Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
Closed Expands Expression
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The Inter-American Court of Human Rights (IACtHR) found Peru responsible for the violation of the right to freedom of expression in respect of Baruch Ivcher Bronstein. Ivcher Bronstein was the main shareholder of different media companies, among them a TV channel that hosted a show very critical of the government. To make him lose control of that company he was deliberately deprived of his citizenship by naturalization. The IACtHR considered that these acts of intimidation indirectly restricted the free circulation of news, ideas, and information. For the IACtHR freedom of expression must be guaranteed both on its individual and its social dimensions simultaneously. Moreover, the Court considers that the media are an essential way of sharing information and opinions in a democratic society. As a result, it ordered the State to provide the conditions that would enable Baruch Ivcher Bronstein to take the necessary steps to recover his rights as a shareholder of the channel.
Baruch Ivcher Bronstein, an Israeli naturalized Peruvian in 1984, was by 1986 the majority shareholder of a media company that owned Channel 2: Frecuencia Latina.
The Peruvian legislation in force in 1997 stated that the owner (or the majoritarian shareholder) of telecommunications media companies had to be a Peruvian national. At that time, Mr. Ivcher Bronstein was president and director of the company’s board and had the power to make programming editorial decisions for Channel 2.
In April 1997, the channel broadcasted investigative reports on alleged abuses, tortures, and acts of corruption carried out by the National Intelligence Service of Alberto Fujimori’s government. As a result of those reports, Ivcher Bronstein was subject to different acts of intimidation such as: “being paid visits to the Channel’s offices by the Fiscal and Customs Police and other people, who recommended that he changed the program’s editorial line; having helicopters allegedly from the army flying over his factory Productos Paraíso del Perú; and the opening of a proceeding against him by the Fiscal and Customs Police” [p. 33-34].
Furthermore, the Executive issued an executive order regulating the Nationality Act No. 26574 and establishing the possibility of revoking someone’s naturalization if they committed “crimes against the State and National Defense”, “Public Safety”, “terrorism and treason”, for committing “acts that could jeopardize National Security and State Interests”, for having “irregularly obtained the naturalization”, for “affecting Peru’s international relations with other States or International Organizations”, or for “reasons that affect public interest and the national interest”.
Following the channel’s announcement of the broadcasting of a particularly critical report, against the government’s will, Mr. Ivcher Bronstein’s nationality was revoked on July 11, 1997. Consequently, he was immediately suspended as a majoritarian shareholder of the television channel and his appointment as director was withdrawn. In addition, the journalists of the show weren’t allowed into the channel and the editorial line of the show was modified.
All internal remedies presented against these decisions were dismissed.
For the IACrtHR, the aforementioned situation was an indirect restriction to the right to freedom of expression, as well as a violation of the rights to nationality, judicial guarantees, judicial protection, and private property. Therefore, it ordered that the rights of the victim be reestablished. This case analysis will only address the infringement of the right of freedom of expression.
The Inter-American Court of Human Rights (IACtHR) had to decide whether the revocation of the nationality of Mr. Ivcher Bronstein, as a result of the allegations made by a journalistic TV show about acts of torture and corruption carried out by the National Intelligence Service, violated among others, the right to freedom of expression under Article 13 of the American Convention of Human Rights (ACHR).
The IACtHR concluded that the State violated the applicant’s right to freedom of thought and expression. To substantiate its assertion, the Court explained that freedom of expression entails two dimensions of equal importance, that must be simultaneously guaranteed: the individual dimension, protects the right to speak or write, but it also includes, inseparably, the right to any appropriate method to disseminate ideas or information; the social dimension, recognizes freedom of speech as a mean for the exchange of ideas and everyone’s right to know opinions, reports, and news from others. The Court made clear that expressing and sharing thoughts and information are indivisible, in a way that any restriction to disseminate information entails a corresponding restriction to free speech [para. 147].
The Court highlighted that the importance of the right to freedom of expression “is further underlined if we examine the role that the media plays in a democratic society [as] it is a true instrument of freedom of expression and not a way of restricting it; consequently, it is vital that it can gather the most diverse information and opinions” [par. 149]. Likewise, it stated that it’s essential that the journalists who work in the media “should enjoy the necessary protection and independence to exercise their functions comprehensively, because it is they who keep society informed, and this is an indispensable requirement to enable society to enjoy full freedom” [p. 153]. In this respect, the Court recalled some of its previous cases as well as the European Court’s case law to reinforce the idea that there’s a very narrow margin to any restriction on political or public interest discussions.
The Court stated that the analysis of a specific restriction on freedom of expression can’t be isolated, it must rather include all facts, circumstances, and context [para. 154].
In the instant case, the Court found enough evidence to affirm that Mr. Ivcher Bronstein was subject to threats by different public officials based on the editorial line of the channel he directed. In this context, the Court considered that arbitrarily revoking his nationality “was an indirect means of restricting his freedom of expression, as well as that of the journalists who worked and investigated” for the show [par. 162]. For the Court, having his nationality revoked resulted in the withdrawal of his rights as a majoritarian shareholder of the channel and consequently in a shift in the editorial line of the show.
The IACtHR considered that by forcing the disengagement of Mr. Ivcher Bronstein from the control of the channel and the exclusion of the journalists from the show “the State not only restricted their right to circulate news, ideas and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and develop fully in a democratic society” [para. 163].
For these reasons, the Court ordered the State to provide the conditions that would enable Baruch Ivcher Bronstein to take the necessary steps to recover his rights as a shareholder of the channel.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision adopted by the Inter-American Court of Human Rights (IACtHR) takes a significant step in the advancement of human rights, by incorporating and applying the concept of indirect restrictions under article 13.3 of the ACHR. The Court considered that revoking Mr. Ivcher Bronstein’s nationality and the obstacle it implied to exercise his property rights on the channel, was an indirect restriction to his right of freedom of expression. This is the first decision in which the IACtHR finds that a state’s action that is in appearance legitimate can have an illegitimate result if its final goal is to violate the right to freedom of expression protected by article 13.
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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