December 10, 2013
ANALYSISThursday, October 31, 2013
The ruling, the roll-out and the future
The Court’s decision is exemplary, now the government must follow through
Argentina’s Supreme Court on Tuesday ruled in the case filed by the Clarín Group in 2009 against the state that sought a ruling of unconstitutionality for articles 41, 45, 48 and 161 of the Broadcast Media Law. After a complex case that stretched over four years, with many ups and downs, the top court’s ruling repeals a decision by the Appeals Court and declares the Media Law valid for all industry actors in our country, at the same time making the government responsible for the application of the Media Law in its entirety, in fairness and regard for due process.
Furthermore, the Supreme Court’s ruling adds, in good judgment, details that should rule over public management, which were not debated in this case, by contending that the use of public media through governmental tools, as well as the discretionary nature and the lack of transparency, are as detrimental to freedom of speech as the concentration of media ownership.
The ruling orders the implementation of the Media Law in its full spectrum; moreover, it determines that Clarín must comply immediately, since the compliance deadline expired on December 28, 2011 — a little less than two years ago. As such, the ruling is reasonable and comports with everything the Court had decided before, especially in 2010.
The ruling also sets obligations for the government, such as full abidance of the law — something the current administration has shied away from so far, whether for lack of political will or other reasons, chief among which are the delays in different judicial sectors and the behaviour of opposition parties.
While ratifying the constitutionality of the Media Law and defending collective and individual angles regarding freedom of speech, the top court’s ruling also determines a number of moves that the government is forced to take and has not yet done so.
The Supreme Court’s decision comes as a solid and thorough ruling, referencing the Inter-American Commission of Human Rights, legal frameworks on freedom of speech from the Organization of American States and United Nations, the European Commission of Human Rights, constitutional experts such as Owen Fiss (who had been asked to appear before the court by both parties during public hearings) and a vast legal doctrine.
This is a historical ruling, to which we’ll likely turn hundreds of times to study, research and teach in universities. This pivotal actor of current Argentine politics, that the government itself has criticized several times, rightfully or for no reason, has done an impeccable job, a politically worthy high-quality job.
The text of the ruling reflects an excellent grasp of the necessary level of technical depth. Moreover, its authors are fully aware of the political impact and cultural and political ramifications — both wanted and unwanted. Among some of its critical points, the ruling maintains that the concentration of media ownership has a direct impact on freedom of speech and, therefore, it must be regulated specifically. Hence, it revives and takes on one of the key debates of the Court’s public hearings, which was even highlighted by one of Clarín’s amicus curiae.
As regards the business angle, the ruling is highly critical of the depositions by business experts and Clarín’s own filings. The court contends that the group has failed to prove how the implementation of the Media Law curbs Clarín’s freedom of speech and strongly asserts there should be no confusion between “profitability” and “sustainability.” Regarding the issue of licences as “acquired rights,” the Court strongly determines that “no one has the right to demand protection of an individual right when faced with a collective right.”
In a first reading, it is possible to see that the Supreme Court relied heavily on the public hearings and even on the presentations given by some of the participants. The “discursive” outcome included a flimsy defence by the Clarín Group and its impossibility to prove that a dent in its “profitability” would also mar its right to information and its freedom of expression. The text repeatedly refers to the information presented during the public hearings and it patently shows that the Media Law’s main goal is not to have an effect on Clarín’s interests but rather sets a regulatory framework which is meant to be equal and just for all members involved.
In its decision, the Court supports the consituttionality of the articles that establish limits to the multiplicity of licences, and, above all, on the cross-ownership of broadcast television and cable-television providers, an aspect on which the debate remains open. But it goes further, establishing that Clarín must adhere to the law and, in case it cannot sell its companies at a market price it can/must be compensated.
It is clear that this will be seen as a triumph for the government and its allies, as well as for those who worked and advocated for years toward guaranteeing a regulation that would overcome the de facto standard and conditions that favoured concentration and foreign ownership, which were endorsed by reforms introduced during the presidency of Carlos Menem.
But the Court also leaves the door open to a complex environment in the future, if the current mechanisms remain in place, maintaining the uneven and discretionary allotment of public advertising and favouring groups tied to the government as well as the government in power (a historic trend that is very evident in the present day) in public media, which are owned by the state and not the government.
Just as one may argue that the law was not anti-Clarín and that it must not be appropriated by a particular collective for its own interests, it’s also necessary to emphasize that the delay in its integral implementation is the responsibility of the current government. However surprising or unexpected, we found out about the constitutionality ruling before the approval of the Technical Frequencies Plan. This is a clear demonstration that Tuesday’s developments do not resolve anything more than the judicial litigation started by the Clarín Group weeks after the law was approved, with the objective of delaying its application until a change in the political scenary came around, which it has not yet.
But the LSCA is much more than Article 161 or the four that establish the regulation on licences and licencees, now ratified by the Supreme Court. The demand of an integral, inclusive, democratic policy that avoids arbitrariness and brings a halt to the utilization of public resources to sustain favourable media is one of the best aspects of the norm.
And taking it forward through a series of public actions would be the best way of honouring that movement and responding to the Court’s clear demand.
Now, just as many of us were surprised by the content of the ruling, not only due to its general result — and more precisely — due to its content and relevance, it’s hard to imagine what whill happen next. On Tuesday evening, AFSCA head Martín Sabbatella expressed he would carry on with the adaptation process that was frozen in December last year. The Clarín Group released a statement that was very critical of the decision, repeating arguments that its independence and freedom of speech are affected, with the peculiarity of supporting their arguments with the same authorities cited by the Court in its ruling. Clarín announced it would continue litigation both in the country and abroad.
In that vein, certain prestigious researchers (such as Martín Becerra and Gustavo Arballo) argue that the ruling allows for a future scenario of near permanent conflict, whose cornerstones would be economic appraisal (the compensation that the Court’s decision grants) and the discrimination of treatment dealt by the government on different concentrated groups, which is harder to demonstrate in the long term.
The law turned four-years-old in October, and the celebrations came with Tuesday’s ruling. But its skewed implementation must be left behind, and we must move forward in terms of effective fulfillment, toward the diverse media scene that the norm configures.
Santiago Marino is the director of the University of Quilmes Cultural Industries Masters programme