51
must be guaranteed “without any discrimination for reasons of…political or other opinion.” The specific
criteria according to which discrimination is prohibited, under Article 1.1, are not an exhaustive or
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restrictive list, but merely explanatory;
they do illustrate suspect categories in which differential
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treatment should be given particularly strict scrutiny. In practical terms, this means that, the burden of
proof falls on the State and the reasons given to justify the distinction are evaluated according to
heightened standards, so it is not enough for a State to claim that a legitimate purpose exists; the
objective pursued by way of the differential treatment should be a particularly important aim or a pressing
social need. Also, it is not sufficient that the measure be applicable, that there exist a logical causal
relationship between the measure and the objective pursued; it must be strictly required in order to
achieve that aim, in the sense that no less harmful alternative exists. Lastly, compliance with the
proportionality criterion requires proof of an appropriate balance of interests, in terms of level of sacrifice
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and level of benefit.
161.
In this case, as we have seen, high officials of the Venezuelan State issued in advance,
as grounds for nonrenewal of the RCTV franchise, repeated claims of its alleged role in destabilizing
Venezuelan democratic institutions. President Chávez, for example, in referring to the channel, said it
was “poisoning people,” that it was “at the service of lies, at the service of subversion, at the service of
terrorism, at the service of destabilization,” and that it was “at the service of treason, against the people,
against the nation.”
162.
The Inter-American Court has stated that “[r]epresentative democracy is a determinant
factor of the entire system of which the Convention forms part,” and constitutes “a ‘principle’ reaffirmed by
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the American States in the OAS Charter, a basic instrument of the Inter-American system.”
For the
IACHR, then, protecting a country’s democratic institutions is without doubt a pressing social need that
could justify a differential treatment, although under strict scrutiny.
163.
Nevertheless, the Court has indicated that when a State intends to justify differential
treatment of this sort, it is not sufficient for the state simply to invoke a legitimate aim in the abstract; it
must also prove a relationship between the state action and the aim invoked. For example, when in the
case of Atala Ruffo and Children v. Chile the Chilean State invoked the best interest of the child as the
legitimate aim pursued through differential treatment on the basis of sexual orientation, the Court
observed that “‘the child’s best interest’ being considered as a legitimate goal, in abstract terms, the mere
reference to this purpose, without specific proof of the risks or damage to the girls that could result from
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the mother’s sexual orientation, cannot serve as a suitable measure to restrict a protected right.”
164.
In this case, the State has not presented an argument or proof demonstrating a
relationship between the legitimate aim of protecting the country’s democratic institutions, invoked
publicly by the President of the Republic and other high officials, and the State’s nonrenewal of the RCTV
franchise for reasons of political opinion. If the information broadcast by RCTV was merely disagreeable
or inconvenient to the State officials, they were obliged to tolerate it, since freedom of expression should
be guaranteed in terms of the dissemination not only of ideas or information that are favorably received or
deemed inoffensive or unimportant but also of ideas and information that offend, shock, disturb, are
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I.A. Court H.R., Case of Atala Riffo and Children v. Chile. Merits, Reparations, and Costs. Judgment of February 24,
2012. Series C, No. 239, para. 85.
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Cf. IACHR, Petition before the I.A. Court H.R. in the case of Karen Atala and Children v. the State of Chile, September
17, 2010, para. 88, available at: http://www.IACHR.oas.org/demandas/12.502SP.pdf.
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Cf. IACHR, Petition before the I.A. Court H.R. in the case of Karen Atala and Children v. the State of Chile, September
17, 2010, para. 89, available at: http://www.IACHR.oas.org/demandas/12.502SP.pdf.
220
I.A. Court H.R., Case of Castañeda Gutman v. Mexico. Preliminary Exceptions, Merits, Reparations, and Costs.
Judgment of August 6, 2008. Series C, No. 184, para. 141.
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I.A. Court H.R., Case of Atala Riffo and Children v. Chile. Merits, Reparations, and Costs. Judgment of February 24,
2012. Series C, No. 239, para. 110.