Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or “the Commission”) held that Cameroon violated Article 9 (Right to Receive Information and Free Expression) of the African Charter on Human and Peoples’ Rights (“the Charter”). The case concerned the state monopoly that existed in Cameroon until 1990 and the lack of fair procedures as well as lack of independence of the authority responsible for issuing broadcasting licenses in accordance with Law No. 90/052 aimed at liberalizing broadcasting. In addition, the case relates to the arbitrary denial of a broadcasting license and the seizure of radio station equipment. While the Commission refrained from addressing the allegations in relation to the previously existent state monopoly, it reasoned with regards to the licensing process that the Minister of Communication could not be understood as an independent regulatory body since as part of the executive branch, it does not enjoy the required protection from political interference. Similarly, the Commission considered that the lack of sufficient protection against arbitrariness, together with the practice of the Minister of issuing informal authorizations not provided in the law, did not comply with the level of precision required for a licensing process to be considered “provided by law” as required for such interference. Furthermore, for the same reasons, the Commission found that the victim was arbitrarily denied access to the premises of his radio station and that the licensing processes conducted by the Minister were neither fair nor transparent and, as such, constituted an impermissible prior restraint. In light of all the facts, the ACmHPR found that the State violated Articles 1, 2, 9, and 14 of the African Charter.
The victim in this case is Pius Njaw Noumeni, he is a journalist, media freedom advocate and head of Le Messager Group which includes Le Messager newspaper and the satirical sister Le Messager Popoli.
The communication describes that until the adoption of Law No. 90/052 on Freedom of Social Communication (“Law 1990”), the State of Cameroon operated a monopoly on radio and television broadcasting. However, radio stations operated in a regulatory vacuum until the adoption of the Decree No. 2000/158 Establishing the Conditions and Modalities for the Creation and Operation of Private Audiovisual Communication Enterprises (Decree 2000). Le Messager’s radio station, Radio Sawa, which had operated in a regulatory vacuum since November 1999, suspended broadcasting after Decree 2000 was issued with the aim to acquire better equipment.
On 29 October 2002, Le Messager submitted its application for a radio license to the Ministry of Communication. In January 2003, Le Messager informed the Ministry that it would change its radio station’s name to Freedom FM and requested that it be assigned a different frequency since the previous one had already been assigned to another radio station. In February of the same year, several technicians from the Ministry of Communication inspected the radio station for about four hours.
When the six-month deadline for deciding on its application expired, the Ministry of Communication responded by stating that the application was still under consideration. To that date, Le Messager had already announced on 15 May 2003 that it would start broadcasting from Freedom FM on 24 May that year. However, a day before that date, police and gendarmerie officers, who claimed to be acting in accordance with an order from the Ministry of Communication prohibiting Freedom FM, took over Freedom FM’s building and sealed its studios and broadcasting rooms. The complainant indicated that as a result of such actions the radio equipment of an approximate value of 60 million CFA francs (110,000 US dollars) located in the sealed rooms were exposed to poor storage conditions risking damage.
Weeks later, the Ministry of Communication informed Le Messager that the radio market in Douala was saturated and that “City FM” would have to broadcast from another location outside the city. Le Messager proposed a new location, but it received no response to this proposal nor a decision on their license application. Similarly, the victim was denied access to the seized radio equipment. In this regard, the Complainant pointed out that it was common for the Minister to assign frequencies to those he considers politically harmless to the government.
According to the Complainant, the Minister of Communication processed these applications “in an arbitrary, illegal and discriminatory manner” [para. 14]. For instance, it was pointed out that the 2001 license application of the Catholic Church’s Radio Veritas was filed amid speculation that Cardinal Christian Tumi of Douala would run for president. It was not until November 2003 that the radio station was authorized to operate only after the Cardinal publicly stated that he would not run. In addition, on 27 May 2003, the Minister of Communications issued Decision No. 012, which effectively allowed the operation of 14 radio stations with the allocation of the same number of frequencies but without providing a proper license. This informal authorization put such stations in a situation of uncertainty since the authorization could be withdrawn at any time.
