Mexico: Administrative Litigation Review 2018

By Fernando de Salvidea de Miguel and Rocío González Alcántara Lammoglia, De Salvidea y González Alcántara Abogados

In this article, we offer a brief overview of related developments in Mexican jurisprudence administrative law, and the contentious aspects thereof, during 2017. As such, we will comment on the judicial rulings that, to us, appear the most interesting and exceptional in relation to Mexican administrative law this area.

Administrative Litigation

To clarify: under the Mexican legal system, “administrative law” is a generic term, as opposed to other (though no less important) specific areas of administrative law that derive therefrom, such as transparency, environment, intellectual property, consumer and data protection, banking, antitrust and tax, among others. Therefore, in Mexico, administrative litigation deals with these and any other specific matters in which a private party (either an individual or a corporation) interacts with the government as the ultimate regulator.

As Mexican administrative law evolves, it becomes increasingly obvious that new practices are emerging and new challenges are being posed to administrative law trial lawyers, who must deal with many different sub-specialisations. Thus, the decisions covered in this brief review necessarily involve particular ramifications of administrative law that have been discussed in Mexico’s highest courts.

There was, for example, an interesting set of decisions made in 2017 dealing with the dissemination of information via the internet. It is generally agreed that freedom of expression is a main requirement for a democratic society, and for the formation of public opinion. It has long been recognised as one of the most important and fundamental human rights, and the cornerstone of other rights. The exercising of freedom of expression is an essential indicator of the protection of other rights, as well as a tool against impunity and corruption. However, this right is not absolute. International human rights law authorises restrictions in certain (albeit few) circumstances.

In a litigation that resulted in one of these 2017 decisions, the Mexican Industrial Property Institute (IMPI), the authority in charge of applying intellectual property regulations, issued and executed a temporary order blocking the entire content of a music website for allegedly breaching third-party copyright. A telecoms company challenged the injunction through a constitutional review claim.

The case went to the Supreme Court, which analysed the principles governing freedom of expression through the internet. The Court acknowledged that all provisions relating to freedom of speech are applicable to internet use.

The Mexican Supreme Court reaffirmed that the Mexican state must take all necessary measures not only to promote freedom and independence of the internet, but also to guarantee its access. Given its characteristics (speed, global reach and relative anonymity), the internet is a fundamental way for people to exercise their right of freedom of expression.

Consequently, the free circulation principle requires that access to information and ideas made via virtual media should be restricted as little as possible.

The Court also explained that for any limitation to be rendered legal, three standards must be met. It must:

  • be provided by the statute;
  • have a legitimate and necessary purpose; and
  • be proportionate.

In this case, only the first two standards were met.

The injunction issued was not restricted to specific musical pieces. It was a complete censorship of the site, preventing all users from accessing and viewing the web content. The company’s total web blockade implied not only the censure of the content generated by the administrator, but also the entire flow of information and expression between the site and its users, which is unconstitutional.

The Court ruled that the IMPI’s injunction was unnecessary and disproportionate; and, as there were other, less restrictive measures available, it was deemed excessively broad. Permissible website restrictions should only apply to specific content, unless the site is carrying out an international crime – for example, child pornography or the incitement of terrorism, genocide or hate speech (that is, national, racial or religious hatred inciting discrimination, hostility or violence). This was not the case here. Copyright protection will never justify blocking an entire website; this ruling was, therefore, a landmark decision.

In the context of the 2016 presidential elections in the US and France, as well as recent elections in other countries, electronic media and social networks in particular have become exceptionally important. At the same time as enabling immediate knowledge of candidates’ policies and opinions, the electronic media has also exposed the public to smear campaigns run by malicious individuals. The international accumulation of dubious and even false information has led to the coining of the term “fake news”. This term not only comprises news that is wholly false, but has also come to symbolise a defence mechanism in response to information, especially in politics.

In this regard, the “right of reply” or “rectification” is a measure that translates into the possibility of any person to clarify information, disseminated by a means of communication, that contains false or inaccurate facts that cause harm and establish a demonstrable limit on the function of information. This right is recognised not only in Mexican law but also by the American Convention on Human Rights. In this regard, several media companies recently challenged the constitutionality of the Regulatory Law on the Right of Reply, published in the Federal Official Gazette on 4 November 2015. This challenge reached the First Chamber of the Supreme Court, which issued the first ruling on the matter in Mexico. Because of its content, this constitutes an important precedent in what “freedom of expression” really means.

In the face of inaccurate or false information (and, of course, slander) the media has an obligation to transmit free information in exercising this right of reply – not as a means of censorship, but as a legitimate limit to the function of information. This right has been extended to public officials, who are given the opportunity to clarify false or inaccurate information and to guarantee public access to relevant information. The Court thus determined that the standard of “effective malice”, or the intention to damage the validity of the communications, does not have to be met when it comes to civil servants. When a civil servant is involved, therefore, the mere existence of false, inaccurate or mistaken information will suffice in order for the right to reply or rectification to proceed.

