37
political rights, media outlets are mechanisms that enable the exercise of the fundamental right to
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freedom of expression by those who use the outlet to disseminate ideas and information.
119.
In this case, the Commission has ruled it proven that on May 28, 2007, RCTV ceased
broadcasting as a free-to-air television station as the result of the State’s decision not to renew that
channel’s concession. The petitioners allege that this decision constituted an arbitrary and discriminatory
abuse of office intended to punish RCTV for an editorial stance that was critical of the Venezuelan
government in violation of the freedom of expression and the right to equal protection of the channel’s
shareholders, management, and employees. They indicate that "revoking or denying the granting,
extension, or renewal of a concession of a television or radio station for the reasons indicated constitutes
an indirect and illegitimate measure restricting the right to expression and to communication and
circulation of ideas and opinions, something that is expressly prohibited by Article 13(3) of the American
140
Convention." For its part, the Venezuelan State stands behind what the Supreme Tribunal Justice ruled
to the effect that "the freedom of expression of the alleged victims was not violated as there are other
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means through which the journalists can express their ideas and opinions." It also argues that freedom
of expression has two dimensions and that "the perspective of the individual […] can under no pretext
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take precedence over the collective perspective of that rights [sic]."
Finally, the State insists that “the
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non-renewal of RCTV's concession was not carried out to silence the media outlet.”
In this regard, the
State transcribes the official notification of the decision not to renew RCTV’s concession, which indicates
that this decision is not a form of punishment, but rather simply a legitimate action that is part of the
government’s communication policy intended to "promote a new model for managing free-to-air television
that will coexist with other existing management models in the country under the scheme of public service
television, in order to permit the democratization of the use of over-air broadcast media and a plurality of
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messages and content."
120.
Thus, the Commission must resolve whether the decision not to renew the RCTV
concession was a legitimate decision of the Venezuelan government or if, on the contrary, it violated the
rights to freedom of expression and/or equal protection of the RCTV shareholders, management, and
workers appearing as alleged victims in this case. The Commission recalls in this sense that Article 13(3)
of the American Convention prohibits direct restrictions on freedom of expression, including the "abuse of
government [...] controls over [...] radio broadcasting frequencies.” For its part, Article 24 establishes that
all persons "are entitled, without discrimination, to equal protection of the law,” while Article 1(1)
guarantees enjoyment of the rights guaranteed in the Convention "without any discrimination” for reasons
of, inter alia, “political opinion.” In order to resolve the question of the possible violation of articles 13 and
24 in this case, the IACHR will proceed to analyze the following issues: 1) the authority and obligations
that States have when deciding whether to renew the concession of a radio or television frequency; 2) the
relationship between a media outlet and its shareholders, management, and journalists; 3) circumstances
of the failure to renew the RCTV concession; and 3) whether the nonrenewal of the RCTV concession
complied or not with the Venezuelan State’s obligations under the Convention.
1.
On the allocation and renewal of radio and television licenses
121.
The allocation of radio and television licenses is a decision with a definite impact on the
right to freedom of expression in both its dimensions: the right of everyone to express themselves freely
and the right to receive a diversity of ideas and opinions. Both the access of the media outlets owned by
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IACHR, Report No. 114/11 (Admisibility), Marcel Granier et al., Venezuela, July 22, 2011, para. 39.
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Annex 1, Communication of the petitioners received on February 18, 2010, p. 9.
141
Annex 72, State Communication received on December 4, 2011.
142
Annex 72, State Communication received on December 4, 2011.
143
Annex 72, State Communication received on December 4, 2011.
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Annex 72, State Communication received on December 4, 2011. Annex 25, MPPTI, Communication No. 0424 of
March 28, 2007, p. 11, Communication from the petitioners received on February 18, 2010, Annex 28.