20
frequency on the electromagnetic spectrum. In the case sub judice, the concession granted
by the Venezuelan State encompassed both the license to transmit television programs and
the allocation of a portion of the electromagnetic spectrum; therefore, it was not possible to
consider that the concession was the property of the shareholders. Also, in the case of RCTV,
the misuse of power used by the Venezuelan government resulted in the non-renewal of the
RCTV concession, leading to a deprivation of its function as a means of communication.
73.
Second, regarding the assets, as the European Court emphasized, what the article
protects is the interests and rights derived from the exploitation of the license and, in that
case in particular, this included the allocation of a concession over the spectrum. In the case
of RCTV, the concession was not a property right of the shareholders; to the contrary, it was
the means that allowed them to take advantage of interests derived from the concession,
such as the share value resulting from the exercise of a communication function protected by
Article 21(1) of the Convention.
74.
Added to this, the European Court did not find that the failure to grant the concession
resulted in an expropriation, because Centro Europa 7 had the infrastructure to be able to
transmit as soon as it received a concession for the spectrum. However, regarding the assets
to be able to implement the communication function, the situation in the case of RCTV was
very different, because the Venezuelan State executed a de facto seizure of the assets used
by RCTV to transmit its programs, which, according to the provisions of Article 21(2) of the
Convention, involved arbitrary interference by the government.
75.
Thus, in the context of violation of the freedom of expression of the shareholders of a
media outlet, what the Convention protects under Article 21, related to Article 13 (first and
third paragraphs), are the economic interests relating to the exploitation of the concession,
such as the shares and the assets that were necessary to ensure the dissemination of the
information. Having made this clarification, I will now analyze the two above-mentioned
aspects of the right to property in light of freedom of expression.
III.A. Loss of value of RCTV shares
76.
Article 21(1) of the American Convention establishes that “[e]veryone has the right to
the use and enjoyment of his property. The law may subordinate such use and enjoyment to the
interest of society.” The wording of this paragraph responded to an issue that was the subject
of discussion in Europe on the extension of the protection offered, because it refers explicitly to
the “right to the use and enjoyment” and, thus, offers a broader protection than the European
protection. According to the American Convention, an unlawful restriction of either of these
two attributes (even if it does not affect them both at the same time) violates the protected
rights. In other words, the breadth of the provisions of Article 21 of the Convention guarantee
the protection of both the “use” and the “enjoyment” of the said property, and the two
together, against any unlawful restrictions or deprivation.
77.
In its case law, the Inter-American Court has developed a wide-ranging concept of
property that includes, among other matters, the use and enjoyment of property, defined as
appropriable material possessions, as well as any right that may form part of a person’s
property. This concept includes all the movable and immovable property, tangible and
intangible elements, and any other immaterial object that may have a value. 89
Case of Mémoli v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of August 22,
2013. Series C No. 265, para. 170; Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits,
reparations and costs. Judgment of August 19, 2013. Series C No. 259, para. 269; Case of the Massacres of El Mozote
and nearby places v. El Salvador. Merits, reparations and costs. Judgment of October 25, 2012. Series C No. 252,
para. 179; Case of Furlan and family v. Argentina. Preliminary objections, merits, reparations and costs. Judgment
89
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents