December 10, 2013
Questions remain regarding compensation
The Supreme Court’s ruling on the Broadcast Media Law puts the debate over its constitutionality at an end, but leaves open a question over which strategy the government will take up in compensating the Clarín Group for forcefully taking away its still-valid broadcast allies, as justices ordered.
Justices Ricardo Lorenzetti, Elena Highton de Nolasco, Enrique Petracchi and Eugenio Zaffaroni said in their ruling that the way to protect Clarín’s rights after the ruling would be through compensation, but they didn’t specify further. On the other hand, Justice Juan Carlos Maqueda considered compensation inappropiate, and said the government should wait for the licences to end and only then start applying the law.
Court sources told the Herald that justices likened compensation figures to what would be paid during an expropriation. Lawyers made it clear to the Herald that the process would not be an expropriation per se, but would have similarities to one.
AFSCA media watchdog head Martín Sabbatella was also clear on this point yesterday, vehemently insisting that “Clarín’s properties will not be expropriated, and no one wants to seize control of the company.”
Two requirements need to be fulfilled for an expropriation to happen. A law has to be passed by the Lower House and Senate specifying the assets to be expropriated, and the company must be paid. The amount is decided by the government through an evaluation tribunal, and if an agreement is not reached, the expropriated company can file a suit. The state has two years to pay the amount from the moment the law is passed, and if the payment is not made, the law does not take effect.
“Even though the state owns the broadcasting licences, preserving press freedom is what’s important,” lawyer Daniel Sabsay told the Herald. “The compensation might satisfy Clarín, but leaves the society with one less media group and a bad judicial precedent. The government can pay the media to be silent, leading to the existence of only pro-government outlets.”
In November 2012, Sabatella said that the government would put licences of lesser value up to tender so as to “cause the least possible economic impact.” This would lead the state to choose which licences to tender arbitrarily, instead of tendering all of them until the maximum amount is achieved.
Sabatella said then that the government would appoint an official appraiser to determine which of the company’s assets can be tendered and start a public tender process. Once the offers are received, Clarín would have to decide whether it accepts the offers or not.
“Based on the ruling, the state can do whatever it wants regarding the media,” lawyer Andrés Gil Domínguez told the Herald. “Media groups like Clarín can only claim compensation in the future if they can prove they suffered damage. This doesn’t take property rights or the American convention into account.”
Even the process to assess the value of the licences would be similar to an expropriation, as it would also be led by a tribunal. Whether the Planning Ministry’s appraisal tribunal, which values assets in an expropriation, would also be used remains unclear.