By Fathima Rena Abdulla
Much has been said about equality in the context of access to “consumption” of technology through discourses on net neutrality and the digital divide (see, most recently, §§ 9-12, 78th Session UNGA, Item 85, Report of the Secretary-General). The discourse on equal access to ownership of technology has been comparatively limited. Spectrum allocation policies are especially important, as they provide one of the few ways to own the means to produce or create technological content. As Europe strives to ensure equitable access to digital technologies, exemplified by Principle 12 of the European Declaration on Digital Rights and Principles (2022) – which calls for “everyone to have access to a trustworthy, diverse and multilingual digital environment” enabling “effective participation in democracy in a non-discriminatory manner” – the European Court of Human Rights’s (ECtHR) stance on technological access will determine whether these aspirations can be fully realised.
This post looks at how and why the ECtHR has failed to deal with equitable access in its decisions on radio spectrum allocation, and explains why this may have broader implications for digital rights jurisprudence. As digital convergence policies seek to unify regulatory approaches across technologies, from radio systems to semiconductors to cloud computing, the ECtHR’s rulings on radio spectrum could set a baseline for broader digital rights jurisprudence.
Spectrum Auctions and Community Radio: Notes from Latin America
The electromagnetic spectrum is the lifeblood of wireless communication, enabling everything from radio to WiFi to IoT applications to even satellite communications. The administration of this scarce resource is the responsibility of States, which have an implied duty to treat the various sections of society equitably since it’s internationally recognized as the common heritage of mankind (see art. 44, §196, Constitution of the International Telecommunication Union). However, some states’ telecommunication policies follow an auction process where the highest bidder gets the allocation.
When states overly restrict or monopolise spectrum for commercial interests, it constrains the ability of marginalised communities to participate in public discourse. In Indigenous Peoples Maya Kaqchikel from Sumpango v. Guatemala (2021), the Inter-American Court of Human Rights (IACtHR) raised the accessibility concern this poses:
“[The system in place] encourages indirect discrimination, and is an impediment to the exercise of freedom of expression, since it only takes into account the best financial offer as the sole criterion for the allocation of radio frequencies and [the State] hasn’t adopted any measures, like the reservation of frequency bands, in order to allow indigenous people to establish and operate their own media outlets” (¶ 149).
Many countries have dealt with this concern by requiring reservation of frequency bands for community radio. This approach has been adopted by various nations in Latin America, where Uruguay, Argentina, and Bolivia all reserve at least one-third of all frequencies for community or related broadcasters. When these concerns are brought to Court, in some jurisdictions, we can even trace the slow emergence of a “right to community radio,” as seen in the above IACtHR decision. Another example is the decision of El Salvador’s Supreme Court of Final Appeal in an action challenging the constitutionality of the El Salvador Telecommunication Act; the Court declared the law to be unconstitutional on the ground that it did not establish alternatives to monetary auctions for allocating and awarding broadcast licences for regulated portions of the radio frequency spectrum (p. 60).
Addressing Access: Limitations of Freedom of Expression
However, when the ECtHR has dealt with these policies, discussions of freedom of expression and media pluralism have dominated the discourse, rather than the accessibility concerns (see, e.g., Autronic AG v. Switzerland (1990); see also Groppera Radio AG and others v. Switzerland (1990)). However, the ECtHR has failed to take into account that the term “media pluralism” also includes diversity in ownership (see the 2007 Joint Declaration on Diversity in Broadcasting signed by the Special Rapporteurs from the UN and other regional organisations including the Organization for Security and Cooperation in Europe). Even the UN Human Rights Committee’s General Comment No. 34, on “Article 19: Freedoms of Opinion and Expression” states:
“Licensing regimes for broadcasting via media with limited capacity, such as audiovisual terrestrial and satellite services should provide for an equitable allocation of access and frequencies between public, commercial and community broadcasters.”
Although the above discussion might make it seem like accessibility can be effectively addressed by protecting freedom of expression, that’s not the case. This is because Article 10, § 1 of the European Convention on Human Rights on freedom of expression provides, “this Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” Although not by itself problematic, in effect, this has made the Court hesitant to address the question of equitable access through Article 10 because the law on licensing and allocation is by and large considered to be within the State’s margin of appreciation. So, the only other avenue through which the Court could have approached the question of equitable access is through Article 14 on non-discrimination. But it doesn’t seem so easy.
A Perpetually Overshadowed Article 14?
There are three kinds of broadcasters: public, commercial, and community. In the landmark decision Informationsverein Lentia and others v. Austria (1993) (Lentia), the Court, for the first time, specifically ruled out the idea of a public broadcasting monopoly. Although the decision was in the right direction, it fell short of considering the possibility of indirect discrimination concerns that such a law poses, even though the Plaintiffs claimed a violation of Article 14. The Court justified not addressing the Article 14 claim by stating that it was unnecessary since an Article 10 breach was already found (§§ 42-44). This pattern repeats in many cases (see, e.g., Freie Rundfunk AG I GR v. The Federal Republic of Germany (1987); see also United Christian Broadcasters v. UK (2000)). This practice might be due to two assumptions;
(1) There is nothing left to claim under Article 14 that is already not provided for under Article 10, and
(2) This is because Article 14, like Article 10, does not take indirect discrimination into account.
However, from the above discussion, it is evident that the first assumption is not true. The wording of Article 10 makes it difficult or impossible to adjudicate on the merits of a State’s licensing/allocation laws, but it could fall under the ambit of Article 14.
With regards to the second assumption, it might have made sense at the time Lentia was decided. The ECtHR’s approach to equality has evolved significantly since the 1993 Lentia decision. Since then, possibly influenced by the adoption of the EU Charter of Fundamental Rights (2000), the Court has embraced more progressive notions of equality (Fredman, p. 8). In Thlimmenos v Greece (2000), the Court held that Article 14 is also violated when states “fail to treat differently persons whose situations are significantly different” without objective and reasonable justification (§ 44). Further, in DH v Czech Republic (2007), the Court recognized that “a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group” (§ 184). Notably, the Court emphasised that indirect discrimination does not necessarily require discriminatory intent.
So, one would hope that, in light of these developments, the ECtHR would take a deeper look at Article 14 if a similar situation arose. But the Court just repeated the previous pattern in Lentia. In Centro Europa 7 S.r.l. and Di Stefano v. Italy (2012), the Court went as far as saying,
“…in addition to its negative duty of non-interference, the State has a positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective pluralism. This is especially desirable when, as in the present case, the national audiovisual system is characterised by a duopoly” (§ 134).
Although the criticism of the duopoly of public and commercial broadcasters is a welcome remark, the decision fell short in enforcing the positive obligation. The Court proceeded to declare the Article 14 claim inadmissible since it was “closely linked to the complaint under Article 10” (§§ 159-62). By consistently sidestepping Article 14 claims in favour of Article 10, the Court has left the ground infertile for planting seeds for equitable access to technology in the future.
This stance, rooted in an outdated understanding, fails to keep pace with other jurisdictions like Latin America and even with the Court’s own evolving jurisprudence. As digital convergence blurs technological boundaries, the Court’s reluctance to engage with indirect discrimination issues in spectrum allocation may set a limiting precedent for broader digital rights.
Fathima Rena Abdulla is a fourth-year law student at the National University of Advanced Legal Studies, Kochi. Her interests include comparative law, technology and sustainability.
