Argentina’s Media Law: After Four Years of Fighting, the First Round is Over

CGCS visiting scholar Dr. Valentín Thury Cornejo overviews the outcome of Argentina’s media reform battle. Dr. Valentín Thury Cornejo is a Researcher at the Argentine National Council for Scientific and Technical Research (CONICET). He also teaches Constitutional Law at Austral University and Argentine Catholic University, both of them at Buenos Aires, Argentina.

Last week, Argentina’s media regulator, the Autoridad Federal de Servicios de Comunicación Audiovisual (AFSCA), approved a plan presented by the media conglomerate Grupo Clarin that would break up Clarin’s operations into distinct companies. Under this proposal, which was drawn up by Clarin last year after it lost a four-year-long legal battle against the Government, the conglomerate will have six months to reorganize its radio and television outlets into half a dozen independent companies. As Argentinian regulator Martin Sabatella stated, “We are moving toward a much more plural, democratic and free panorama of audiovisual services, with no one owner imposing conditions and an agenda on other news outlets.”

Over the past four years the regulation of media markets, passed as bill No 26522 in October 2009, has been reduced to a political battle between the government and Clarin. While the government and Clarin were amiable during the first year of Argentinian President Cristina Kirchner´s first term, in the middle of 2008 they were on opposing sides of a battle on agricultural export taxes. The government’s side inevitably lost, leading the government to focus its reformist efforts on the communication sector. Under the slogan “Clarin miente” (Clarin lies), the government tried to change the media market by favoring its private allies, undermining conservative groups, and powering a system of public media working on the government’s behalf.

The battle against Clarin and media market reform were thus intertwined from the outset and not easily separated. As in past battles the government has pursued, ambitious structural reforms targeted identifiable enemies and had the necessary appeal to amalgamate a coalition of proponents. High ideals and a muddy political war commingled, leading to a situation where nuances were extremely difficult, and the confrontational nature of the situation obliged everybody, including analysts, to decide which side they were on.

Passing media bill No. 26522 was central to the government’s strategy. Small players in the media market (such as cooperative associations and community radios), academics and social reformers had long awaited reforms on regulation that was enacted by the military government in the seventies. The media bill united these stakeholders’ efforts, creating a strong constituency that legitimized the government’s aspirations, recognizing a full set of media and expression rights founded in updated international conventions and treaties. The bill itself limited private participation in the media, reserving a large part of the spectrum for social sectors and the State.

Initially, the political opposition tried to stop the full bill because of procedural irregularities but the Supreme Court upheld it in June 2010. Even prior to June 2010, courts already played a large role in determining the outcome of this media reform battle. In December 2009, the Clarin group sued to stop the bill’s provisions that obliged Clarin to dismember its conglomerate. At the beginning of 2010, a district court granted Clarin an injunction that put the reform bill on hold,  causing a stir about the organization of judicial power and the slowness of its procedures. Pressure mounted and the Supreme Court put an early expiration date on the injunction, forcing the government to wait anxiously for December 7th, 2012 to implement the bill. Before December 7th, however, the Supreme Court created conditions to grant a last minute extension to the injunction, angering the government. The government´s response was a full reform of the Judiciary in 2012-2013. Shortly after this reform, the Court of Appeals declared some parts of the law unconstitutional. A few months later in October 2013, this decision was reversed by the Supreme Court.

In its over 450 page decision, the Supreme Court reasoned that the conflict over the reform was primarily political and allowed the reform’s implementation. The court used a broad standard to control legislative policies, giving the government discretionary powers to regulate the structure of the media market. The decision accepted that the interpretation of the principle of freedom of expression must transcend the classical “individualistic” frame.  Relying on the jurisprudence of the Inter-American Court, the court’s ruling underscored the importance of the public’s right to be informed as a “social” aspect of freedom of expression that must be balanced against the “individual” right to freely express your thought and conduct a media company.  The equilibrium between these two perspectives leaves, in the Court’s opinion, a lot of space for legislative and executive intervention. Despite the length of the decision, the Supreme Court chose to not go into in depth details or peruse the disputed context in which the law was already being implemented (e.g.: the media regulator was supposedly independent from Government but was strictly aligned with it).

The government considered the decision a triumph, as it forced Clarin to move forward and reorganize its media conglomerate. For academics and analysts, now the real battle to shape Argentina’s media structure beings. A lot of questions remain because institutional construction was not a key objective of the bill. In the upcoming years issues such as the independence of a regulatory body, the interventionist powers of the government, the reservation of spectrum for social actors, and the subsidies required to use it will be decided. So far the government’s approach has been “dismantle Clarin now, figure out everything else later,” which is an approach based on trust and the accumulation of regulatory power that has not been keen on self-restraint. The agonistic stage has passed; an architectural approach is needed in the next round of changes in Argentina’s media environment.

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