55
163. Furthermore, the description of restrictive measures in Article 13(3) is neither
exhaustive nor prevents considering “any other indirect methods” or means derived from new
technologies.239 Thus, Article 13 of the Declaration of Principles on Freedom of Expression gives
other examples of indirect methods or means when it indicates that “[t]he exercise of power
and the use of public funds by the state, the granting of customs duty privileges, the arbitrary
and discriminatory placement of official advertising and government loans; the concession of
radio and television broadcast frequencies, among others, with the intent to put pressure on
and punish or reward and provide privileges to social communicators and communications
media because of the opinions they express threaten freedom of expression, and must be
explicitly prohibited by law. The means of communication have the right to carry out their role
in an independent manner. Direct or indirect pressures exerted upon journalists or other social
communicators to stifle the dissemination of information are incompatible with freedom of
expression.”240 Likewise, during the public hearing, expert witness García Belaunde referred to
other possible means of indirect restriction related to: (i) publicity, [because] States are
important publicity agents and […] giving a great deal of publicity or taking it away may be
important and, in the latter case, can stifle the media which basically lives from publicity,” or
(ii) “taxes [in] cases in which heavy taxes have been levied on companies” in order to burden
them or to send message to media outlets.
164. The Court also recalls that, to result in a violation of Article 13(3) of the Convention, the
means or method must effectively indirectly restrict the communication and circulation of ideas
and opinions.241 In addition, the Court reiterates that Article 13(3) of the Convention imposes
obligations of guarantee on the State, even as regards relations between private individuals,
because it not only covers indirect government restrictions, but also private controls that
produce the same result.242 In this regard, the Court underlines that indirect restriction may
have a dissuasive, frightening and inhibiting effect on all those who exercise the right to
freedom of expression, which, in turn, prevents public debate on issues of interest to society. 243
1.4.
Broadcasting standards
165. As mentioned, Article 13(3) of the Convention notes that one of the examples of indirect
restrict relates to “abuse of government or private controls over […] radio broadcasting
frequencies.” It should be underscored that the Court recognizes the States’ authority and need
to regulate broadcasting activities,244 and this covers not only the possibility of defining the way
in which license concessions, renewals or revocations are handled, but also the possibility of
planning and implementing the relevant public policies, 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. In this
regard, expert witness Cifuentes Muñoz stated during the public hearing in this case that:
The rule for concessions […] and licenses must be clearly established by law. However, this law, insofar as
requirements of legality, necessity and proportionality necessary in a democratic society.
239
Cf. Case of Ríos et al. v. Venezuela, para. 340, and Case of Perozo et al. v. Venezuela, para. 367.
240
Article 13 of the Declaration of Principles on Freedom of Expression.
241
Cf. Case of Ríos et al. v. Venezuela, para. 340, and Case of Perozo et al. v. Venezuela, para. 367.
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, para. 48, and
Case of Perozo et al. v. Venezuela, para. 367.
242
243
Mutatis mutandis, Case of Herrera Ulloa v. Costa Rica, para. 133, and Norín Catrimán et al. v. Chile, para. 376.
In this regard, expert witness García Belaunde indicated that “the State is […] the administrator of these spaces
or these spectrums for obvious reasons, and especially in the past when the space was limited; today, it has increased
considerably.” Opinion of expert witness García Belaunde during the public hearing in this case.
244