“While the case is being processed by the Supreme Court, there are dozens of articles of the cited law that can be applied without any further regulations or that are subject to any legal challenges, the government, however, has not moved forward.”
Fabián Werner */ Uruguay, May 2015
In Uruguay, the fate of the Audiovisual Communication Services Law (ACSL) approved by parliament in December 2014, is now being played out in the courts. This is the setting after the lodging of several appeals of unconstitutionality, with President Tabare Vazquez deciding to postpone the law’s application until the Supreme Court issues its ruling.
A “barrage” of appeals of unconstitutionality against the ACSL were announced on 5 March by the El Observador newspaper, citing sources in the Supreme Court of Justice (SCJ) and subscription television companies. The news was published just four days after the inauguration of the new government led by Vázquez, who had stressed the importance of the new law during his first speech broadcast on radio and television, in which the President placed special emphasis on the progress represented by the ACSL, noting that regulation of those aspects that needed a complementary amendment had now been concluded.
According to the newspaper article, the “barrage” had already begun during that period, with sources in the private sector indicating that the number of appeals would exceed a dozen. This news was accompanied by signs of anxiety in the government, a few days later resulting in the announcement of President Vazquez of a pause in the legislative process pending the Court’s judgement on the appeals. “We’ll wait for the ruling of the Supreme Court and then decide the best way to move forward” Vazquez was reported as saying.
Thus, the battle of private companies to prevent the application of the ACSL shifted from the political to the judicial sphere leading to all sorts of speculation. But it wasn’t only the existing broadcasting license holders who turned to the courts to express their rejection of the new law.
What is under scrutiny?
The Independent Party, a minority group that has one senator and three deputies in the Congress, filed an appeal for unconstitutionality only against article 143 of the law, which provides for free advertising time in the media for political parties. According to the written argument presented by the IP, this provision implies a double violation of the Constitution: first, because it was not approved by the special majority required when it comes to electoral provisions, and secondly, because it violates the principle of equality, proportionality and also irredeemably affects “the very foundations of suffrage and the democratic system.”
The focus of the questioning by the Independent Party is because 80% of the publicity accorded to parties is to be distributed in line with the proportion of votes obtained in the immediately preceding election. The IP has estimated that if this article were to be applied, the party would receive 18,400 free minutes of advertising in the media, while the Frente Amplio (Broad Front) Party –which is in government and is the only supporter of the aforementioned law in Congress- will receive 152,000 minutes. According to the IP, “what is at stake is the quality of Uruguay’s democratic system.”
For its part, the subscription television company Riselco SA (Nuevo Siglo) also filed an action of unconstitutionality, questioning more than fifty articles of the law. Among other considerations, the written statement submitted to the Supreme Court indicated that the law violated the principle of equality and the rights to freedom of expression and information, freedom of enterprise, and legal and property security. Equality, according to Nuevo Siglo, would be violated because the proposed law would impose regulations on television and radio service providers, but not on those who offer Internet-based services.
The company also added its voice to the questions raised regarding the provisions of the law that regulate advertising aimed at children and adolescents, and rejected the obligation of operators to ensure that at least 60% of all content is domestically produced.
Furthermore, DirecTV also filed an appeal questioning 27 of the 202 articles that make up the law. Among other arguments, the company considered that the limitation established by Article 55 indicating that total subscribers must not exceed 25% of total households in the country, or 35% of households in those areas where other services are operating, would limit its potential for growth. It also rejected the article that would prevent it from providing data transmission services because (according to DirecTV) this would benefit the public telecommunications company Antel, which is not subject to the law in spite of providing IP-TV services.
DirecTV also challenged the articles in the law that would oblige it to transmit a minimum percentage of domestic productions, as well as those articles that would “expropriate” its transmission rights to general interest events, and those that would affect its freedom of expression and communication of thoughts due to the “intrusion” of the State in the contents.
The National Association of Uruguayan Broadcasters (Andebu), a business association that brings together 60 of the country’s audiovisual media companies, was the most adamant opponent of the cited law, and even accused the ruling party of trying to impose censorship as in the days of the country’s “authoritarian regimes“. Andebu questioned the constitutional nature of the law with respect to about 40 of its articles, especially articles 59, 60 and 61 which establish the minimum percentage of domestically produced content that should be transmitted by the audiovisual media.
Businesspeople also criticized that fact that license holders were being subjected to a communications project controlled by the implementing body, the Audiovisual Communications Council (ACC), and that any infringement of the new law would be dealt with via sanctions. According to the president of Andebu, Pedro Abuchalja, this “would mean that the Executive Branch would define how each media outlet expresses its content”.
No progress in the Court
Up to now no ruling has been issued by the Supreme Court with regards to the appeals for unconstitutionality, although at least one of these lawsuits (by DirecTV) has now been resubmitted to the judicial prosecutor Jorge Diaz, who issued a statement on the matter.
According to Diaz, there are five articles of the questioned law that infringe constitutional provisions, with another nine partially doing so (in terms of free enterprise, legal security and property rights, among others): the rest the law was considered to be legally sound. Following this declaration the Court will now begin to analyze the case, although no date has been set for when a ruling will be issued.
In the meantime, professors in constitutional law such as José Korzeniak or Daniel Ochs have voiced the opinion that the questioned law will pass the test of the Court and its legal status shall remain intact. “I would venture to say that this law will not be declared unconstitutional,” stated Korzeniak during a radio interview, explaining that “it is always the Executive Branch that remains in control and if it does so under conditions of abuse, it is right to act in this way.” He also added that “all communications media, particularly when run by oligopolies, traditionally resist any attempt to democratize their working practices.”
For his part, Ochs has defended the new law because it places the focus on the defence of audiences and assigns that role to the State. “What right is more important when we consider these issues? That of the public to receive good quality information regarding the progress of public affairs, or that of the advertiser or media owner to sell advertising space?”, asked the professor, citing a ruling by the U.S. Supreme Court when it rejected the legal arguments of TV operators: “Their rights are worth less, because the primary right is that of the public; we must be on the side of the public because we need people to be well informed, for otherwise (companies) might abuse the powers assigned to them, so damaging the democratic system”.
While the case is being processed by the Supreme Court, there are dozens of articles of the cited law that can be applied without any further regulations or that are subject to any legal challenges, the government, however, has not moved forward. Civil society has demanded that the process does not stop, but there has still been no official statement and the democratization of Uruguayan communications awaits the outcome of a slow-moving legal process.
* Coordinator of the Freedom of Expression Area of the Access to Public Information and Archives Center (CAinfo) and is the Director of Sudestada.com.uy.