Licensing / Media Regulation
The Case of Patrick Chitongo
Closed Mixed Outcome
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There is a Spanish language version of this case available. View Spanish version
The Mexican Supreme Court granted a community radio station its constitutional rights (acción de amparo indirecto) against the Department of Health’s refusal to contract with it for the dissemination of official advertising, particularly advertisements promoting the government’s social communication campaigns. The petitioner argued that the authority breached its duty to give effect to freedom of expression and the right to inform, in accordance with the principle of equality. The Court reasoned, firstly, that the refusal to contract was not based on any legal provision because in the rules that govern broadcasting in Mexico there is no legislation that establishes community radio stations, only concessionaires and permit-holders. Secondly, it said that the fact that the community radio broadcaster did not have national coverage was irrelevant because the contract opportunity was not requested to provide a national broadcasting service, but to provide broadcasting in equitable terms, that is, broadcast service in accordance with the petitioner’s local radio coverage capacity. The Court ordered the Department of Health to annul the administrative act that excluded the community radio station from the possibility of being appointed to disseminate official advertising and, in its place, to issue a new administrative act that applied the criteria it had set out.
A community radio station filed an action to indirectly enforce constitutional rights (acción de amparo indirecto) against the Department of Health’s refusal to contract with it for the dissemination of official advertising, particularly advertising that promoted the government’s social communication campaigns. The petitioner argued, as the holder of these rights, that the authority breached its duty to give effect to freedom of expression and the right to inform, in accordance with the principle of equality.
The district judge that heard the action to indirectly enforce constitutional rights (acción de amparo indirecto) decided to terminate the proceedings. The petitioner contested this decision and filed for review, which was heard by the Supreme Court in exercise of its power to assume jurisdiction (facultad de atracción). This case brief refers to the review proceedings before the Supreme Court.
The Court explained the facts of the case: “the petitioner holds a permit to use a radio frequency for cultural purposes […], [the permit] was granted on the basis, among others, of article 13 of the Federal Law on Radio and Television, which provides that the Department of Communication and Transportation may grant concessions and permits, but the latter can only be granted when the media outlet, whether radio or television, has a purpose that is official, cultural, experimental, educational or has been established by public bodies or entities to fulfill their purpose and deliver services.” The petitioner, acting in its capacity as holder of a radio permit, submitted a request to the Department of Health to enter a contract to participate on an equal basis in the promotion of the government’s social communication campaigns under the Department’s responsibility. The request was founded on compliance with the obligations to give effect to freedom of expression and the right to inform, so the petitioner would not be unfairly excluded from advertising contracts, considering that its exclusion would, in effect, be an indirect means of violating these rights in light of articles 6 and 7 of the Constitution, 19 of the International Covenant on Civil and Political Rights and 13 of the American Convention on Human Rights and the principle 13 of the Declaration of Principles on Freedom of Expression that complements them” [p. 21-22].
The petitioner’s request was resolved by the General Director of Social Communications of the Department of Health. On the core issue, the General Director “determined that the messages disseminated by the Directorate under his responsibility ‘have a national reach, and for this reason it always seeks media outlets with a broad coverage that identify with the target audience, and, therefore, guarantee a high impact.’” He further added that to achieve this purpose, the General Directorate “selects the media outlets that will broadcast the institution’s message […] based on the following factors: target audience[;] media outlet coverage (rating in the case of radio and television and print run in the case of print media)[;] the outlet’s capability to fulfill the opportunity[;] and that [the media outlet] is not under sanction from the Department of Civil Service” [p. 23].
This led the authorities to conclude that the petitioner’s case “refers to a community radio broadcaster that does not meet the Department of Health’s expectations regarding the dissemination to fulfilling its objectives, for, although it has been registered, it is still in pre-implementation phase” [p. 24].
In this case, the Supreme Court reversed the ruling under review and granted the action to indirectly enforce constitutional rights (acción de amparo indirecto) to the petitioner, ordering the responsible authority to annul the administrative act that excluded the community radio station from the possibility of being appointed to disseminate official advertising and, in its place, to issue a new administrative act that applied the criteria set out by the Supreme Court in the matter under judicial review.
The Court had to determine the constitutional reasonableness of several factors that served as a basis for the administrative authority’s decision to deny the media outlet’s participation in the distribution of official advertising. In this regard, the Court considered whether such factors “constitute indirect means or ways of restricting the right to expression, directed at preventing the communication and circulation of ideas and opinions” [p. 28].
