December 6, 2013
Clarín and Gov’t go head-to-head in Court
Media conglomerate says its survival is at stake while AFSCA insists it’s about plurality
It was the long-awaited battle. The government went head-to-head against its top political enemy of the past four years — the Clarín Group — inside the staid halls of the Supreme Court.
At the second day of the Broadcast Media Law public hearing that pitted the country’s largest media conglomerate against the government, the lawyers for each side had to answer a battery of questions and even got the chance to try to shoot down each other’s accusations.
When Martín Sabbatella, the head of the AFSCA media watchdog, became the main voice defending the government’s position, he uttered a political allegation, which made Clarín’s lawyers furious.
“There will not be freedom of expression if there is no regulation of the communications market,” Sabbatella highlighted while saying that the biggest media conglomerate in the country reached its “economic power during the last dictatorship and during the 90s when the whole country was sinking.”
During the three-hour hearing, both parties answered questions from the country’s highest tribunal and rode their hobbyhorses. While Clarín Group said the law might affect its freedom of expression because it might damage its sustainability, the Kirchnerite administration highlighted that regulations are necessary to allow new voices to be heard.
After these two hearings, the Supreme Court has to deliver its ruling and decide on the constitutionality of the law that currently has several key antitrust articles blocked due to injunction requests filed by Clarín.
At 10am, Justice Chief Ricardo Lorenzetti began the second public hearing. His first words seemed to be addressed to the journalist Horacio Verbitsky, the president of the Centre for Legal and Social Studies (CELS), who on Wednesday criticized Lorenzetti for forcing those interested in filing amici curiae to express whether they were in favour of one side or the other. The head of the country’s highest tribunal said that they had followed an administrative resolution in order to guarantee impartiality.
Then Lorenzetti explained that he would call the experts and ask them 53 questions: 17 were addressed to Clarín’s lawyers and 36 to the state’s representatives.
A group of more than 10 experts representing the media group went up to the witness stand. The first question was directed at the heart of what Clarín has been claiming since the anti-trust legislation was approved by Congress in 2009: How would the law affect the group’s freedom of expression?
Lawyer Damián Cassino took the floor. “The law produces the opposite effect of what it claims,” he said, before talking about economic sustainability, the argument that would be repeated several times before they left the witness stand.
“Then, we will ask you about that,” Lorenzetti interrupted him and another member of the team replaced the nervous lawyer. Cassino was joined by constitutional lawyer María Angélica Gelli and by Alejandro Carrió, an expert in constitutional and criminal law. Carrió, who is currently the vice-president of the Association for Civil Rights (ADC), was Marcela and Felipe Noble’s lawyer in the case which investigated their alleged adoption by Clarín’s owner, Ernestina Herrera de Noble.
The government’s turn
Experts from the AFSCA appeared on the witness stand. The government’s arguments were headed by Graciana Peñafort Colombi, who used to head AFSCA’s legal department, constitutional lawyer Eduardo Barcesat and AFSCA official Daniel Larrache.
One of the Court’s recurrent questions was why then-president Néstor Kirchner signed a decree extending the licences in 2005 that benefited Clarín Group, and others, and then was ratified in 2009 by Congress, following the passage of the new media law. The state representatives denied it amounted to a contradictory message.
Part of Clarín’s intervention focused on that decree. The media conglomerate’s lawyers said that due to the licences, the company got into debt in order to update technology and if it is forced to divest, it would not be able to repay the debt and will finally be forced to disappear.
Lorenzetti also asked the government’s lawyers why they said that the law was frozen when in fact it could be applied, and then questioned what improvements had been made since 2009.
Larrache took the floor and, after checking some folders, he explained that 29 media groups presented their plans to adhere to the law and 15 of them were still under analysis.
“All media groups handed their plans except for the largest one, the Clarín Group,” Larrache explained.
After the questions, the highest tribunal invited both parties to deliver their final speeches. The plaintiff started.
“The criterion to establish the number of licences is not fair enough. It is not fair to affect Clarín Group without showing that a monopolistic situation exists,” Cassino said.
“Provided that the state has already assigned 600 licences as they said, why would it need Clarín’s to silence it?,” he asked.
His colleague Carrió complained because Clarín Group does not receive government advertising and claimed the media conglomerate suffered harassment from the state.
“There is a clear link between the lack of state aid and a critical editorial line,” the lawyer pointed out.
“Due to this independence, Clarín is the only media group capable of carrying out investigative journalism,” Gelli added.
Sabbatella stood up and addressed the tribunal: “I am here to confront the scandalous ruling from the Civil and Commercial Court that was made to defend Clarín’s interests.”
In April, that Court declared unconstitutional three articles of the Media Law, the ones that referred to the number of licences a group can hold and divestment requirements.
“The hearings were positive,” Sabbatella told the Herald while leaving the courtroom. “I think it was evident that we are defending our Constitution and they are defending their right to free enterprise.”
Clarín’s lawyer Carrió criticized Sabbatella.
“The state’s representative behaved as if he was in a political rally but it was a judicial hearing,” he told the Herald. “This was not the place to do that.”
A ruling for endless case?
Public hearings were introduced in 2004 by the Supreme Court to discuss matters of “institutional importance,” in which society as a whole is affected. The Broadcast Media Law is just such a case.
As the Herald reported yesterday, Justice Eugenio Zaffaroni will be in Germany for 20 days, so the ruling might be delayed.
“Somebody once told me this law was not going to pass, then that it would remain frozen by an injunction,” Peñafort Colombi told the Herald, “but I still believe in this law and I expect a positive ruling.”
sabbatella: ‘Law not tailored to clarín’s needs’
AFSCA media watchdog head Martín Sabbatella vociferously defended the Media Law yesterday when it was his turn to speak before the nation’s highest court, saying that Argentina is facing a media concentration that can be solved.
In an epic tone, he called on the justices to deliver a ruling that would define “if democracy can be deepened.”
“This is not a law tailored to Clarín’s needs,” Sabbatella highlighted after criticizing the Civil and Commercial Court that four months ago declared unconstitutional some articles of the bill.
“If they want a company to extort democracy or to appoint and sack presidents, a company will not be enough, they would need to form a political party, to run for elections and to win,” he said.