38
those requesting access to the frequencies and society’s right to receive a plurality of information
pursuant to Article 13 of the American Convention depend on this decision. Effectively, on allocating
frequencies, the State decides which voice the public will be able to hear in the years to come. As a
consequence, this process defines, among other things, the conditions under which the democratic
debate necessary for the informed exercise of political rights will be carried out, as well as the sources of
information that will allow each person to make informed decisions on their personal preferences and
145
prepare his or her life plan.
122.
The rights in play demonstrate the enormous importance of the process of allocating
licenses. It should be recalled that both the Convention in Article 13(3) and the Declaration of Principles
on Freedom of Expression of the IACHR in its Principal 13 make explicit reference to the need to prevent
this process from becoming a mechanism for the indirect restriction of freedom of expression. Regarding
this, the Declaration of Principles establishes the following:
The 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
146
expression .
123.
For this reason, the process of allocating and renewing concessions must be strictly
147
regulated by law, characterized by transparency , and guided by standards that are objective, impartial,
148
clear, public, and compatible with a democratic society. Likewise, the proceeding for awarding a license
must be surrounded by sufficient guarantees against arbitrariness, including the obligation to provide
justification for a decision granting or denying the request, as well as to provide adequate judicial
149
oversight of the decision.
145
IACHR, Office of the Special Rapporteur for Freedom of Expression. Freedom of Expression Standards for Free and
Inclusive Broadcasting OEA/Ser.L/V/II IACHR/RELE/INF. 3/09. December 30, 2009, paras. 60-61. Available at:
http://www.cidh.org/pdf%20files/Estandares%20para%20radiodifusion%20incluyente.pdf
146
IACHR. Declaration of Principles on Freedom of Expression,
http://www.cidh.oas.org/relatoria/showarticle.asp?artID=26&lID=2. Underline added.
Principle
13.
Available
at:
147
Joint Declaration on Diversity in Broadcasting. December 12, 2007. In the same sense, the Committee of Ministers of
the Council Of Europe found that, “13. One of the essential tasks of regulatory authorities in the broadcasting sector is normally the
granting of broadcasting licences. The basic conditions and criteria governing the granting and renewal of broadcasting licences
should be clearly defined in the law.” And that: “14. The regulations governing the broadcasting licensing procedure should be clear
and precise and should be applied in an open, transparent and impartial manner. The decisions made by the regulatory authorities
in this context should be subject to adequate publicity. Council of Europe. Committee of Ministers. Appendix to Recommendation
Rec(2000)23 of the Committee of Ministers to member states. Rules 13-14. December 20, 2000. Available at:
https://wcd.coe.int/ViewDoc.jsp?Ref=Rec(2000)23&Language=lanEnglish&Ver=original&Site=CM&BackColorInternet=9999CC&Bac
kColorIntranet=FFBB55&BackColorLogged=FFAC75.
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In this sense, the Committee of Ministers of the Council of Europe has recommended that the "regulations governing
the broadcasting licensing procedure should be clear and precise and should be applied in an open, transparent and impartial
manner. The decisions made by the regulatory authorities in this context should be subject to adequate publicity.” Recommendation
Rec(2000)23. Committee of Ministers of the Council of Europe. December 20, 2003. para 14.
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IACHR, Office of the Special Rapporteur for Freedom of Expression. Freedom of Expression Standards for Free and
Inclusive Broadcasting. OEA/Ser.L/V/II IACHR/RELE/INF. 3/09. December 30, 2009, paras. 60-61. Available at:
http://www.cidh.org/pdf%20files/Estandares%20para%20radiodifusion%20incluyente.pdf. In the same way, the European Court of
Human Rights has understood that as “regards licensing procedures in particular, the Court reiterates that the manner in which the
licensing criteria are applied in the licensing process must provide sufficient guarantees against arbitrariness, including the proper
reasoning by the licensing authority of its decisions denying a broadcasting licence.” Meltex Ltd. & Mesrop Movsesyan v. Armenia.
Judgment
of
June
17,
2008,
para.
81.
Available
at:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Meltex&sessionid=39882418&skin=hudocen.