The Court began its analysis by asserting that “broadcasting is a technological means to exercise the right to freedom of expression, in that sense, any regulatory framework or government policy should be premised on guaranteeing the exercise of that right, which can also be restricted; however, these restrictions must be prescribed by law and seek the protection of legally protected interests or assets: a) the respect of the rights of others; b) the reputations of others; c) the protection of national security; d) the protection of public order; e) the protectio of public health; and f) the protection of public morals” [p. 31]. Further, the Court added, any restriction on freedom of expression must be reasonable in that it must be aimed at the objectives being sought and not go beyond protecting any of the interests or rights referred to in the previous paragraphs, and it must be proportionate in that it must not be such as to completely prevent exercising a right or create inhibitions in the population regarding its exercise. The Court went on to say that recognition of the right to freedom of expression implied a prohibition on States to use indirect means to restrict the right, including the establishment of mechanisms that are discriminatory or that have that effect. In this regard the Court referred to Article 13 of the Declaration of Principles on Freedom of Expression, of the Inter-American Convention on Human Rights, where it stated: ‘The exercise of power and the use of public funds by the State, the granting of customs duty privileges, the arbitrary and discriminatory placement of official advertising and government loans; the concession of radio and television broadcast frequencies, among others, with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression and must be explicitly prohibited by law’” [p. 32].
The Court found “the denial to contract that is being challenged is based on criteria that is not prescribed by any legal provision, because in the rules that govern broadcasting in Mexico there is no legislation that establishes community radio stations, instead there are only concessionaires and permit-holders” [p. 38]. Therefore the petitioner was characterized as a community radio station by the responsible authority. “On the other hand the refusal to contract that is being challenged is based on the petitioner being a community radio broadcaster that does not meet the dissemination expectations of the responsible authority, because the messages to be disseminated have a national range and, therefore, it invariably seeks media outlets with a broad coverage that identify with the target audience and can guarantee a high impact; ignoring the fact that the coverage is not national, does not imply the responsible authority is unable to meet the intended purposes and, thus, cannot contract the broadcast in question, because the contract opportunity was not requested to provide a national broadcasting service, but to provide broadcasting in equitable terms, that is, broadcast service in accordance with the petitioner’s radio coverage capacity (local)” [p. 39].
The Supreme Court said that the fact that a public entity contracts the dissemination of its activities with a radio station with national coverage does not guarantee that the intended purpose will be fulfilled, that is, achieving national dissemination. In fact, it said, there may be special cases where such broadcasters are not better suited for transmitting and disseminating official programs or advertising: for example, if all or part of the population served by the national broadcaster speaks an indigenous language the intended dissemination purpose cannot be achieved if the outlet does not have announcers who speak the native language, however, the permit-holder broadcaster could have this capacity; or if broadcasters with national coverage cannot reach this community with a clear signal because of the geographic location and orographic conditions of its settlements, but the permit-holder broadcaster can do this. The Court went on to say that in these cases the Department’s aim of publicizing its programs and official advertising could not be achieved through broadcasters with national coverage, but could be attained through a permit-holder like the petitioner, because the petitioner has a channel to disseminate these programs, identifies with the language and customs of the target audience of the population it serves, and because due to its technical characteristics, it can broadcast programs in the community in which it has been authorized to operate.
Regarding the public institution’s performance, the Court stated that its refusal to award a contract to the petitioner was based on restrictive measures that lacked reasonableness because they favored media outlets based exclusively on their general broadcast range and not their actual coverage of all the regions and communities in the country. It went on that this could have the effect of making the allocation of official advertising discretionary and restrictive; lead to improper and unequal distribution; and have an adverse effect on protecting respect for the rights of other broadcasters. The Court said that the discriminatory allocation of official advertising could lead to undue restrictions on the communication and circulation of ideas and opinions and transparent and measurable allocation criteria for government advertising. It said that these restrictive measures prevent the full exercise of freedom of expression and information and lack constitutional reasonableness and proportionality.
It is worth quoting some excerpts of the ruling related to freedom of expression. Thus, the Court asserted, “[i]n accordance with the constitutional provisions and international conventions that were mentioned [articles 6 and 7 of the Mexican Political Constitution, article 13 of the American Convention on Human Rights, Article 19 of the International Covenant of Civil and Political Rights, Principle 13 of the Declaration of Principles of the IACHR], it should be noted that the right to freedom of expression includes seeking, receiving and imparting information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print or in the form of art, or through any other medium of one’s choice, whose exercise cannot be subjected to prior censorship but to subsequent liability, which shall be expressly prescribed by law and shall be necessary to ensure respect for the rights or reputation of others, protection of national security, public order, health or public morals. (…) It is also important to note the prohibition on restricting freedom of expression by indirect methods or means that are aimed at preventing the communication and circulation of ideas and opinions, among others, the arbitrary and discriminatory placement of official advertising with the aim of pressuring and punishing or rewarding and providing privileges to social communicators and the media according to their editorial line, and that the State should refrain from using its power and public finances for these purposes, because when it exercises direct or indirect pressure to silence the informative work of social communicators, it obstructs the full functioning of democracy, the consolidation of which is closely related to the free exchange of ideas, information and opinions among people” [p. 28-29].
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The decision establishes some basic standards for analyzing official advertising and its relationship with indirect restrictions on freedom of expression.
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