“…what is at stake is the design of a long-term public policy which should be planned in such a way as to ensure that it benefits society as a whole and is not subject to electoral variations…”
Bernadette Califano*/November 2015.
On 10 December, Argentina will have a new government that will have to choose how to move forward in terms of communications polices. Whoever sits in the presidential chair will have a Law on Audiovisual Communications Services (LACS) that has been a model for other directives in the region and represents one of the most significant legacies in the field of media regulation since the country’s return to democracy in 1983.
The audiovisual law was passed by a majority in the National Congress in 2009 after an unprecedented participatory discussion. The law received the support of hundreds of social organizations brought together in the Coalition for Democratic Broadcasting, which had been demanding the repeal of the broadcasting law implemented by the military dictatorship and advocating in favor of a new regulatory framework that includes 21 basic points for the right to communication for some time.
Since the law was enacted six years ago, there has been a major confrontation between the government and local media conglomerates (particularly the Clarín Group), and an intense and necessary public debate about the role of media in society. The application of the law has been slow because of the extensive legal questioning to which it has been subjected, among other reasons, and it has failed to meet the high expectations that were initially held regarding its implementation, especially with regard to the deconcentration of the media market.
The intention here is not to offer an assessment of the implementation of the law, but rather to focus on what will happen after the presidential hand-over. Here I should make it clear that this article was written a week before the second round of the presidential election to decide between the official candidate for the Frente para la Victoria (the Front for Victory) headed by Daniel Scioli, or the leader of the opposition ‘Cambiemos’ (Let’s Change), Mauricio Macri, as to who will become the President of Argentina for the next four years.
Neither candidate has established a clear agenda with respect to public communications policies. The issue was not explicitly included in their election proposals (which can be found here and also here). Neither was the issue mentioned in the candidates’ historic debate.
If the ruling party candidate wins, it is expected that there will be a certain level of continuity of the policies adopted by the Frente para la Victoria in recent years in the area of audiovisual communications. Nevertheless, the enigma remains, as recent history shows us that regulations for media systems may vary within the same political coalition, as happened in the periods 2003-2007, 2007-2011 and 2011-2014. As such, the issue should be analyzed in the context of broader political-institutional and situational variables.
In contrast, the candidate of the Cambiemos alliance has criticized the audiovisual law at some of his campaign events and announced that it could eventually be amended if he were elected president, “so as to have a law that respects the challenges of the 21st century, greater access to information, greater freedom of expression, including the Internet.”
While we understand that any law can be improved, we also consider it appropriate to point out some points that any future government should consider when designing its public communications policy.
The regulatory text of the LACS expresses a paradigm based on the human right to freedom of expression which has been praised by the United Nations Rapporteur for Freedom of Expression and was highlighted in the 2009 report of the Special Rapporteur for Freedom of Expression of the Organization of American States. Likewise, in the judgment issued by the Supreme Court in 2013 in the case initiated by the Clarín group, various principles of the Inter-American System of Human Rights were included from both an individual and collective perspective to ratify the constitutionality of the law and to establish jurisprudence regarding the importance of State intervention to promote and protect this right. In this sense, attempts to change the law according to such reasoning, or even to insist on the possible self-regulation of the media market, are completely baseless.
Moreover, the next president will have to face the fact that no political party will have its own quorum in both houses of the National Congress from December 10 onwards. Any changes to the law will require cross-party consensus, which it goes without saying will be difficult to achieve (suffice to recall that many PRO and UCR legislators, who now belong to Cambiemos, were either absent or voted against the audiovisual law in 2009). Ernesto Sanz, the driving force behind this alliance, said that they would not hesitate to resort to decrees of necessity and urgency (DNU) for changes that they cannot obtain in the legislative chamber, which would mean a fallback to a disastrous regulatory tradition in terms of radio and television in Argentina.
Furthermore, it would be best to avoid the risk of recurring to arguments supporting “all powerful” laws, as happened in the debate that took place over the LACS. This regulation oversees the cultural activity of audio-visual media services providers, which includes television and radio broadcasting regardless of the medium used and with or without subscriptions. However, its jurisdiction does not extend to the press or telecommunications. It is true that the rapid development of the Internet poses increasing challenges for developing comprehensive public policies that cover a wide variety of aspects (legal, economic, infrastructure, sociocultural, users’ rights, etc.). It is also true that there are pending issues with respect to the regulation of access to public information at the national level and the distribution of official advertising. But in each case, these are regulations that require a level of detail and specificity that no «macro-media law» can include.
More recently, questions have been raised about the role of the Federal Authority of Audiovisual Communication Services (AFSCA), which is responsible for enforcing the law. Some have suggested that there is a need to intervene in this body and to merge the regulatory authorities created by the LACS and the Argentine Digital Law into one institution. Although the latter law authorizes telecommunications companies to provide audiovisual media services and legally facilitate a converged market, this would also require a broader discussion about whether or not to have a macro regulating body, particularly when effective adherence to both laws has still not been achieved. In any case, we must also remember that this is the first time in history that the regulatory authority has had representatives from the different political parties elected to a four-year term (with a difference of two with respect to the mandate of the Executive Branch) in an effort to prevent the posts held being subject to electoral swings.
Although full implementation of the LACS is still pending, it is important not to return to the path of recent years. In this regard, we should highlight the development of Open Digital Television and the installation of transmission stations in different parts of the country; the federal policy of encouraging audiovisual production along with the ‘Polos’ program and the open digital audiovisual content bank; the creation and operation of new agencies such as the Ombudsman’s Office; the preservation and digitization of audiovisual and sound material pertaining to Channel 7 and Radio Nacional through the historical archive of Argentine Radio and Television; and other important initiatives.
The next government should continue the transition to digital television, with the analogical switch-off scheduled for 2019, and with the organization and redistribution of the spectrum made in such a way so as to fulfill the promise of setting aside a 33% share for nonprofit sectors, as established by the Law on Audiovisual Communication Services. Furthermore, the process of adhesion to the law of the various groups that exceed the concentration limits for permitted licenses is still pending. In particular, a settlement needs to be reached with regard to the status of the Clarin group, which is currently suspended due to the issuing of two injunctions (one in the context of a case instigated by the group’s journalists, the other in the case that the multimedia organization itself is instigating), a situation that will continue through February 2016.
In short, what is at stake is the design of a long-term public policy which should be planned in such a way as to ensure that it benefits society as a whole and is not subject to electoral variations in which the State intervenes in order to protect the right to communication and freedom of expression. This will involve interaction with a broad map of social actors who can no longer be ignored in the creation processes of policy development.
*The author holds a doctorate in the Social Sciences from the Universidad de Buenos Aires (UBA). She is a researcher on communication policies and media regulation (UBA/CONICET/UNQ) and a professor at the School of Communication Sciences (UBA). @bernacali