense. Likewise, the Court explained that “it must be concluded that in any case, the collective benefit achieved with the challenged norm is greater since the disincentives for individuals to circumvent the regime of concessions to provide telecommunications services are indispensable to achieve the purposes of Article 28 of the Constitution.” [para. 181]

The Court concluded that Article 305 of the Federal Telecommunications Law “is neutral to the contents that could be transmitted in any of the telecommunications services; it is a sanction that is entirely aimed at inhibiting those who intend to use facilities and devices to provide such services without a concession; furthermore, it does not affect the conditions for the exercise of the rights to freedom of expression and access to information, since it does not prevent those who have such facilities and devices to obtain a concession.” [para. 177]

Consequently, the Supreme Court decided unanimously that Article 305 of the Federal Telecommunications and Broadcasting Law did not violate the petitioner’s right to freedom of expression, and dismissed the amparo action.

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