The victim took legal action demanding that his equipment be returned to him. However, on 26 January 2004, after the first instance hearing had been postponed 19 times due to the State’s failure to appear, the Court of First Instance of Douala declared that “it was not competent to decide on the case” as argued by the Ministry of Communications in its intervention as an interested party [para. 17]. The victim appealed the decision, which was only notified in writting in mid-May 2004. On 11 November 2003, even while the victim’s action had yet to be decided by the Court of First Instance of Douala, the Minister of Communication “brought a criminal action against the Victim and Le Messager for having “created and operated” an unlicensed broadcasting company” [para. 18].
On 28 June 2004, the Commission received the Complainant’s communication together with a request for provisional measures “to ensure that no irreparable damage is done to the equipment of Le Messager” [para. 22]. The parties initially reached an amicable settlement agreement that was signed in June 2005. However, in April 2007, dissatisfied with the progress of the settlement agreement, the Complainant requested the Commission to resume the Communication procedure.
In this case, in relation to freedom of expression the ACmHPR had to decide, first, whether the state monopoly that existed in Cameroon until 1990 violated Article 9 of the Charter and, second, whether the process and ultimately denial of the victim’s broadcasting license application was compatible with the Charter and internationally recognized human rights standards.
The Commission began its analysis on the freedom of expression allegations by clarifying that it would not refer to the state’s monopoly on broadcasting since such situation ceased to exist prior to the submission of the communication with the adoption of Law 1990. However, it recalled Principle V of its Declaration on Freedom of Expression, which provides that “state monopoly over broadcasting is not compatible with the right to freedom of expression” [para. 129].
As for the lack of independence of the licensing authority, the Complainant submitted that the Minister of Communication “is not independent and impartial, and that the licensing decision is arbitrary and politically motivated” [para. 132]. In this regard, the Commission considered that the Minister of Communication cannot be understood as an independent regulatory body in terms of Principle VII of the Declaration on Freedom of Expression in Africa, since as part of the executive power, it does not enjoy the required protection from political interference.
Before addressing whether the rules and procedures were established by law as required for a limitation to the rights under the Charter, the Commission relied on the European Court of Human Right’s jurisprudence to conclude that a licensing process is indeed a restriction. Considering the “prescribed by law” element as interpreted by the ECtHR in the context of a licensing process in Meltex v. Armenia, the Commission examined whether “the interference has a basis in domestic law and if it is formulated with sufficient precision to foresee the consequences which a given action may entail” as well as whether “domestic law affords legal protection against arbitrary interference by the licensing authority, including the proper reasoning of the decisions to deny a broadcasting license” [para. 142].
The Commission noted that Article 12 of Decree 2000 did not include any substantive criteria for the approval of the license. In fact, there is no indication in law as per the requirements considered by the relevant authorities once they receive the application dossier. The ACmHPR also noted that there is not a requirement for the Minister to follow the recommendation of the Technical Committee or the Conseil National de la Communication, which previously assessed the application. Moreover, there is no requirement for the Minister to finalize his decision regardless of whether it is opposed or not to the mentioned bodies. Similarly, the Commission pointed out that the practice of issuing informal authorizations “have no basis in domestic law and do not allow applicants for a licence to foresee, to a degree that is reasonable, the consequences of their applications” [para. 146].
In light of the above, the Commission found that the lack of sufficient protection against arbitrariness, the broad discretion afforded to the Minister, and his practice of issuing informal authorizations not provided by law, did not comply with the level of precision required for a licensing process to be considered “provided by law”. Furthermore, for the same reasons, the Commission found that the victim was arbitrarily denied access to the premises of his radio station and that the licensing processes conducted by the Minister were not fair nor transparent and as such constituted an impermissible prior restraint to the right to freedom of expression. With respect to the remaining allegations, the ACmHPR found that the State violated Articles 1, 2, 9, and 14 of the African Charter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression as it applies international standards to safeguard the right to freedom of expression in the context of a broadcasting licensing process. The decision stresses two essential elements for the protection of freedom of expression: first, the State’s obligation to establish an independent broadcasting licensing authority adequately protected from political interference and, second, that domestic law restricting human rights must be formulated with sufficient precision and afford sufficient guarantees from arbitrariness from the authority. Lastly, the Commission rightly characterizes the arbitrary denial of a license in this case as an impermissible prior restraint under Article 9 of the Charter.
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