Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
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The Inter-American Court of Human Rights found that the State of Guatemala breached articles 13 and 26 of the American Convention of Human Rights, on the ground that its regulation regarding the allocation of radio frequencies was discriminatory against indigenous peoples. According to the “Ley General de Telecomunicaciones” (General Telecommunications Bill) radio frequencies will always be allocated to the highest bidder in a public auction. This made it impossible for structurally impoverished indigenous communities to operate their own media outlets, which in turns harms diversity and pluralism in media. Similarly, the Court considered that the criminal persecution undertaken by the State of Guatemala against members of two indigenous communities operating radio stations without licenses, along with other criminal proceedings used to undermine the operation of the radio stations, were disproportionate measures that breached article 13.2 of the American Convention.
In 1996, the State of Guatemala approved the “Ley General de Telecomunicaciones” (LGT) (General Bill of Telecommunications), which established the “general legal framework for the development of radio broadcasting in Guatemala and regulates the use and exploitation of the radio spectrum, and the proceeding for the allocation of radio frequencies” [para. 45]. According to the bill, radio frequencies will always be allocated to the highest bidder in a public auction.
On November 17th, 2011, the “Asociación Sobrevivencia Cultural” (Cultural Survival Association) presented an unconstitutionality action, before the Court of Constitutionality of Guatemala, against the provisions of the LGT that regulated the allocation of radiofrequencies, claiming that under these regulations the indigenous peoples of Guatemala will never have “real access to the radio spectrum, since [the law] doesn’t take into account the poverty situation of this group” [para. 50]. The Court of Constitutionality of Guatemala ruled that the contested provisions were constitutional. “Nonetheless, this court urged Congress to pass a bill regulating the use and exploitation of frequency bands of the radio spectrum by indigenous peoples” [para. 50].
“Guatemala is a country in which a variety of peoples coexist amongst them the Mayan, Xinka, and Garifuna. As stated by the national census of 2018, 43.6% of the population of Guatemala self identifies as indigenous. However, according to estimates made by the Mayan, Garifuna, and Xinka peoples themselves, indigenous peoples represent 65% of the population” [para. 35].
80% of the indigenous population is considered poor, and the rate of extreme poverty in this group is three times higher when compared to the non-indigenous population. “Indigenous people have a high illiteracy rate. Around 50% of indigenous children don’t go to school […] and most of the indigenous population doesn’t have access to basic healthcare” [para. 36].
In the country there are 424 licensed FM radio stations, and 90 AM radio stations. Only one of them, Radio Qawinagel, is an indigenous community radio station. “On the other hand, there are many community-operated radio stations by indigenous peoples that don’t have a State-issued license, which belong to the indigenous communities Maya Kaqchikel de Sumpango, Maya Achí de San Miguel Chicaj, Maya Mam de Cajolá and Maya Mam de Todos Santos Cuchumatán” [para. 44]. These stations are funded by the members of the peoples they work for, through contributions or voluntary work.
Between November 2010 and May 2021, “90 people have been convicted for the crime of theft for using the radio broadcasting spectrum without a license” [para. 57]. During this period, 206 search, inspection, register, and seizure diligences “were conducted on unauthorized radio stations, among them indigenous community stations” [para. 57]. On June 28th, 2006, the Public Prosecutor’s Office requested from a judge a warrant for “the search, inspection, register, and seizure of evidence against Radio Ixchel, which was operated by the indigenous people Maya Kaqchikel, from Sumpango” [para. 58].
After obtaining the warrant, the Public Prosecutor’s Office confiscated, on July 7th, 2006, several pieces of equipment used for radio broadcasting. Also, a criminal proceeding for the crime of theft was brought against Anselmo Xunic Cabrera, a member of the Kaqchikel people, and the then radio station voluntary coordinator. In August 2007, “a first instance judge found that the accusations had no merits, since there were no rational elements linking him to the case” [para. 59].
