The new Media Law is one of the most controversial dramas to hit Argentina’s national stage of late. Grupo Clarín executives keep the audience divided: scheming monopolists or the last standing defenders of a free press? President Cristina Fernández de Kirchner delivers fiery monologues before the podium. Choruses of cacerolazos and a dizzying cast of executive cabinet members, Supreme Court judges, and media executives ring the central conflict between state and private interests. As the bitter dispute continues, each side claims to defend the multidimensionality of Argentina’s media, and therefore, its democratic integrity.
The Audiovisual Communication Services Law 26.522, known more simply as the ‘Media Law’, drafted by President Fernández and enacted in October 2009, intends to outlaw media oligopolies by limiting the size of private companies and extending access to state and non-profit media. Though it promises to bring change for the entire audiovisual industry, the most heavily hit—and most fiercely opposed—is Grupo Clarín, market leader and sharp critic of President Fernández’s leadership. The conglomerate’s position grows increasingly complicated as the days count down to 7th December, when the court injunction partially suspending application of the law expires. Grupo Clarín has chosen to defy the government’s deadline for compliance plans. The papers buzz with speculation and the public holds its breath, unsure of what will ensue on ‘7D’.
The Advent of a New Media Paradigm
The Media Law represents a fundamental shift in philosophy away from that of its predecessor. Whereas the dictatorship-era broadcasting law that it came to replace regarded media as an industry, the new Media Law bids for media as a public good and a human right; the diversity, sovereignty, and accessibility of which contribute to the wellbeing of civil society.
The law originated from a 21-point proposal (’21 Points for Democratic Broadcasting’) created by hundreds of social, community, human rights, union, and indigenous rights groups.
President Fernández drafted a bill based on the proposal, which was debated in open ‘forums’ designed to solicit citizens’ feedback and submitted to Congress in August 2009. The Lower House made over 100 changes to the bill, which was approved after 16 hours of debate by a sizeable margin in the Senate. President Fernández de Kirchner signed the piece of landmark legislation on 10th October 2009.
More than three years later, the Media Law remains a contentious front-page fixture, starring in headlines counting down to ‘7D’. On the 7th December, Grupo Clarín and the government will find themselves officially on different sides of the law. The jury (or more literally, the judge) is still out on with whom the constitution stands.
Under the Media Law, powerful Grupo Clarín stands much to lose. During the Menem administration in the ‘90s, the corporation grew from a print-based company to a multimedia conglomerate that currently holds 41.88% of the radio market, 38.78% of the open-air television market, and 58.61% of the cable market. Under the Media Law, it (and every other media group) would be allowed a maximum of 24 cable and 10 radio or free-to-air TV licences, in comparison to its current 237 and 25, respectively, and a maximum market share of 35% of the audience at the national level.
Given the implications that the law’s application would have for Grupo Clarín, the group accuses the government of playing political hardball rather than championing pluralistic freedom of speech, as it claims. “This government can’t handle the existence of independent entities that can have an influence in society,” said Clarín’s newspaper editor Ricardo Kirschbaum. “It seems to me that the government simply wants to have political control over the media. And I think that what they’re trying to achieve is the beginning of a process that enables them to hold onto power indefinitely.” The government flatly denies harbouring its own power-hungry designs: “No one is closing, intimidating, nor prohibiting the press,” Casa Rosada General Undersecretary Gustavo López told the Argentina Independent. “We don’t want to replace Clarín’s centrality for another.”
The government, for its part, accuses Grupo Clarín of resisting an entirely legitimate law to defend its own dominance. “Why is the fight so big? Because when you talk about media, you’re talking about power. And the construction of public opinion is one of the central elements of power in any democracy,” López explained. “They’re more interested in politics than in the information.”
Immediately following the passage of the Media Law, Grupo Clarín filed an unconstitutionality suit based in two articles. Article 45 limits the number and type of licences as well as market penetration, and article 161 gives media groups one year to divest any licences that exceed article 45.
Grupo Clarín maintains that these articles are unconstitutional for two reasons. The first is a violation of private property – in order to use the state-authorised licences towards an operational television, radio, or cable station, they say, corporations must invest heavily. The group says if the government cuts short the appropriate duration of some of its licences to enforce the Media Law, Grupo Clarín will still be unable to recuperate the investment it made in those licences. The government says it plans to send assessors to establish a value that reflects all invested and accumulated assets. “Invested value will not be taken away,” declared López.
