December 7, 2013
More of a challenge than a victory
For decades, the Argentine media market worked under an unquestionable premise, willingly accepted by different governments: Clarín was too big to be regulated. Several attempts to modify broadcasting rules in almost 30 years of democracy contributed to the belief that this statement was more than an urban legend. In what may very well mean a sea change for our political eco-system, the Supreme Court ushered in a novel proposition yesterday — the giant can be controlled.
As soon as the sentence was known, Kirchnerites and their media friends burst out in celebration over what they consider a landmark on the road to “democratize the word” or, less poetically, a key victory in the war against their number one enemy.
It would be a mistake, however, to see yesterday’s Supreme Court decision as the final word in a debate which has framed political discussions throughout the last five years.
The sentence handed down by the justices represents a milestone for this seemingly never-ending issue. But it also marks the beginning of a new set of challenges for a government which still has to prove it actually wants to “democratize” Argentina’s media market.
The one-sided state-owned media under Kirchnerite management, along with the lack of a fair and transparent public advertising policy — sins shared, to a greater or lesser extent, with Buenos Aires City Mayor Mauricio Macri, Córdoba Governor José Manuel de la Sota, Buenos Aires Governor Daniel Scioli and almost every governor — are only two examples of what still needs to be done. Moreover, the Media Law is filled with important measures to promote diversity, public control and transparency in what is a sensitive market. It’s little wonder, then, that academics from across the globe have praised the law. But these measures were put aside to fight the mother of all battles against the enemy Clarín.
While key antitrust measures of the law were blocked by the courts starting in 2009, there was no legal impediment to executing other clauses. As a consequence, the obstinate focus on the country’s top media conglomerate discouraged some of those who celebrated the law’s approval in 2009 or, at least, favoured the idea of setting limits on the dominant position so obscenely exercised by Clarín.
On the other hand, the four-year delay in climbing to the step reached yesterday is conclusive evidence of the power wielded by this media colossus. Only a handful of Western media companies can be compared to such a dominant actor — a power built with the complicity of several governments, including Néstor Kirchner’s. Even though some media empires, like Globo in Brazil, Televisa in Mexico, Prisa in Spain, not to mention outlets owned by moguls Rupert Murdoch and Silvio Berlusconi, have a higher market value than Clarín, none spread its tentacles so wide. The Argentine media group assembled a diversified network which not only includes interests in TV and radio stations across the country, but also a cable-television system, an internet service provider, several newspapers and magazines, a news agency, a film producer, cable channels, a newsprint manufacturer, agri-business and websites, among others. All in all, it managed to reach a singular position both thanks to its undeniable merits understanding (and promoting) the Argentine middle-class’ “common sense” (widely considered “the people” in Clarín’s vocabulary) and its coercion which pushed governments to perpetuate reliance on the media company’s support.
As far as power is concerned, everyone who gains it, uses it. A certain consensus can be achieved even with Clarín’s media and politically protected friends. The group has not been particularly discreet in using its gained power: it made many enemies throughout the decades, from left to right, from financial newspapers to popular ones suffering from unfair competition policies, from small cable co-operatives forced to close their doors to rival moguls, from Menemite politicians to human rights organizations. Even the US Embassy let slip its concern about the way “Clarín’s dominant position” affected the interests of US TV signals.
In the beginning, the Kirchnerite strategy took on this battle with a smart look at the circumstances, a move which placed Clarín on a defensive it had never experienced before. There is no doubt that a strategy was needed to fight this battle and, above all, strong and prestigious allies, which the Kirchners had no problem finding domestically and abroad.
Four years after it was approved, the Supreme Court, which shares responsibility for this inexplicable delay, declared the entire law to be constitutional. An appeals court, made up by at least one judge who had reasons to be thankful to the conglomerate, had previously issued a ruling which was so biased and contained such archaic ideas of freedom of expression, that looking at it now it’s unclear whether it helped, or hurt, Clarín’s claims. Gustavo Arballo, a lawyer and law professor at the University of La Pampa, wrote for the Herald that the appeals court transformed the economic principle “too big to fail” into the legal nonsense “too big to regulate.”
The adjective “dogmatic” was repeated in various paragraphs of yesterday’s ruling. The justices preferred not to attribute dogmatism to the text of their colleagues in the Civil Appeals Court but they did apply that adjective to the arguments of Clarín lawyers and an expert, which were adopted wholesale by the second-instance justices.
The Supreme Court made a key decision, but the war has not ended. Martín Becerra, a media market analyst and communications professor, predicts low-intensity warfare both in administrative and judicial appeals. Nobody can claim to be surprised if one or more judges take to the stage and try to take on a part of the law over the next few hours.
Furthermore, Clarín has indicated that it will appeal to international tribunals. That will not prove easy, given that the text of the majority vote of the justices duly cites the jurisprudence of the Inter-American Human Rights Court, apart from the fact several European diplomats recognize that the Argentine media law is not very different from its counterparts in countries with a long tradition of progressive communication policies.
Regardless, President Cristina Fernández de Kirchner has (only) two years left. She now has a widely praised law in her hands — a unique opportunity to set a precedent for a democratic communication policy the likes of which Argentina has never seen.
But if instead the president uses the ruling to promote her media friends and abuse state power against the spirit and clauses of the constitutional Broadcasting Law, then Clarín will have more chances to keep its exceptional power. No opposition leader seems to be ready to tackle the giant and 2015 is right around the corner. This also seems to be more than an urban legend.