Radio Ixchel had to suspend radio broadcasting during 7 months because of the seizure of its equipment. “The members of the community had to gather funds for buying new equipment to broadcast again. On the other hand, members of the community were reluctant to participate in the radio station out of fear of being detained” [para. 60].
“On May 8, 2012, the national police and the Public Prosecutor’s Office conducted a search in community radio station Uqul Tinamit (The Voice of the People) operated by the indigenous people Maya Achí, from the town of San Miguel Chicaj, in Baja Verapaz” [para. 61]. During the search, equipment was confiscated and Mr. Bryan Cristhofer Espinoza Ixpata was arrested. He was convicted on January 15th, 2013, for the crime of theft for illegally exploiting a radio frequency. On April 20th, 2016, the national police seized, again, different pieces of equipment in the community radio station Uqul Tinamit. After this, the station stopped broadcasting.
On April 3rd, 2020, the Inter-American Commission of Human Rights (IACHR) submitted to the Inter-American Court of Human Rights (IACtHR) the case of Indigenous People Maya Kaqchikel de Sumpango and others v. Guatemala. According to the Commission, the State of Guatemala breached articles 13, 24, and 26 of the American Convention of Human Rights (ACHR), for the impossibility of four indigenous communities (Maya Kaqchikel de Sumpango, Maya Achí de San Miguel Chicaj, Maya Mam de Cajolá, and Maya Mam de Todos Santos Cuchumatán) to “exercis[e] their right to freedom of expression and their cultural rights through community radio, due to the existence of legal obstacles to the access of radio frequencies and an alleged policy of criminalization of unlicensed community broadcasting” [para. 1].
The Inter-American Court of Human Rights examined two issues regarding freedom of expression. In the first, the Court analyzed whether the current legal framework for assigning radio frequencies in Guatemala discriminates against the indigenous peoples Maya Kaqchikel de Sumpango, Maya Achí de San Miguel Chicaj, Maya Mam de Cajolá, and Maya Mam de Todos Santos Cuchumatán, limiting their access to media and violating their right to freedom of expression. In the second place, the Court had to decide whether the criminal measures imposed upon members of different indigenous peoples and their radio stations, for broadcasting without a license, violated the freedom of expression of the indigenous peoples they belonged to.
The Commission argued that the General Bill of Telecommunications discriminates against indigenous peoples by stating that “the only criterion for the allocation of radio frequencies is the financial bid […] Said criterion is applied to assign all frequencies in Guatemala, without consideration of the fact that most of the indigenous people in the country are in a structural condition of social exclusion, discrimination, and poverty” [para. 64]. For the IACHR, “the State has the duty of adopting and implementing affirmative measures whose end is to revert or change the disadvantageous conditions in which indigenous peoples are and grant them equal conditions to access the radio spectrum” [para. 65].
Likewise, the Commission also argued that the classification of conducts that criminalize violations against radio broadcasting regulations harms freedom of expression and breaches article 13.2 of the ACHR, since the measures are not proportionate or necessary, and impede “in an absolute manner the exercise of freedom of expressions of the communities” [para. 67].
For its part, the State of Guatemala argued that the criterion for the allocation of radio frequencies doesn’t restrict freedom of expression, since said criterion was determined previously by a law that is both clear and precise. Similarly, the State argued that the law guarantees predictability and legal certainty as it fosters “transparent proceedings respectful of due process” [para. 71]. The law, according to the State, also ensures profitability and media independence.
For the State, the criminal measures enacted against those who violated radio broadcasting regulations are aimed at protecting the usufruct of those who have previously acquired radio frequencies through due process. The State mentioned that the Public Prosecutor’s Office “doesn’t make any distinction regarding the group or social sector to which people belong to” [para. 74].
The Inter-American Court of Human Rights began its considerations by stating several regional standards regarding freedom of expression, issued by the IACtHR itself. For the Court, as argued in The Last Temptation of Christ v. Chile and Urrutia Laubreaux v. Chile, “the expression and dissemination of thoughts and ideas are indiscernible, and as a consequence any restriction on the possibility of such communications represents directly, and in the same measure, a limit to the right of freedom of expression” [para. 81].
