December 9, 2013
IN SUPREME COURT TODAYWednesday, August 28, 2013
Gov’t, Clarín hold public hearing as media battle hits final phase
Journalists representing media from across the world — including the Associated Press, the BBC, Spain’s El País, Folha de São Paulo, The Wall Street Journal, the Daily Telegraph and China’s CNC — will gather today for a rare Supreme Court hearing on the constitutionality of the Media Law.
“I think the hearing is an excuse, though legitimate, to gain some time and delay a decision,” Santiago Marino, a professor in social communication at the Buenos Aires University (UBA), told the Herald.
The presence of 126 journalists at the nation’s highest court for the public hearing over the constitutionality of the Broadcast Media Law illustrates how much interest there is in what is expected to be one of the final salvos in a battle that has pitted the government against the Clarín Group, the country’s largest media conglomerate.
“The meeting creates a new participation stage and brings both parties to the table” but these sides are actually very different political actors, says Marino. “One is the state and the other a private company discussing a law approved by a wide majority.”
Media expert Martín Becerra thinks it will be a “strange” hearing.
“Here, the amicus curiae are
‘friends of the parties’ rather than friends of the court,” Becerra argued.
The event will probably have some “media impact” that will be used by the top tribunal to legitimize its final decision over the legislation’s constitutionality, the media analyst added.
Gustavo Arballo, a professor at the School of Economic and Legal Sciences of the National University of La Pampa, differs on this point.
“The Supreme Court wants to open up the decision process more than take a ‘tactical approach,’” Arballo says. “You can always be cynical and think the decision is already written, but I believe the government and Clarín would make a mistake if they go to the hearing assuming it’s a formality. I think there’s a chance of important things happening there.”
Mistakes by the government?
The government may find it hard to defend the Broadcast Media Law in court because of some of the measures — or lack thereof — the Cristina Fernández de Kirchner administration took after it was approved by Congress.
The AFSCA media watchdog, headed first by Gabriel Mariotto and then by Martín Sabbatella, delayed the implementation of a long-promised technical plan (which would have allowed the distribution of 33 percent of the frequencies to community radio and TV stations), tolerates other media monopolies forbidden by law and allows the government to use state-controlled media as government artillery, said Becerra.
“The government’s worst mistake was to subordinate application of the law directly to the conflict with Clarín,” he says. “This is a tactical mistake. If this government had adhered to the letter of the law, any future administration would find it very difficult to retrace its steps. But now the next government may be able to continue with the same kind of discretionary enforcement,” the media expert says.
Marino agrees with the claim — but adds a political component to the mix.
“Months ago, the government decided to attack the Supreme Court, not so much by sending a set of judicial reform bills but through the way the reform was carried out,” the professor recalls. “This may also influence the verdict.”
How will it end?
The main actors involved in the judicial battle take for granted that a final ruling on the constitutionality of the Broadcast Media Law will come short after today’s hearing — even before the October midterms.
But experts differ as to what the decision will be.
“I’m not optimistic, I think the tribunal will try to issue a ‘solomonic ruling’ out of a decision that will be everything except favourable to the national government,” Marino says.
The delayed decision on the injunction has already benefited the plaintiff — that is, the Clarín Group. And it is unlikely that the Supreme Court will confirm the constitutionality of all four questioned articles, the UBA expert added.
“Frozen” articles of the Broadcast Media Law include 41 (which describes the mechanism to transfer a licence), 45 (which establishes limitations to the ownership of cable networks), 48 (that sets up limits to “unlawful concentration practices”) and 161, that provides a timeframe of disinvestment within a year since the passing of the law — a timeframe that the government claims has already expired.
In that regard, Becerra believes the key will be what the tribunal will say on cable TV concentration, the core of the conglomerate’s business.
Arballo sees better chances for the Broadcast Media Law to pass the constitutionality test.
He recalls that in May 2012, the Supreme Court had already given indications that it saw “no relevant constitutional violations,” which means that — even though these are not great times for the government — there are still chances of a ruling representing other than an absolute triumph for Clarín.
“I’m thinking of an intermediate decision, which might also mean that all this whole process had any sense. If the Supreme Court had a clear solution for one of the litigants, this case would not have lasted four years.”