Facundo Franco*/Uruguay, May 2016
After assuming the presidency of Uruguay for the second time in March 2015, Tabaré Vázquez announced that in order to regulate the Law of Audiovisual Communication Services (LSCA) approved by Parliament in the final days of 2014, he would wait for the Supreme Court, the country’s highest judicial body, to rule on the constitutional challenges to the law. After a long process of analysis which was partly delayed by changes in the composition of the Court, the body made up of five judges began analyzing the 28 legal challenges that had been filed by organizations and businesses linked to the commercial audiovisual media sector. The first ruling that was issued was in response to the appeal made by the international pay-TV company Direct TV, which requested that 27 of the 202 articles of the LSCA be declared unconstitutional.
In its first ruling, the Court declared one complete article to be unconstitutional along with parts of three others. The article declared unconstitutional in its entirety was No. 55, which placed limits on the number of customers that a subscription television operator may have at nationwide level, a category that in Uruguay only includes Direct TV, as the rest of the cable operators are only authorized to provide services at the local level. Said article would prevent the total number of subscribers of a company to exceed «25% of all households with subscription television at the nationwide level.» In a majority ruling, the Court declared that the article «undermined the legal standing” of the company as it would have an impact on rights that had already been acquired, given the impossibility of reducing a company’s customer base that had been built up under different legal conditions.
The Court also ruled on Article No. 39, which states that «events of general interest» must be transmitted by free-to-air television. Commenting on these events, the LSCA explicitly referred to «official activities by the national football and basketball teams in defining matches of international tournaments and qualifying matches for the same.» However, at the same time the LSCA also left open the possibility that the Executive Branch could include «additional events» under this clause, a subparagraph that was unanimously declared unconstitutional by the Court, which considered it to be «an provision contained within the regulation, which, without question, violates the rule of law.»
In a majority ruling, the Court also found paragraph C of Article No. 60 to be unconstitutional; this states that at least 30% of domestic audiovisual production that is broadcast must be made by independent producers and sets minimum periods according to week and time for programming transmission. For example, the paragraph states that at least two hours of transmitted weekly programming should be set aside for «first-run TV fiction or premiers of full-length feature films» and that such broadcasts should be between 19.00 and 23.00 hrs. Although this was in reference to the constitutionality of so-called screen quotas in order to encourage domestic production, for the Supreme Court such content regulation as provided for in paragraph C of Article No. 60 was deemed excessive and contrary to freedom of expression.
For non-compliance with «due administrative procedure,» the Supreme Court also unanimously declared unconstitutional the second paragraph of Article No. 98 of the LSCA, which states that if the holder of a broadcasting service license does not permit an inspection of its premises, the transmissions of said media service may be suspended.
However, the Court ruled the remaining articles and provisions to be constitutional. For example, and at a general level, the Uruguayan Supreme Court found that the LSCA seeks to «promote freedom of expression and communication in its collective dimension» and citing the judgment of the Supreme Court of Justice of the Nation of Argentina on the 29 October 2013, it also stated that «unlike what occurs with the freedom of expression at the individual level, where the State’s regulatory activity should be minimal, the collective dimension requires active protection on the part of the State.»
Specifically, the Court considers it constitutional to set limits on advertising aimed at minors as established by the LSCA in Article No. 33, as it is also to compel subscription TV services to include in their programming grids the broadcast signals of free-to-air television channels (must-carry). The Court also found that Article No. 56, which prevents the cross-ownership of television services for subscribers and telecommunication services, is constitutional, as is Article No. 116, which requires cable operators to carry a transmission signal in their schedules containing local production content. Another provision endorsed by the Uruguayan judiciary is the creation of an Audiovisual Communication Council as the body responsible for enforcing the LSCA, and which will be composed of a representative of the Executive Branch and four other members appointed by Parliament by special majority. Among the other articles of the aforementioned law that were declared constitutional, is one that establishes a maximum of 15 minutes of advertising per hour (including non-traditional advertising), and those articles that refer to the system of sanctions established by the LSCA.
In the case of the provisions relating to free electoral advertising, the issue was the subject of two rulings that have so far been issued by the LSCA. According to the LSCA, free electoral advertising will represent 60% of the total time devoted to advertising slots per hour, and a distribution of 20% is expected among slogans presented as part of an election campaign, and 80% in direct proportion to the votes obtained in the immediately preceding election. An appeal was made regarding this article by the minority Independent Party, and in its second ruling the SCJ acknowledged part of this appeal. While the majority of the Supreme Court’s judges found that the form of advertising distribution established by the LSCA runs counter to the equality of political parties as established in the Constitution, it also dismissed the need for such articles to be approved by a Parliamentary special majority, as the issue was not one concerning electoral regulations.
According to the Uruguayan legal system, declarations of unconstitutionality are effective only for those who have lodged the appeal on which the judgment is issued. As such, in these cases, the provisions of unconstitutionality apply only to Direct TV and the Independent Party. However, it is expected that the government will carry out modifications to the LSCA in order to bring it into line with the legal interpretations of the Supreme Court of Justice.
* Journalist with a degree in Communication Sciences from
Universidad de la República, Uruguay