As a result, it is the opinion of the First Chamber of the Supreme Constitutional Court in Mexico that the right of reply does not contradict freedom of expression; and also that right to reply must be protected by wider society’s need for clarification on information – especially that involving public officials. The Supreme Court also made it very clear that compensation for damages caused by the dissemination of false or inaccurate information is independent of the right of reply. Finally, it was determined in this important precedent that the right of reply creates an obligation on the media to disseminate the rectification free of charge, even when they concern “paid insertions” that contain false or inaccurate information; and that this rectification, by virtue of being published free of charge, is not in breach of the freedom to work. This latter point is significant because the Constitution states that, notwithstanding the general principle that work must be paid for, it is possible to establish limitations in law if the measure is necessary, appropriate and proportionate.

Another recent judgment, which constitutes a highly significant precedent for democracy and freedom of expression in Mexico, relates to the necessary regulation of public spending on official advertising, resulting from the Mexican Federal Congress’ negligence in enacting the corresponding law.

This ruling is of utmost importance – not only as far as the legislative omission matter is concerned, but also because the decision was issued with respect to a highly sensitive and controversial area of politics.

It has been a notorious tradition of Mexico that the government spends a great deal on media advertising when the editorial line is sympathetic to their causes, while financially suffocating those that are more critical. Some media outlets have admitted that official advertising comprises 40 to 50 per cent of their income.

In Mexico the constitutional regime has not yet reached a desirable degree of stability. Government-level changes to the Constitution are still too frequent; in fact, there have been almost 700 amendments since 1917 –  a very high number when compared to other, older constitutions in the developed world. In the current government alone, 150 amendments have so far been passed. As such, it is often the case that the Constitution is reformed and the corresponding modifications to the secondary legislation are not enacted, or are delayed.

In a session held in November 2017, the First Chamber of the Supreme Court, for the first time, ordered Mexican Congress to enact a law in the face of what is known as a legislative omission, in response to a constitutional review action filed by the Mexican chapter of Article 19, an international non-governmental organisation based in the UK.

This amparo lawsuit was filed precisely because Congress had not complied with its constitutional obligation to legislate. This obligation was created by a 2014 constitutional amendment, and was thus more than three years overdue. 

The judgment set forth that a legislative power may not decide not to legislate when there is a constitutional obligation to do so; rather, that it can be bound by the constitutional courts, as they have the power to analyse the constitutionality of both laws and omissions to legislate. Finally, because of the very nature of the law that Congress failed to issue, the judgment determined that the fundamental rights violated by the legislative omission are freedom of expression, press and information.

The most important outcome of this case is that the mechanism of the “amparo trial”, for the first time, created an obligation on Congress to legislate in all matters in which, despite being foreseen in the constitution, the legislator has omitted to do so. Thus, as a result of this landmark ruling, any party – whether an individual or a corporation – with legitimate interests (that is, a qualified interest with certain legal characteristics) can go to the federal courts in order to enforce said obligation.

We will now turn to a decision concerning the powers of an administrative authority to block a bank account when a person is subject to investigation for operations involving resources of illegal origin. Article 115 of the Law on Credit Institutions sets forth an obligation on banking institutions to suspend operations with persons who are under investigation, and who are identified in a confidential list issued by the Financial Intelligence Unit of the Ministry of Finance. This landmark case originated from a request made by the National Banking and Securities Commission to two financial institutions to suspend operations unilaterally and without prior notification. The client challenged these actions and the relevant law, stating that the unilateral order violated his fundamental right to hear the case and his right to presumption of innocence, recently recognised in the Mexican Constitution. His reasons were ruled to have legal foundation by the First Chamber of the Supreme Court of Mexican Justice.

Another interesting decision, this time made by the Second Chamber of the Supreme Court, concerns actions in which an administration has created the expectation of a certain benefit or right acquired for individuals or corporations. This implies the protection of reasonably created assumptions, based on the actions or omissions of the authority maintained over time and with consistency, and from which the individual or corporation has adjusted his or her behaviour. The decision concerns the expectation being broken because of a sudden change. The Court determined that legitimate expectations are closely linked to the principle that administrative acts cannot be revoked unilaterally. If an administrative authority wishes to modify this validly created situation, it cannot do so by itself but must initiate a trial before the Administrative Court of Justice.

As we can see from this brief account of significant decisions, the evolution of administrative and constitutional law in Mexico in 2017 allows us to keep sowing the seeds of a democratic state in which the rule of law prevails. Among other advantages, this creates a climate that is essential in giving certainty to Mexican nationals as well as foreign investors. As trial lawyers, we play a key role in this process – as, indeed, do our clients. Without a strong and continued litigation practice in defence of the Constitution, these advances would not be achieved.

It is true that there is still much to be done in order for Mexico to be recognised as a true rule-of-law state; however, in our opinion these Supreme Court rulings represent well-grounded hope for the years to come.

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