The second argument is that of retroactivity: because Grupo Clarín acquired many of its licences before the Media Law’s enactment in 2009, it says the law does not apply to current licenses—only those acquired henceforth. “This bill leaves the media in a state of absolute precariousness for not respecting the licences currently in effect, something that has not happened even in Venezuela,” warned a press release issued by Grupo Clarín upon the law’s enactment.
As it embarked upon the laboursome and time-consuming litigation process, Grupo Clarín won a suspension of article 161, protecting it from the one-year divestment deadline until the courts ruled. The suspension only applies to Grupo Clarín, but the Federal Audiovisual Communication Services Authority (AFSCA) chose not to enforce the articles in question at all, as a matter of fairness for Clarín’s competitors. The indefinite suspension has meant three years of lengthy legal battles for the government and Grupo Clarín, and the slow-motion implementation of the law for not-for-profit parties, whom the law professes to benefit in the name of human rights.
Time is very much of the essence, says López. “At the core, it’s a lie that Clarín wants to prove unconstitutionality,” he asserts. “What it wants is time.” He says the years of bitter legal warfare are merely a strategy to buy time. “What’s the problem if the court of first instance rules and it goes to the Appeals Chamber? We’ll be three years late. What does Clarín want? To be three years late so Cristina’s mandate ends [in 2015].” Grupo Clarín throws the blame right back with similar words: “The national government comes seeking to delay in a systemic way the advance of the core case, appealing to procedural obstacles.”
The case might have remained relatively dormant were it not for another judicial ruling: an expiration date for the current suspension of article 161. Last May, the Supreme Court decided to mark the thus-far indefinite suspension with a deadline -7th December- noting that six months should be sufficient for a judge to make a ruling on the constitutionality case.
Yet six months later, the case is no closer to resolution because there is no judge to issue such a ruling. The court of the first instance’s bench stands empty after the sitting judge retired at the end of 2009, leaving his post—and power over the Grupo Clarín case—wide open for a new appointment. The methods and motives of each would-be selection are bitterly disputed and allegations of unsavoury political manoeuvres abound. Meanwhile, the case stands by, awaiting a sitting judge.
Instead of resolving the controversy, the time limit itself only wrought more; both Grupo Clarín and the government interpret the ruling differently. “Grupo Clarín must have met the deadline for submitting a compliance plan [by 7th December]. [Grupo Clarín] is a serial violator of judicial resolutions now that it has said it will not respect the deadline established by the Supreme Court,” said AFSCA president, Martín Sabbatella.
Grupo Clarín also believes the law’s validity would start on the 7th December, but they include the one-year adjustment period. According to them, 7th December 2013 is the deadline for compliance, until which point they are not obligated to—and therefore refuse to—divest anything. “From a legal point of view,” says Grupo Clarín spokesman Martín Etchevers, “nothing should happen that day.”
The deadline is more symbolic than literal. The 7th December falls on a Friday and any significant action would likely be taken the following Monday, 10th December at the earliest. Sabbatella and López estimate three to five months to review submitted compliance plans before any licences can be forcibly divested. Government officials promise there will be no nationalisation, job losses, nor interruption in broadcasting services.
During those months, the government will send assessors from the National Assessment Court, a state agency, to evaluate the assets of those companies that did not submit compliance plans voluntarily and set a “low price for the tender process,” said Sabbatella. Authorities would then select which licences to confiscate and which to leave. “The selection criteria will auction [the licences] of lesser value, leaving the title-holder with those of greater symbolic and economic value.” Nevertheless, given that Grupo Clarín so far exceeds the Media Law limits, authorities will still wield a great deal of discretion in what assets to leave the company with. Non-compliant companies that submit compliance plans by the 7th December may choose which licences to give up at their own discretion. Last month, Sabbatella gave a status update: 20 groups were non-compliant to various degrees, but Grupo Clarín was the only one deliberately planning non-compliance.
Although all parties agree the date itself is merely symbolic, D-day approaches accompanied by fanfare, trepidation, and defiance on an epic scale. “7D” repeats on traced graffiti, Facebook posts, and headlines. On the national stage, the Media Law plot makes myriads of twists, so many that the intricacies seem trivial. But they belie the heart of the issue: paradigms of popular communication and the wellbeing of Argentine democracy.
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