4
obligations of the States, it should be understood that the one mentioned here
includes all the institutional spheres of the power of the State, so that the Executive,
the Legislature, the Judiciary and all the other areas of the State, within their terms
of reference, are also subject to them.
Radio frequencies and rights of private individuals
14.
The legal conditions for the use of radio frequencies has been one of the
important aspects disputed in this case. As described in the judgment, during the
proceedings the representatives of the victims argued that an alleged right to
“automatic renewal” of the right to the use of the frequency allocated to RCTV had
been violated, while the State affirmed that the right to automatic renewal did not
exist under Venezuelan law.
15.
In this regard, the Court was clear in establishing, first, the power of the
States “to regulate broadcasting activities, and this covers not only the possibility of
defining the way in which concessions, renewals or revocations of licenses are
handled, but also the possibility of planning and implementing the relevant public
policies.”18 However, at the same time, the Court clarified that this is so, “provided
that the standards imposed by the right to freedom of expression are respected. This
is because the granting or renewal of a broadcasting concession cannot be compared
to that of other public services because the scope of the right to freedom of
expression must permeate the respective regulation.”19
16.
By the same token, the State’s ability to regulate this area must not only
respect and ensure the right to freedom of expression in general but, in particular,
must seek to ensure pluralism taking into account that the radioelectric spectrum is
a limited resource, which restricts the number of media that have access to it.
Therefore, the Court established that “it is necessary to ensure that this media
represents a diversity of news and opinion viewpoints or positions. […] The foregoing
should be taken into account in the procedures for the granting and renewal of
broadcasting concessions or licenses.”20 Based on considerations such as this, the
Court was emphatic in establishing that “any limits or restrictions arising from
broadcasting laws and regulations should take into account the guarantee of the
pluralism of the media, given its importance for the functioning of a democratic
society.”21
17.
Applying this reasoning to the instant case, taking into consideration the
elements of law and the proven facts, the Court concluded that this guarantee of
pluralism had been impaired by the actions of the State. This was not because RCTV
had been denied an alleged right to “automatic renewal,” which the Court noted that
the State was not obliged to grant under either domestic law or international law, 22
but owing to the lack of objective criteria used by the authority in the case of RCTV
and the serious violation of the guarantees of due process that prevented the
executives of this company from negotiating the renewal of the license that expired
on May 27, 2007.
18.
As the Court established in this judgment, “starting in 2002, indications were
given that the television channels that did not modify their editorial line would not
have their concessions renewed.”23 The real reasons for the decision in the case of
18
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 165.
19
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 165.
20
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 170.
21
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 170.
22
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, paras. 178 to 180.
23
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 193.
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