The IACtHR also stated, in line with the precedent set in Granier (Radio Caracas Television) v. Venezuela, that freedom of expression can be affected by the existence of monopolies or oligopolies in media. Thus, it is the duty of the State to “avoid concentration and promote pluralism of voices, opinions, and visions” [para. 86]. By this logic, “the State must democratize access to media, guarantee diversity and pluralism, and encourage the existence of commercial, public, and community media services” [para. 86].
In this light, the IACtHR concludes that the “States are internationally obliged to establish laws and public policies that democratize access and guarantee pluralism in media in different areas, such as the press, radio, and television” [para. 91]. This obligation, the Court says, necessarily grants indigenous peoples the right of being included in different media, considering “the relevance of media to the aforementioned peoples” [para. 92] and the fact that most of the inhabitants of Guatemala are indigenous.
The Court noted that community radio in Guatemala has served an essential role in “the preservation, dissemination, and development of indigenous cultures and languages” [para. 109]. Equally so, radio has fulfilled an important duty for the dissemination of vital information to indigenous peoples during the COVID-19 pandemic. For this tribunal, freedom of expression has also an instrumental value in guaranteeing the participation in cultural life (as laid out in article 26 of the ACHR) of indigenous peoples: access to community radio by indigenous peoples are “indispensable for promoting identity, language, culture, self-representation, and human and collective rights” [para. 128].
The IACtHR also analyzed the different regulations in Latin America regarding the use and allocation of radio frequencies. Countries like “Bolivia, Brazil, Chile, Colombia, Ecuador, El Salvador, Honduras, Mexico, Paraguay, Peru, Uruguay have legally recognized the existence of community media. Regarding broadcasting, at least six countries have allocations for community media: Uruguay, with at least one third for AM, FM, and television; Mexico, with 10 percent of its AM and FM bands; Chile, with a 5% in FM radio; and Bolivia, with 17% for community media and 17% for indigenous peoples, intercultural communities, and afrobolivians, in FM and AM radio, and analogous television” [para. 115].
Considering this context, the Court then proceeded to analyze whether the LGT discriminates against indigenous peoples, in their right to access media and their freedom of expression. The Court reiterated that the only criterion in this law, for the allocation of radio frequencies is the best financial bid. “The Court considers that this criterion, although apparently neutral, extremely restricts the possibilities of accessing the radio spectrum. Rather than promoting voices’ plurality, through mechanisms that guarantee diversity in media, [the LGT] creates, indirectly, space for one kind of radio: commercial radio for profit” [para. 142].
The IACtHR noted there is strong evidence for the existence of an oligopoly in Guatemala regarding the property of media and that most of the indigenous communities in the country “due to their conditions of poverty, social exclusion, and discrimination, don’t have the technical and economic means to compete on an equal footing with commercial radio stations, which the LGT indirectly favors. Thus, Guatemala should have adopted every necessary measure to remedy the disadvantageous factors that affect indigenous peoples, in order to grant them access to the radio spectrum” [para. 147].
Due to the fact that most of the indigenous peoples of the country live in a structural condition of poverty that doesn’t allow them to cover the necessary expenses to acquire a radio broadcasting license, the Court found that the current regulation regarding the use of the radio spectrum “encourages indirect discrimination, and is an impediment to the exercise of freedom of expression, since it only takes into account the best financial offer as the sole criterion for the allocation of radio frequencies and [the State] hasn’t adopted any measures, like the reservation of frequency bands, in order to allow indigenous people to establish and operate their own media outlets” [para. 149].
The Court argued that the applicants, specifically, were excluded from participating in democratic life and marginalized from expressing their opinions, interests, and needs, because the current legal framework in the LGT established a de facto prohibition for indigenous people regarding the possibility of creating media outlets. The IACtHR found that the aforementioned regulations regarding radio frequency allocation in Guatemala created an anti-conventional restriction that breached articles 13 and 26 of the ACHR.
