Content Regulation / Censorship, Licensing / Media Regulation
Editorial Perfil S.A. v. Estado Nacional
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The Mexican Supreme Court held that the Mexican Department of Health (DOH) violated the Political Constitution of the United Mexican States when it 1) denied a community radio station the resources to operate, and 2) failed to promote human rights, both those of the station as a member of the media and of the community as receptors of the relevant departmental information.
The DOH unequally and arbitrarily distributed advertising funds, resulting in an indirect and unjustifiable restriction on the freedom of speech. The Court ordered the DOH to include the radio station in its distribution of state advertisements to facilitate outreach to the native communities which are an integral but underserved part of the national audience.
The National Department of Health (Secretaría de Salud) denied the request of a community radio station to be included in the distribution of state advertising. The department stated that its rejection was based on the fact that the limited reach of the radio station did not meet the department’s criteria that information receive wide national distribution and have a high impact. The station, Radio Nandía, then brought a case against the department, arguing that its decision was unconstitutional and unjustifiably restrictive: a violation of the right to equality under the Political Constitution of the United Mexican States, as well as the right to freedom of expression and the right to impart and receive information. Mex., C.P. Article 1; Mex., C.P. Article 6; Mex., C.P. Article 7; ICCPR Article 19; ACHR Article 13; Declaration of Principles on Freedom of Expression Principle 13.
Minister Olga María Del Carmen Sánchez Corder spoke for the Court. The Supreme Court understood that the unequal and arbitrary distribution on state advertising by the Department of Health constituted an indirect restriction on the freedom of expression and the right to impart and receive information. The character of a cultural and non-profit organization such as the radio station could not be argued as bases for the denial of participation in the state advertisement program. The fact that the community radio station has a limited reach does not mean that the Department of Health could not satisfy its goal of delivering the information to the nation, as reaching all members of the population equally must be the purpose of the communications. The department should have considered it a distinct advantage that the radio station reached communities that are insulated from the influence of bigger organizations due to their culture, language, or geographical location. Furthermore, community radio stations tend to work toward the well-being of their communities, informing them about public services essential for their subsistence or improvement; a vital fact concerning the community members’ right to health.
Because reaching the greatest number of individuals and promoting the circulation of information are pivotal to democracy, the department’s denial of the application resulted in discrimination of the radio station and the communities to which it tended. The state violated its duties under the Political Constitution of the United Mexican States by: 1. denying the community radio station the resources to operate; and 2. failing to promote human rights, both those of the station as a member of the media and of the community as receptors of the relevant departmental information. In short, department based the denial to Radio Nandía on unjustified criteria, because the real reach that the station would have to native communities would make up for the station’s limited geographical scope, helping information on government programs reach a wholly national audience.
Thus, the Court revoked the ruling under appeal, and mandated that the Department of Health review its decision and incorporate the station, Radio Nandía, in the distribution of state advertisements.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision was in accordance with the Supreme Court’s ruling on a similar case decided months earlier, commonly known as the La Voladora case. Mex., Sup., 248/2011 (July 13, 2011).
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