Martín Becerra. Professor at the National University of Quilmes, the University of Buenos Aires, and Independent Researcher at the National Scientific and Technological Research Council (Conicet), Argentina.*
Guillermo Mastrini. Professor at the National University of Quilmes and the University of Buenos Aires, Argentina.*
After a four year legal process, in October 2013 the Supreme Court of Justice of Argentina issued an opinion that declared the Audiovisual Services Law, approved in 2009, as constitutional and fully applicable. The appeal was initiated by the Clarín group, which considered that the law 26.522/09 affected its acquired property rights and infringed freedom of expression.
Six out of seven supreme judges determined that the law did not infringe freedom of expression, and a narrower majority of four pointed out that affecting economic rights was not unconstitutional in this case.
The Court’s opinion is meaningful because it establishes jurisprudence of the highest level on the concept of freedom of expression. The verdict considers two dimensions of freedom of expression: one of individual nature, based on the personal right to voice ideas and from which the proprietary rights derive, and another social or collective dimension by which the right to exercise the overall population freedom of expression must be ensured. In a time marked by the centrality of media, the Supreme Court states that freedom of expression and the dissemination of ideas are indivisible. It follows the importance of a legal regime applicable to media that can guarantee both matters.
The Supreme Court did not assess the quality of the Argentine Audiovisual Law, since that is, as the judges pointed out, something legislators should do. It emphasizes instead that the law 26.552 “intends to favor competitive and anti-monopoly legislations to preserve such basic rights for democratic life as freedom of expression and freedom to information”. The SC analyzes if the law is proportioned and reasonable according to legislative will, obeying to the separation of powers.
The verdict settles on the need to promote and guarantee a robust public debate as defended by the American constitutionalist Owen Fiss. For that reason, the Court points out that the guiding principle the Audiovisual Law intends to ensure is the plurality of voices, and that the State has the right to establish as many limitations as necessary to media concentration without affecting the existence of the sector companies. One of the key subjects of the verdict is the Supreme Court’s distinction between profitability and viability. The Court indicates than even when the law can affect profitability (and in fact it recognizes the companies’ right to make an economic claim for any losses that the law may cause), it has not been proved that the deconcentration process affects the companies’ continuity, for which it does not affect their freedom of expression either.
In this way, the verdict acknowledges a main issue like the specificity of the communication sector, whose diversity should be especially protected since it is the cornerstone of a democratic society: “In communications, unlike other financial markets, concentration has social effects that show in the right to information, a basic good of individual liberties”. And it continues: “The restrictions on the patrimonial order strictly are not disproportionate compared with the institutional heft of the objectives of the law”.
The law now needs full implementation. For that, as the Supreme Court warns, it is essential that those who have the responsibility to apply it respect the legislators will.
After the Court validated the constitutionality of the audiovisual regulation, the Clarín group presented, under the law’s terms, an adjustment plan in which it states its intention to divide itself in six units with no corporate relationships among them. The applying authority (Afsca) gave the green light to the proposal and started almost all the remaining adjustments, which will continue throughout 2014. There is one group on which Afsca hasn’t issued a verdict yet: Telefónica, the main conglomerate of the open TV market which, on the basis of the Audiovisual Law, cannot exploit licenses because it controls one of the public landline telephone concessionaires.
Adjustment processes are a major change. For the fist time in the history of Argentina, concentrated media groups are obliged by law to get rid of licenses and to divide formally in economic units in order to moderate their presence in the audiovisual sector. However, the government’s disposition and the regulatory faculty of the Argentine State combine with the power pressure of media groups. In several occasions (particularly in the interior of the country) the adjustment consists on an organizational reengineering that shares out future societies among present shareholders. That causes criticism by civil society actors, which hoped for open opportunities of participation and access to licenses for non-profit organizations as a result of deconcentration. With the implementation of the audiovisual law, these organizations are still postponed.
The adjustment process should be controlled by the State, which according to the law has the obligation to ensure that neither partnership bonds nor anticompetitive connections exist among future societies derived from current groups. If the adjustment process is fulfilled in terms of the law, the Argentine audiovisual media system will have more licensees, but these will continue to be major business people, although there will be no more large conglomerates like Clarín or Telefónica.
In this way, adjustment processes summarize a set of innovative aspects, for one part, but also the limitations of the law and state capability (by means of the Executive, Legislative, and Judicial powers) to affect the concentrated proprietary structure of the media system. These processes are of great interest in the Latin American region, where several trials are taking place through different strategies to modify a consolidated structural and historical situation of a few extremely powerful groups. What is now at stake is the productivity of the legal regulation and of the political decision to alter this structure and, furthermore, to make this historically reactive systems to open the entrance to new social and economic actors.
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* Integrante del Comité Editorial de OBSERVACOM.