Licensing / Media Regulation
Valdelomar and Sibaja v. Costa Rican Superintendence of Telecommunications
Closed Expands Expression
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On June 17, 2020, the Constitutional Court of Colombia rendered an opinion on the constitutionality of Legislative Decree No. 516 signed by the President, which was enacted under the powers derived from the previous declaration of the state of emergency in the context of the COVID-19 pandemic. Article 1, which provided for the reduction of the national screen quota during the State of Economic, Social and Ecological Emergency, was deemed unconstitutional. The national screen quota is an instrument that obliges broadcast television operators on national, regional and local channels to include national productions in their programming schedule at certain times and with fixed percentages. The Court concluded that the reduction of the national screen quota may disproportionally affect the right to culture given that the essential public service of television contributes to the development of culture.
On March 17, 2020, the Colombian President, in the context of COVID-19 pandemic, issued Decree 417 “whereby a State of Economic, Social and Ecological Emergency is declared throughout the National territory.” The Decree empowers the presidency to issue legislative decrees under the terms set forth in Article 215 of the Constitution. Based on the declaration of the State Emergency, the President issued the Legislative Decree 516 of 2020, “whereby measures are adopted for the provision of an open broadcast television service, within the framework of the State of Economic, Social and Ecological Emergency”, which was referred to the Constitutional Court for its control. In general terms, the national screen quota is an instrument that obliges broadcast television operators on national, regional and local channels to include national productions in their programming schedule at certain times and with fixed percentages.
The measure adopted drastically reduced the national screen share given that the percentages originally established at seventy or fifty percent (70% or 50%), depending on the time of broadcast, were reduced to twenty (20%), that is to say, a reduction of between thirty and fifty percent (30% to 50%).
By Order of April 22, 2020, the Court asked the Ministry of Information, Technology and Communications, the Ministry of Culture, the National Directorate of Copyright and different societies representing actors, writers and other audiovisual workers, to answer some questions in order to obtain a broad overview of what was decided by the National Government in Legislative Decree 516 of 2020.
The Ministry of Information, Technology and Communications stated that the rationale behind the regulation was that the production of national products, such as documentaries, series, soap operas and live programs, required more than 50 people, which was impossible given the sanitary conditions generated by the pandemic. Moreover, the regulation was intended to avoid greater economic pressure on these operators, which would ultimately affect the generation of employment in the broadcast television sector and also in the market of producers and artists.
The groups representing cultural workers clarified that the broadcasting and production of national programs are different things, since the screen quota guarantees pluralism, competition, the right to culture, freedom of artistic and cultural expression, the right to work, etc. They pointed out that the measure adopted disproportionately affects the process of broadcasting television programs, when what is actually limited as a consequence are the processes of production of new content. The measure unjustly and disproportionately affects the market of creative artists, actors, audiovisual producers, cultural workers, some of them holders of copyright remuneration rights.
The Public Prosecutor’s Office was requested to declare the unconstitutionality of Article 1 of Decree 516 of 2020 and the constitutionality of Articles 2 and 3. It found that the requirements of purpose, sufficient motivation, necessity and incompatibility were not met.
The Constitution of Colombia establishes the automatic constitutional judicial control of legislative decrees issued within the framework of states of emergency, as provided for in Articles 212 to 215 of the Constitution.
The main issue before the Constitutional Court of Colombia was the constitutionality of Legislative Decree 516 of 2020, in particular Article 1, which provided for the reduction of the national screen quota during the State of Economic, Social and Ecological Emergency.
In general terms, the national screen quota is an instrument that obliges broadcast television operators on national, regional and local channels to include national productions in their programming schedule at certain times and with fixed percentages.
First, the Court considered that Article 365 of the Constitution establishes that “public services are inherent to the social purpose of the State” and that, therefore, it has the duty to “ensure their provision.” Moreover, Articles 75 and 77 of the Constitution are closely linked to the public television service, since the former establishes that “the electromagnetic spectrum is an inalienable and imprescriptible public good subject to the management and control of the State”, while the latter prescribes that it is incumbent upon the Congress of the Republic to issue “the law that will set the policy on television.” Accordingly, Article 1 of Law 182 of 1995 establishes that television “is a public service subject to the ownership, reservation, control and regulation of the State.”
The Court stated that television is an essential public service with a profound capacity to influence society and, therefore, with a widespread power to impact the exercise of freedom of expression, the right to inform and be informed, the right to communication and the guarantee of democratic participation. In addition, it specified that public service television has a direct impact on the protection of culture and national identity.
The Court considered that the right to culture imposes on the State the obligation to respect, protect, promote and guarantee access, participation and contribution to culture for all, within the framework of recognition and respect for ethnic and cultural diversity. This right is based on constitutional mandates and international instruments, specifically Articles 2, 7 and 70 of the Constitution and Article 15 of the International Covenant on Economic, Social and Cultural Rights and Article 14 of the San Salvador Protocol.
Moreover, the Court relied on General Comment No. 21 of the Committee on Economic, Social and Cultural Rights, which states that the following obligations of the State derive from the right of individuals to participate in cultural life: (i) not to obstruct participation, (ii) to ensure conditions for participation, (iii) to facilitate such participation, and (iv) to promote cultural life, access to and protection of cultural property.
On Judgement C-654 of 2003, the Court highlighted the intrinsic link between television, public opinion and culture. Among its purposes, it highlighted those of providing information, educating, recreating, promoting constitutional mandates, and fostering the dissemination of national, regional, and local cultural values and expressions.
The Court considered that the National Government started from an erroneous premise. The national screen quota guarantees nationally produced programming, which does not require an immediate production. The motivation of the Legislative Decree confuses two different concepts, namely, production and broadcasting (screen quota). While the isolation measures are intended to safeguard the health and lives of people on the national territory in the context of the pandemic, the Court found that the reduction of the percentage of national screen share is not directly related to that purpose. The regulation can be complied with without exposing audiovisual workers, for example by rerunning already broadcast programs, because the regulation does not require the broadcasting of new productions.
The Court also found that the National Government did not technically argue the need to reduce the screen quota by such a significant percentage.
The Court concluded that despite the fact that the National Government recognized in Decree 516 of 2020 that the television sector cannot develop its activities normally due to the isolation measures adopted, it decided to opt for the most drastic choice by eliminating the limit on the broadcasting of foreign products. The Government did this without even evaluating the existence of other obvious options that would allow cultural workers to better face the income reduction of this sector.
In summary, the Court held that the measure to reduce the national screen quota was unconstitutional not only due to the failure to comply with the requirements of purpose, external connection, factual necessity and sufficient motivation, but also due to the evidently disproportionate nature of the restriction of the right to culture.
On these grounds, the Court declared Article 1 of Legislative Decree 516 of 2020 unconstitutional.
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The decision expands expression to the extent that it acknowledges the intrinsic link between television and the rights to freedom of opinion and expression as a significant instrument for the realization of the right to culture.
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