Licensing / Media Regulation, Political Expression
Violation of the Protection of Communications Secrets Act
Korea, Republic of
Closed Expands Expression
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There is a Spanish language version of this case available. View Spanish version
The Inter-American Commission on Human Rights found that discriminatory treatment of two Chilean radio stations by the mayor of the Island of Melinka violated the affected radio station’s right to freedom of expression and non-discrimination. From September 1999 and through 2000, the municipality of the Island of Melinka prevented two radio stations from operating by cutting their energy supplies and interfering with their transmission. The mayor of the island justified the municipality’s actions by arguing that the radio stations misinformed the public and caused social unrest.However, the Inter-American Court held that the differentiated treatment of the radio stations was arbitrary and violated their right to freedom of expression.
Mr. Miguel Ángel Millar is the director of the radio station Estrella del Mar on the Island of Melinka in Chile. The station had a “social-pastoral” focus [par. 24]
From September 1999 and throughout the year 2000, in the middle of the municipal election campaign, Radio Estrella del Mar employees were subjected to acts of intimidation and harassment. For example, the radio station’s transmission was interfered with when the operation of an unlicensed television channel was facilitated. Millar’s denounced these acts, which lead to the closure of the television channel. As a consequence, the radio producer received threats of physical violence. Afterwards, two days before the local elections, the cable that allowed the radio station to transmit was cut.
The town mayor addressed the situation and declared, in an interview, that Radio Estrella del Mar “is not providing the services as it should, it’s not helping unify and create social harmony but throwing things so that it breaks […] if you ask a neighbor, that you find on the street, what Radio Estrella del Mar does in Melinka […] they will tell you, divide people, create confusion, never find the truth and do good things” [par. 28]. Additionally, the mayor said he had put into operation a television channel because he considered Radio Estrella del Mar’s coverage of the election campaign was biased because it did not interview any members of his political party.
Additionally, the Island of Melinka has two energy supply systems: a paying system with limited hours that provides the service to the population for a price, and a free system with extended hours that supplies electricity to local utilities, State institutions and local communications outlets. However, in 1999, by order of the municipal authority, Radio Estrella del Mar’s free service was discontinued and it became the only media outlet in the paying system, that is, it had to pay for the service with limited hours.
In the year 2000, Miguel Angel Millar petitioned the Mayor to reconnect Radio Estrella del Mar’s free energy service with extended hours. The municipality did not answer his petition and Mr. Millar filed a protection remedy before the Court of Appeals. Mr. Millar sought the declaration that the Municipality’s decision was illegal and arbitrary, and, therefore, Radio Estrella del Mar be allowed to access the extended hour energy supply system. He stated, “although the mayor said this decision was founded on technical reasons determined by the staff responsible for operating the electric equipment, the staff declared at all times that the decision had been made and communicated by the Mayor himself and they were unaware of the reasons behind it” [par. 32]
The Court of Appeals, at the first instance, rejected the action and declared the municipality’s decision was taken “while carrying out its duties and, therefore, in exercise of its exclusive powers. Also, it is inferred that the radio station’s situation was a product of the municipality’s liberality” [par. 34]. This decision was confirmed by the Supreme Court of Justice of Chile.
The Inter-American Commission on Human Rights heard the case and concluded that the differentiated treatment Radio Estrella del Mar suffered, in reference to its energy supply, did not seek a legitimate purpose and was therefore discriminatory and arbitrary. As a consequence, it found the State of Chile had violated articles 24, 13.1 and 13.3 of the American Convention on Human Rights.
The Inter-American Commission on Human Rights (IACHR) had to resolve “whether submitting Radio Estrella del Mar to an energy supply regime that was different than the system that applied to the other communication outlets in Melinka was a measure that was compatible with the State’s international obligations or, to the contrary, if it violated the rights to freedom of expression and/or equality before the law of the alleged victims in this case” [par. 49].
The IACHR stated that freedom of expression includes both a persons right to express his or her thoughts as well as the right to seek, receive and impart ideas and information of all type. It reaffirmed that freedom of expression has two dimensions: an individual one, referring to the right every person has to express his or herself; and a social dimension, that refers to the right of society to seek and receive different ideas and information.