As for the criminal measures and sanctions that were issued against two community radios, Radio Ixchel y la Radio “The Voice of the People”, the Court started its analysis by reiterating the precedent laid out in the case of Herrera Ulloa v. Costa Rica. In it, the IACtHR argued that any limitations on freedom of expression “must be necessary in a democratic society, proportionate and ideal in achieving the objectives it pursues” [para. 158]. The Court also mentions that restrictions on freedom of expression are exceptional in nature.
With this in mind, the Court applies a three-part test to the criminal measures issued by the State against the radio stations mentioned and the people working there. According to this test, any limitation on freedom of expression, to be considered valid, must “(i) be included in a law; (ii) pursue a legitimate interest as set in the Convention (‘respect for the reputations of others’ or ‘national security, public order, or public health or morality’) and it must be (iii) necessary in a democratic society” [para. 160].
The IACtHR argued that the application of the crime of theft against those operating radio stations without licenses didn’t fulfill any of the criteria previously outlined. For the Court the crime of theft can only happen when there is appropriation, and not a mere use, of a good. Thus, the Court found that the requirement of strict legality is not fulfilled since there’s no “clear and precise classification of the criminal conduct for the use of the radio spectrum without official license” [para. 165]. The Court concludes that the State was applying a criminal conduct analogically which is contrary to the American Convention.
The Court also considered that “the criminalization of those that operate community radio station doesn’t respond to any of the legitimate interests […], on the contrary, search and seizures along with the criminal proceedings, affected the rights of the indigenous peoples to freedom of expression and participation in cultural life” [para. 166]. Equally so, in analyzing the third condition of the test, the IACtHR concluded that the criminalization of Radio Ixchel and Radio “The Voice of the People”, and the seizure of equipment, were far from ideal or necessary measures. “The State could have employed less harmful means, than those allowed by criminal law, such as administrative sanctions and proceedings, to pursue the same ends, that would affect in a lesser manner indigenous communities” [para. 169].
The IACtHR also noted that the actions undertaken by the State against the Maya Kaqchikel and Achí peoples, “derived from an illegal situation fostered indirectly by the State itself, that sacrificed in absolute manner freedom of expression” [para. 170]. Thus, the Court considered that Guatemala violated article 13.2 of the ACHR since there was a disproportionate criminal persecution that excessively affected the freedom of expression of the aforementioned peoples.
For reparations, The Court ordered the State of Guatemala to allow the four indigenous communities, who acted as applicants in this case, to operate freely their community radio stations, without any interference or criminal persecution, in less than a year.
Similarly, the State also has to, within a reasonable timeframe, revise its national policies and regulations in order to “(i) recognize community radio as differentiated media outlets, especially indigenous community radio stations, (ii) regulate their functioning, establishing a simple procedure for obtaining licenses, and (iii) reserve in favor of indigenous communities radio stations a sufficient and proper part of its radio spectrum” [para. 196].
The IACtHR ordered the State to immediately refrain from any criminal prosecution for “the crime of theft against any individual operating indigenous community radio stations, and any subsequent measure of search against these stations, or seizure of their transmission equipment, at least until there are legal mechanisms that guarantee access to the radio spectrum in favor of indigenous communities” [para. 202].
The State was also ordered to “eliminate all issued convictions, and their consequences, against members of indigenous communities, regarding the use of the radio spectrum” [para. 203].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision by the IACtHR expands freedom of expression by recognizing that the current regulatory framework for the allocation of radio frequencies is discriminatory and forbids, de facto, the participation of indigenous communities. In doing so, along with the remedies issued by the Court, this regional tribunal strengthens pluralism and diversity in Guatemala´s media, fostering an environment in which representation is more egalitarian, and democratic participation is more robust. Likewise, the fact that the Court found that the criminal measures issued against two indigenous communities, violated their freedom of expression, provides a better climate for the exercise of this right by members of historically and structurally discriminated groups.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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