In view of the recent ruling by the Supreme Court of Justice of Argentina establishing the Constitutionality of the different Sections of the Audiovisual Communication Services Law No. 26,522, which had been challenged, Fundación LED (Libertad de Expresión + Democracia) wishes to state its position.
We have repeatedly maintained that Court rulings must be respected as an indispensable mechanism for an effective rule of law.
Within that framework, while respectful, may we, however, express our disagreement with the ruling that was adopted and with some of the considerations on which it was based.
In this specific case, the Court has ruled that the Media Law is Constitutional by using arguments, which imply a new interpretation of the prestigious doctrine drawn up by this Court.
The obiter dictum in Whereas clause 74 says that the objectives of the Media Law would not make sense “in the absence of transparent public policies concerning government advertising, if the State, by means of subsidies, by placing official advertising or by assigning any other advantage, …the media turn into mere instruments to support a certain political movement or into a manner of doing away with dissent and plural debates of ideas. Just as if the media, instead of voicing and meeting the information needs of all sectors of society, became a space serving government interests…” Likewise, it goes on saying “it is of vital importance to bear in mind that we cannot guarantee that the purposes of the law shall be met if the enforcement authority is not a technical, independent body, protected against interferences both from the government as from other pressure groups.” It then points out that upon taking action, the authorities shall abide by the Constitution and the laws and “shall not discriminate on the basis of dissident opinions and shall guarantee citizen´s rights to access plural information.”
These considerations, expressed in the ruling, are evidently a message on the unenforceability of the Audiovisual Communication Services Law since no such conditions have existed in Argentina since the law was passed.
The fact that the government has constantly refused to discuss a law regulating the placement of government advertising, its arbitrary distribution—as the Supreme Court itself has acknowledged in its rulings in the Diario Río Negro and Editorial Perfil cases—using public media as the means to spread official thoughts and as a tool to disqualify the opposition, the lack of independent and suitable officials at the head of the enforcement agency (in which, further, some positions still need to be filled because the pro-government majority objects to the incorporation of a representative from the opposition), and, finally, the never ending reports filed by civil society organizations such as our Foundation or the Foro de Periodismo Argentino (FOPEA – forum of Argentine journalism) about the assaults on the media and on press workers, show that everything that the Supreme Court has identified as a requirement for a sustainable ruling is far from materializing in our country.
Additionally, as we have mentioned in our special report, Argentine laws are the most restrictive laws in the region regarding radio frequency spectrum regulations. This, together with all the above, has resulted in the development of a new State media monopoly in our country.
The Supreme Court itself has said that the Media Law makes sense upon compliance of certain guidelines, which are missing in Argentina. Given, therefore, that such non-compliance is crystal clear, the only possible interpretation is that in the current state of affairs the ruling and the law make absolutely no sense.
Under clear self-restraint, the High Court has resorted to the principle of no jurisdiction over facts or rights not invoked by the parties. The doctrine supported by the Court during more than a decade is therefore moving backwards, given that the Court had admitted the possibility of ruling over the constitutionality of a law ex oficio, as in the precedent “Mill de Pereyra, Rita et al v. Province of Corrientes” (2001).
We have noted not without concern that the value of freedom of expression implicit in this ruling is not quite the same as it was when it was established by this same Court at the beginning of the Court´s performance, upheld with greater zeal and perseverance since Democracy was restored, safeguarding the right to inform and give opinions when faced with the onslaught of Power.
We highlight, however, the robust arguments raised by Justice Carlos Fayt, who expressed his dissent based on Human Rights Treaties and on the Court´s extensive legal precedents defending Free Expression and Freedom of Press, and said “it is the duty of the Courts to protect the media so that there may be a plural debate on public matters, which is an essential assumption for a democratic government” (Dissent, page 352) while struggling to apply clearly rational criteria in the limitation of rights.
In our opinion, the ruling on the constitutionality of the above sections should have been analyzed in greater depth, not just on the grounds of the original legitimacy of the law in question, dismissing Plaintiff´s request without too many arguments. This is a major step backward in the defense of individual and collective rights.
Expressing the opposite view, Justice Fayt´s dissenting opinion was “the restriction imposed by Section 45, subsect. 1, par. b of Law 26,522 with no plausible justification, essentially alters the rights of Plaintiffs and is contrary to the provisions of Section 28 of the Argentine Constitution, whereby it should be declared unconstitutional.”
Justice Fayt´s dissenting opinion expresses that the limitation imposed by Section 45 (multiple licenses and a cap on the market share) is in open conflict with the “freedom to choose,” expressly recognized by Section 42 of the Argentine Constitution, and affects freedom of expression, provided for in Section 14 of our Constitution.
It is also important to bear in mind Justice Argibay´s opinion dissenting in part, who affirmed categorically “… Section 161 is a serious restriction of Plaintiff´s rights and a serious restriction on the exercise of freedom of expression, which is exercised in the framework of such licenses. Restrictions on freedom of expression are unconstitutional, save if the party defending such restrictions can prove that they serve a pressing purpose of the State which cannot be attained in any less restrictive way” (Whereas clause 30).
Similarly, Justice Maqueda, dissenting in part, expressed that any attempt at enforcing regulations on the media, even when trying to guarantee and promote pluralism and diversity, must always respect the duration of any current licenses. Fundamentally, in a democratic society no laws expected to foster a diversity of voices and to achieve media decentralized ownership should end up by getting confused with a measure exclusively aimed at punishing the editorial line and the information disclosed by a member of the media or a group of media (cf. Whereas clause 64 in fine).
Such considerations by Justice Argibay and Justices Fayt and Maqueda reaffirm a concept repeatedly upheld by our Fundación, that the state of affairs resulting from the biased enforcement of the Media Law, the arbitrary use of state-owned resources as a mechanism to reward and punish, and the escalation of assaults on the media and media workers constitute a severe violation of Freedom of Expression in our country, limiting every time more the sources of information which citizens can access freely.
May we, at Fundación LED, once again express what we believe in: that the respect for and the protection of our fundamental freedoms, such as freedom to think, freedom of expression and freedom to free information, are the foundations of a true Democracy.