17
company, not being protected by the inter-American system.
58.
In this regard, in his opinion, expert witness Alfredo Morales Hernández considered
that it was difficult to understand differentiating with respect to those who should be
considered victims with regard to the right to freedom of expression. He also considered that
“the government’s actions [that were] reported which violated the right to freedom of
expression were addressed at the media outlet and at all the individuals who had associated
to exercise the right to freedom of expression, without [any] distinction. [Thus,] the
Commission [should not have] made a distinction between the victims and provided
protection to some and not to others, basing the differentiation on participation in activities
that influenced the editorial line or the control of the media outlet.”77
57.
Ultimately, I consider that placing de facto limitations to classify a shareholder as a
victim – in this and future cases – nuances, to some extent, the considerations of the InterAmerican Court in the Cantos case, by subordinating the rights (in this specific case the right
to freedom of expression of a media outlet) to whether the possible victims have the capacity
to take decision on the editorial line that the media outlet should follow or offer; excluding
the contribution of finance and assets made by a person committed to the mission of the
media outlet and without which, very possibly, the company would not have been established.
59.
In addition, it should be considered that the boards of directors of media outlets are
temporary in nature, because they are constantly being renewed. Moreover, in the instant
case it is especially relevant that the “main body” of RCTV was the Shareholders General
Assembly, “which had the broadest possible authority to direct and administer the company
business,”78 as it was the General Assembly that appointed the “Board of Directors”79 and,
evidently, that Board – which was composed of several shareholders — shared the project of
all the shareholders who, in the case of RCTV, were all members of the same family.
60.
If all the shareholders have claimed the protection of the Inter-American Court vis-avis the closure of RCTV, it is precisely because they do not hold conflicting positions and, in
particular, opposing opinions with regard to this case against the Venezuelan State. From
this perspective, if the Court had following the findings of the European Court, since there
was no discrepancy among the shareholders and they all formed part of the proceedings
being processed before the inter-American system, there would have been no reason to
exclude Jean Nestares, Fernando Nestares, Alicia Phelps Tovar and Francisco J. Nestares as
victims of the right to freedom of expression.
61.
In the same way as the shareholders who form part of the decision-making bodies,
the shareholders who do not form part of these bodies are key elements to consolidate rights
such as freedom of expression by means of a television channel such as RCTV because they
chose to contribute their assets to a media outlet whose objective was to seek, receive and
impart ideas, which is protected, not only by Article 13 of the Convention, but also by Article
21 of this international instrument – which I will analyze in the following section.
62.
Based on the foregoing, I consider that the Inter-American Court should have
considered as “victims” all the shareholders, including Jean Nestares, Fernando Nestares,
Alicia Phelps de Tovar and Francisco J. Nestares, who, as part of the same family, shared the
personal and political project and all of them took steps that made an essential contribution
to the RCTV communication mission. These shareholders are natural persons whose freedom
77
Opinion of expert witness Alfredo Morales Hernández (merits file, folio 1627), para. 45.
78
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 63.
79
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 66.
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