Full Version of the Opinion Piece by Silvana Giudici, President of Fundación LED
Published in the Diario Clarin September 6, 2013.
The public hearing at the Supreme Court concerning the Media Law was a meaningful input inthe public debate on freedom of expression and the consequences of curtailing it through restrictive regulatory frameworks
In that context, Fundación LED has produced a comparative analysis on the effects of such media law in the regional scenario.
Our comparison focused on the regulations in force in Ecuador and Bolivia, Perú, Venezuela and Argentina. Our first conclusion is that the Argentine Media Law is the most restrictive one in Latin America upon establishing frameworks regulating the radioelectric spectrum and setting terms within which current licenses must be adjusted.
Section 161 of Law 26,522 setsa one yearterm for disinvestment, while Ecuador´s new Communications Law provides for a progressive redistribution of radio and open television frequencies. Any licenses extinguishing within the one year term after the publication of the law are extended for up to another year at the most, until the Consejo de Regulación y Desarrollo de la Información y Comunicación (the council regulating and developing information and communications) establishes the procedure to choose a new concessionaire (Interim Resolution 11a).
The law enacted by Evo Morales sets a one year term until the new regulations become effective(Interim Resolutions, 1° I, II III), while expressly recognizing any vested rights of those holding current licenses.
Not even Hugo Chávez went that far. Indeed, the laws passed during his Administration fix no term for disinvestment (Ley Resorte [Law on social Responsibility in Radio and Television] and Ley de Telecomunicaciones [Telecommunications Law]). In Venezuela regulations respect the effective term of licenses or permits already granted, i.e., 15 years, which shall or shall not be extended at the discretion of the enforcement authority (Sections 21 and 73 of the Telecommunications Law).
In turn, the Draft Law which is being debated in Uruguay establishes a 5 year adjustment term. Peruvian regulations set no disinvestment term.
Regarding the use and management of the radioelectric spectrum, Rafael Correa has imitated the Argentine model and has devoted 34% of the former to community media. No Latin American (or worldwide) regulations have gone as far as establishing audience “quotas”, as is the case of Section 45 of the Argentine law establishing a cap on licensees equivalent to 35% of the country´s total population or subscribers, thus ignoring subscriber rights and the fact that users/consumers are free to choose regardless of any regulatory cap. Indeed, anti-trust laws must govern everybodyin general and shall in no case regulate mass media exclusively, as provided for in the OAS Declaration on Principles of Freedom of Expression.
Our comparison shows that no country has enacted laws providing for the asymmetries promoted in the media law passed during Mrs. Kirchner´s Administration. Our law, for instance, establishes permits to operate satellite television with just one nationwide license covering all the country´s territory, while restricting cable operators to 24 licenses to render services only in certain areas of the country.
This comparison does not try to conceal the fact that when it comes to regulating contents, both Ecuador and Venezuela are much more restrictive. The inclusion of a deontological code in Sect. 9 of Ecuador´s law and the creation of the “media lynching” offence (Sect. 10, subsect. j) impose sanctions on journalism, gagging the press and turning censorship into something natural. In Venezuela the Law on Social Responsibility in Radio, Television and Electronic Media considers demonstrations “violence” and, in consequence, bans live broadcasts.
In short, upon deciding on whether the Argentine law is or is not Constitutional, the Supreme Court shall have to take into account that, regardless of the fact that the radioelectric spectrum needs regulatory frameworks in order to guarantee greater diversity and broadcasting for all social sectors, such regulatory frameworks should never include provisions curtailing citizen rights or limiting freedom of press.
President of Fundación LED (Libertad de Expresión + Democracia)