December 12, 2013
Supreme Court deals blow to Clarín
The Supreme Court yesterday declared the constitutionality of the Broadcast Media Law, which was approved in 2009 and has been the main point of confrontation between President Cristina Fernández de Kirchner’s administration and the Clarín Group, the country’s largest media conglomerate.
It was not close. The 6-1 decision left no room for doubt that the highest court in the land saw the controversial law as constitutional.
Although the decision was expected to bring an end to a long battle — which has divided the political field since the law was passed — the ruling seems to have ignited a new one, especially after the tribunal said the government must pay economic compensation to the media group if it is forced to get rid of licences.
The Court said that the period to present a plan to adapt itself to the law — established in Article 161 — had expired, a point that was vociferously repeated by AFSCA media watchdog head Martín Sabbatella yesterday when he said Clarín’s time had expired.
In its 392-page ruling, the Court threw the ball into the government’s court, which will now be forced to implement the law in a peculiar political context, having suffered a defeat at Sunday’s midterm elections.
Two days after the elections, the highest Argentine court puzzled the entire political community by announcing a positive ruling in a case that has served as one of the government’s main clarion calls: the Media Law. But one of the members of the Court told the Herald that the timing had nothing to do with the electoral calendar.
“We follow our own agenda,” the justice insisted.
Justices Ricardo Lorenzetti, Elena Highton de Nolasco, Enrique Petracchi, Eugenio Zaffaroni, Carmen Argibay and Juan Carlos Maqueda agreed on the constitutionality of the anti-monopoly law, though Argibay and Maqueda objected to some articles. The only justice to declare the law unconstitutional was Carlos Fayt, who has been long been at loggerheads with the government, especially after the president issued a very public criticism against him for remaining in his post despite being 95 years old.
How should the Media Law be implemented?
Justices acknowledged it was easy for them to decide on constitutionality, and that the main point of controversy had been the discussion over how the legislation should be implemented.
Several parts of the law were frozen by injunction requests filed by Clarín on four key articles: 41, 45, 48 and 161, which broadly refer to the transferring licences and disinvestment.
The members of the Court touched on the most controversial aspect of the case: the argument over Clarín Group’s acquired rights.
In 2005, then-president Néstor Kirchner extended Clarín’s licences for 10 years. Two years later, the late former president allowed Multicanal and Cablevisión cable TV providers to merge. Some time after the Media Law — which regulates the amount of licenses a media group can have — was passed, lawmakers ratified Kirchner’s decree.
Justices Lorenzetti, Zaffaroni, Highton de Nolasco and Petracchi, insisted that the company had to be compensated economically if it were forced to give up licenses and found its bottom line affected as a result. That idea was in opposition to the government’s insistence that licenses amount to “privileges” granted by the state that can be taken away.
Justice Maqueda considered that granting licences to Clarín meant it had earned acquired rights and that defining licenses as a “privilege” would mean a risk for holders on the whim of any government desires. For him, economic compensation would not be enough, so he proposed waiting until after the licences expire to implement the Media Law.
Argibay said that the limits to licenses were constitutional but the way of putting them into practice was not. She also considered that a media watchdog should be created on the US model, to implement the law but also make certain criteria more flexible.
Justices agreed that the law was constitutional because it was passed by Congress and acknowledges the state has the right to regulate. The justices highlighted that they were contemplating a bill passed by the Legislative branch and not an “administrative act” from the government that hurts a particular party, comparing the situation created by the Media Law with a previous ruling.
In 2007, the Court had said that the Neuquén government had affected the Río Negro daily’s freedom of speech by reducing its allocated public advertisement due to the newspaper’s critical coverage.
The case does not serve as precedent, as the Media Law limits licenses for all holders, not just for the Clarín Group.
During the public hearings, the media group’s lawyers reiterated that by reducing its licences, its economic sustainability might be affected. However, the Supreme Court said that what could be affected was profitability, not sustainability, adding that the process to curb media concentration might mean a dent in profits.
Justices also said that being an economic powerful company did not necessarily guarantee neither independence nor a critical voice.
The members of the highest tribunal insisted that Clarín’s rights have not been affected so far. In their ruling, they analyzed only the law itself and not how it was being implemented.
The Supreme Court insisted that the AFSCA media watchdog had not been implementing it, and therefore was not aware of its criteria.
To justify their ruling, justices referred to freedom of speech as one of the most important rights established by the Constitution, requiring strong protection by state authorities. They also considered freedom of speech a collective right that has to be protected in order to benefit public debate. Justices highlighted that if there was media concentration, freedom of speech and the right to information could be severely undermined, an argument pushed by the Kirchnerite administration.
Some guidelines to implement the Media Law
As part of their huge decision, Justices arguably outlined what could be considered hints for the future implementation of the law.
“They could be useful for lawmakers,” a court source told the Herald, explaining that several political leaders are proposing modifications to the law. But in its guidelines, the Court also urged the government on several issues that remain pending.
Justices said that Congress should decide if the law was obsolete as Clarín claimed, because it does not regulate the Internet.
The Court also urged the state to implement transparent policies regarding public advertisement, adding that the state might be affecting freedom of expression through the arbitrary distribution of subsidies and public advertisement funds, potentially using such mechanisms to eliminate dissident voices.
The justices repeatedly referred to the role of the media, but in the third section of the ruling, they made specific reference to public media, saying that they should satisfy the whole population and not become pro-governmental spaces.
Probably stemming from Argibay’s critical view of the AFSCA media watchdog, justices said that the institution charged with implementing the law should be independent from the government and pressure groups.