The IACHR indicated it was clear that decisions over the control and distribution of public utilities that are necessary for the operation of communication outlets have an impact on the right to freedom of expression. Furthermore, this impacts the two dimensions of freedom of expression. That is, it affects “the right [of] people that use the services [they] have to express themselves freely, and the right of all of society to receive different ideas and opinions” [par. 52]. In the Commission’s opinion, the decision regarding the provision of public utilities implies that State authorities have ultimate decision power over the voices that can be listened to by the community.
In this regard, the IACHR emphasized the need that decisions concerning the distribution of resources that are necessary for the operation of media outlets must comply with a minimum set of rules that “respect the principles of public interest, transparency, accountability and non-discrimination. Consequently, in cases like this one, the decision that orders the distribution of limited public utilities must: (i) obey predetermined, objective and reasonable criteria, (ii) be properly and sufficiently reasoned, and (iii) be processed through transparent and accessible procedures” [par. 54]. Furthermore, the authorities, in fulfillment of these requirements, must adequately and completely explain the reasons for their decision to distribute public goods or services. Hence, this prevents the arbitrary use of the State authorities’ powers to decide and control.
It further indicated that in accordance with Inter-American jurisprudence and doctrine, there are specific standards for evaluating whether a State decision involving differentiated treatment violates the right to equality. First, the IACHR stated it is necessary to establish if in reality there truly is a differentiated treatment of ”a person or groups of persons that are in the same position” [par. 63]. Second, it is necessary to determine whether there are enough reasons to justify the differentiated treatment [par. 67]. On this point, it indicated an equality analysis can be more or less stringent depending on the criteria used to determine the differentiation and the rights involved. When it involves freedom of expression, the analysis is especially strict.
Finally, the IACHR indicated that in cases such as the one under scrutiny, it is necessary to reject any form of power deviation that is directed to restricting freedom of expression through the use of mechanisms that give the appearance of legitimacy [par. 72].
In its analysis of the case, the IACHR indicated that there was a differentiated treatment concerning access to electricity for media outlets, which was fundamental for their operation on the Island of Melinka, because Radio Estrella del Mar what’s the only communication outlet that accessed its electricity on restricted hours and paying a price.
To assess whether the differentiated treatment was justified, the IACHR analyzed if the other media outlets were in similar circumstances. Then, it inquired whether the differentiated treatment decision was reasoned and based on criteria that were established previously in a clear and objective manner. Furthermore, it inquired whether the decision was adopted following public and transparent procedures and if it sought a legitimate objective. Finally, it reviewed whether the decision was necessary and proportionate to achieving that objective.
First, the Commission indicated it appeared the decision was not based on criteria that had been previously established in a clear and objective manner. It further stated the State did not prove the procedure used to reach the differentiated treatment decision was carried out in a transparent way. Furthermore, it indicated the decision on the distribution of the electricity that was supplied to the media outlets was a “liberality” of the mayor in exercise of his broad discretionary powers [par. 85]. It concluded “the decision to exclude Radio Estrella del Mar from the electricity system that applied to all the other communication outlets and to ensure it remained excluded was the result of the mere will of a public official and was characterized by a complete lack of transparency, reasoning and external control” [par. 85]
In addition, the IACHR declared there were no arguments that justified the differentiated treatment of Radio Estrella del Mar. For the IACHR, the absence of objective criteria for the differentiated treatment and the mayor’s statements “give rise to serious arbitrariness suspicions” [par. 91]
The IACHR stated it was possible to reasonably conclude from the expressions issued by the mayor that “his negative opinion on the people that worked in the radio station and its editorial position could have affected the decision under scrutiny and harmed the right to freedom of expression of the alleged victims of discrimination” [par. 98].
In conclusion, the Commission found the differentiated treatment given to Radio Estrella del Mar for the supply of electricity did not seek a legitimate objective and was, therefore, discriminatory and arbitrary. For this reason, the Commission declared the State violated articles 24, 13.1 and 13.3 of the ACHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Inter-American Commission on Human Rights reaffirmed it is evident that freedom of expression is affected by decisions involving the control and distribution of the public utilities that media outlets need to operate. In this decision, the Commission expanded the scope of the right to freedom of expression when it established clear standards that must be taken into account in adopting any decision involving the distribution of public goods or resources that might interfere with the operation of communication outlets. Once again, the Commission emphasized the importance of the media in democratic societies and the need to guarantee the existence of an environment free of arbitrary restrictions.
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